Opposition criticizes AGU for generating legal uncertainty in privatizations

The Economic Affairs Committee (CAE) of the Senate approved, this Tuesday (21), a request for an invitation to the Advocate General of the Union (AGU), Jorge Messias, so that he explains an ordinance that suspended the use of precatories in lawsuits privatizations and concessions.

The author of the request is Senator Rogério Marinho (PL-RN). The opposition leader’s request aimed at calling the Messiah, but it was changed to an invitation in the plenary of the collegiate. As this is an invitation, the AGU will be able to choose whether or not to go to the Senate to provide clarifications to the commission.

Precatorios are titles issued by the Judiciary for the payment of debts that the State has with people or companies as a result of final judicial decisions, without the possibility of appeal. These roles are used to ensure the staggered fulfillment of obligations. But, often, they are not paid by the State on time and accumulate for years, harming creditors.

The use in privatizations, for example, has the advantage of benefiting both creditors who compete in auctions, who can use precatorios as credit, and the Union, which writes them off their debt, guaranteeing investments and better public services in the end.

The parliamentarian says that the bureaucratic measure, in practice, generates serious mistrust about the next deals involving partnerships between the State and the private sector, in addition to increasing financial and legal embarrassments to newly signed contracts, such as those for large airports.

For Marinho, AGU Ordinance 83, of March 14, 2023, brought legal uncertainty to the signed contracts involving billions of reais in federal assets for private management, which also scares investors, especially in the infrastructure area. He recalled that Constitutional Amendment 113/2021 legalized the possibility for the Union’s precatory creditor to use his credit to buy property, pay off debt and pay for the granting of public services.

In justifying his request, Marinho explains that Federal Decree 11,249/2022 determined that the AGU should regulate the procedure for meeting accounts – when the creditor writes off the debt with the Union what he has to receive from it -, which already happened at the end of last year, via Ordinance 73/2022. But the new ordinance of the body in the current government revoked the previously established norm and instituted a working group to elaborate, in 120 days, extendable for another 120, another norm to regulate the use of precatories. As a result, adds the senator, the use of precatories as a mechanism to attract investors and reduce the Union’s debt was hampered.

In a note, the AGU informed that the receipt of precatories to pay concessions will be up to each federal agency or entity, based on the existing constitutional provision. However, the body’s recommendation is that everyone wait for a new ordinance, in order to give greater legal certainty to the issue.