STF decides that CEA employees cannot be transferred to the GEA staff – News of Brazil
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Paulo Silva
Policy Editor
Judging the request of employees of the former state-owned Companhia de Eletricidade do Amapá (CEA), the Federal Supreme Court (STF) decided that the provision of the state Constitution that allows the transposition, absorption or use of public employee in the statutory framework of the state public administration is unconstitutional without prior approval in a public tender (article 37, II, of the Federal Constitution).
With that, the STF declared unconstitutional article 65-A of the state Constitution, law 2.281/2017 and decree 286/2018 of Amapá. The terms provided that, in the event of extinction, merger, incorporation or transfer of ownership to the private sector or to the Union of a public company constituted at the time of the extinct territory of Amapá, the employee who had joined a public tender in certain legal entities could choose for being used in the staff of the state public administration.
The thesis was proposed by the rapporteur of the action, Minister Nunes Marques. All ministers followed the vote of the rapporteur. Minister Dias Toffoli disagreed only with regard to the modulation of the effects. The judgment, with general repercussions, took place in a Virtual Plenary session that ended on Wednesday (12).
The Court analyzed an appeal by the government of Amapá that claimed that the use of CEA employees in effective and statutory positions violates the rule of the Federal Constitution that prohibits the investiture of public servants without approval in a public tender (article 37, item II). It also maintained that the transposition is impossible even if the employees are public servants, due to the lack of compatibility between the position they currently occupy and any position available in the direct administration.
The local government also pointed out a violation of Binding Precedent 43 of the STF, which considers unconstitutional any type of provision that favors the investiture of a civil servant, without prior approval in a public tender for its provision, in a position that does not integrate the career in which it previously invested.
CEA was privatized in June 2021 in an auction won by Equatorial Participações e Investimentos, conducted by the National Bank for Economic and Social Development (BNDES) with the participation of the Ministries of Mines and Energy and Economy.
Company employees questioned state decree 286/2018 based on article 65-A of the Amapa Constitution. They intended to ensure that the transfer to the staff of the local government occurred when the reasons provided for in the state Constitution, pursuant to article 65-A, were present. The Amapá Court of Justice (TJAP) had recognized the right of company employees to choose to join the state’s staff.
In the vote, Nunes Marques considered that, until today, the local government has not formalized the extinction, merger, incorporation or transfer of ownership of CEA, either to the private sector or to the Union. “That is, the triggering event for the transfer of company employees to state civil servants has not yet occurred”, he highlighted.
In addition, the minister highlighted that the career does not exist in the framework of civil servants of the direct administration of Amapá. “Therefore, it is impossible to absorb it.”
The minister recalled that the Federal Constitution establishes that tenure in a public position or job depends on prior approval in a public tender, according to the nature and complexity of the position or job, with the exception of commissioned positions. “Such requirement is based on the postulate of isonomy of access to public positions and in the implementation of the principles of administrative morality and impersonality”, he stated.
Nunes Marques pointed out that the jurisprudence of the STF is firm in the sense that it is necessary to observe the prior approval in a public tender, both in the original provision and in the derivative. “The transposition, absorption or use of servers in other bodies or entities of the direct, autarchic and foundational Administration of the same state are figures prohibited by the current constitutional order, for violating the principle of public tender”.
Divergence
Despite accompanying the rapporteur regarding the establishment of the thesis of repercussion, Justice Dias Toffoli presented partial divergence to propose the modulation of the effects of the judgment. In the losing vote, the minister suggested maintaining the validity of the use of CEA public employees for the staff of the state public administration who exercised the right of option until the date provided for in article 8 of decree 286/2018, which was 28 March 2018.
“With the privatization of the company, public servants opting for the transfer of office, based on objective good faith and supported by current legislation, cannot return to their previous status, that is, their status as public employees, which would cause them harm. irremediable, which must be avoided by modulating the effects of this judgment, maintaining the validity of the option for use in relation to those who exercised their right within the period provided for in the aforementioned decree.”
In addition, it proposed that, in line with the jurisprudence of the STF, save public servants who have already retired and those who have already met the conditions for retirement on the date of publication of the minutes of the judgment.
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