TCU decision on Congonhas exposes AGU – 07/21/2023 – Panel SA

The decision by TCU (Union Court of Auditors) Minister Walton Alencar Rodrigues in which he denies the suspension of contracts for the last round of airport privatizations contradicts the AGU (Union Attorney General), which barred the use of precatorios for the payment of grants of these concessions.

As Panel SA reported, PT deputies made a representation to the court of accounts raising suspicions of irregularities in three blocks of airports auctioned and transferred to the private sector, including Congonhas. They asked for an injunction to suspend the contracts.

One of the allegations was that the three companies that took over the terminals had not met the payment deadlines for the first installment agreed with the government.

At the time the concession contracts were signed, between March and April of this year, the companies presented precatorios (government debt securities with final court rulings) as part of the payment for the grants.

Only the precatories of North Block II (Belém and Macapá), of R$ 18.7 million, were accepted. The requests for blocks SP-MS-PA-MG (Congonhas and ten more terminals) and General Aviation (Campo de Marte and Jacarepaguá) were under analysis.

With the delay in authorizing payment, caused by resistance from the government, and to avoid uncertainties related to compliance with contractual deadlines, the two concessionaires opted to withdraw the proposals and pay the grants in full in cash.

In May, the AGU suspended the receipt of these bonds by the federal government until a new regulation was published, creating legal uncertainty in the market. The agency’s proposal is that, based on the new norm, the burden of precatories will only be accepted if it is provided for in the public notice for the concession.

However, in his decision, Minister Walton Alencar Rodrigues stated that the presentation and receipt of titles has constitutional support and, according to the text of the Magna Carta, is self-applicable, even with the divergence of the AGU.

In his vote, he states that, according to the Constitution, it was not necessary for public notices for concessions to explicitly include the possibility of using precatories.

For Alencar, the argument raised by the parliamentarians was empty. Still according to the minister, the modeling of the bidding process and the formation of the three blocks, questioned by PT members, passed the TCU plenary scrutiny and no irregularities were found.

“This Court ruled in favor of continuing the concession process, and the present case file cannot re-examine the matter, not even to assess the supervening allegation of risk of concessions to national sovereignty, even more so because it is an empty argument, not accompanied by concrete or abstract evidence”, writes the minister in the order.

The merits of the case will be judged by the plenary. Until then, Alencar asked that the issues raised by the deputies remain under analysis. Therefore, it determined that Anac (National Civil Aviation Agency), the National Civil Aviation Secretariat of the Ministry of Ports and Airports and the three blocks that manage the airports —XP Infra, Aena and Consórcio Novo Norte Aeroportos — be heard within 15 days.

With Diego Felix

PRESENT LINK: Did you like this text? Subscriber can release five free hits of any link per day. Just click the blue F below.