Petrobras intends to sell the refineries of Landulfo Alves (BA), Presidente Getúlio Vargas (PR), Abreu e Lima (PE), Alberto Pasqualini (RS), Gabriel Passos (MG), Isaac Sabbá (AM), Lubnor (CE) and the Shale Industrialization Unit (PR).
In the lawsuit, Congress argued that Petrobras was failing to understand the STF’s own understanding by dismembering the parent company and then selling these assets without authorization from the legislature.
By a majority, the STF ministers assessed that the Court’s understanding was not breached, and that the operations represent a divestment on the part of the state-owned company – and not a fraud to transfer share control to the private sector.
Ministers decided on an injunction request that the sale be temporarily suspended until the final judgment of the suit. The merits of the request have yet to be judged, but no date has yet been set.
After the trial, Petrobras president Roberto Castello Branco celebrated the result. “We are very happy. We always believe in the positive result because we have confidence in the capacity of our Supreme Court, ”he said.
For Senator Jean Paul Prates (PT-RN), president of the Mixed Parliamentary Defense Front of Petrobras, the Supreme Court did not recognize the “risk” of the decision to sell the subsidiaries in authorization by the Legislature. “It is, however, only an injunction [provisória], to be confirmed or revised on the merits. We will continue debating this topic, so that people understand what is at stake, not only for the future of Petrobrás, but also for the country’s energy autonomy “, he said.
The Brazilian Institute of Oil and Gas (IBP) stated in a note that the Supreme Court decision will open an opportunity to create an “open, plural and competitive” market and indicates that the opening of the refining market “will take place in a safe environment. legal and regulatory, when the country so needs long-term investments in infrastructure “.
In June 2019, the STF defined that the government needs authorization from deputies and senators to privatize state-owned companies, but this rule does not apply to subsidiaries, that is, to subdivisions created by public companies to operate in specific branches.
At the time, the STF defined that the sale of state-owned companies that implies loss of shareholding control must meet two criteria: Congressional endorsement and bidding. This only applies to parent companies and does not apply to subsidiaries of these state-owned companies.
In questioning the STF, Congress states that Petrobras has plans to create subsidiaries to, in this way, get out of the constraint and put the assets for sale.
It would be a way to circumvent the Supreme’s understanding. This is because, according to the lawsuit, the decision is not guided by new business opportunities, but by the interest in divesting (getting rid of) assets. This practice is called “white privatization”.
Government and Petrobras celebrated STF decision on privatization of subsidiaries in 2019
The trial started on Wednesday (30), with oral support from the parties to the case. This Thursday, the rapporteur, minister Edson Fachin, voted to grant the preliminary injunction to Congress and suspend the sale of assets.
For the minister, Petrobras cannot sell a subsidiary that was created just for this purpose, in an attempt to circumvent the need for Congressional authorization.
“I understand that the free creation of subsidiaries is not possible with the consequent transfer of assets and subsequent direct sale in the market selling the assets of the parent company,” said the rapporteur.
The Minister Alexandre de Moraes disagreed with the rapporteur, stating that this is not a transfer of share control, but a divestment plan. The understanding was followed by most of the other ministers.
“I understand here that, on the business level, there is a disinvestment [para] consequently, ensuring greater profitability, efficiency and effectiveness for the company ”, said Moraes.
The Minister Luis Roberto Barroso agreed with Moraes’ vote and also disagreed with the rapporteur Edson Fachin. For him, “there is not even a tangible transfer of control” and Petrobras has been recovering from a loss and from poor management, trying business alternatives.
“I don’t think it’s up to the STF to interfere,” he declared.
To the minister Rosa Weber accompanied the rapporteur, understanding that there is “apparent affront” to what the Supreme Court decided on the sale of subsidiaries. Then, Dias Toffoli and Cármen Lúcia followed the divergence opened by Moraes.
Ricardo Lewandowski stated that this decision to sell is a “negation of the objectives that led to the creation of Petrobras”.
“I believe that the creation of subsidiaries, as has been practiced, that is, solely for the purpose of selling assets, not only affronts the Constitution and how much decided by the plenary, it also seems to configure an expedient employed to steal control by Congress National, “he said.
The Minister Gilmar Mendes accompanied the divergence. “I consider unfounded the thesis that the acts would constitute a deviation in purpose,” said the minister. “Petrobras’ plans to divest precede the decision of this Court.”
Marco Aurélio Mello he said that the main objective of the Constitution is the preservation of the national patrimony, “but it seems that it is not so, at least for some unsuspecting ones”. “I follow the reporting minister,” he said.
Last to vote, the President of the Court, Minister Luiz Fux, formed the majority against the suspension. “This decision is at the forefront of the economic analysis of law, which preaches efficiency. All countries in the world preach divestment to grow. ”
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