Casa says that the Brazilian Foreign Trade Association is incapable of filing the action and that the topic discussed is not for analysis by the Court
The Senate presented a statement in the process related to the dispute over (Companhia Siderúrgica Nacional) and the steel company for controlling the actions of the (Steel Plants of Minas Gerais) asking the Court to close the ADI (Direct Action of Unconstitutionality) by “illegitimacy”.
The Upper House claimed that the action, filed by (Brazilian Foreign Trade Association), should not be recognized due to the association’s lack of legitimacy. Furthermore, it states that, as this is a case that does not involve a constitutional issue, it should not be analyzed by the Court.
The Senate also says that the entity does not belong to the category of universal legitimizers of art. 103 of the Constitution to file a concentrated control action with the STF, such as an ADI. A provision in the article legitimizes that union confederations or national class entities can propose actions.
According to the Senate, AEB is an association of companies that export and import goods and services with activities related to foreign trade and does not fit these criteria. According to the provisions of the association’s statutes, mentioned in the document, its members are not necessarily involved in foreign trade activities.
The Legislative House also argues that AEB members do not have any specific relationship with the content of the rule they are contesting. He also said that the ADI, whose function is to challenge a law or normative act, does not deal with the normative content of article 254-A, as it claims, but against the merits of the decision of the (Superior Court of Justice).
“Although the applicant alleges in his initial petition the violation of provisions of the Constitution, it is clear that the core of the controversy does not have a constitutional character. (…) Although the repercussions (mainly financial) of the issue posed are understood, the hypothesis does not challenge the establishment of concentrated control, as it characterizes, maximum, reflex offense to the Constitution”stated in a document to which the Poder360 had access.
STJ DECISION
The action in the STF seeks to reverse a decision of the STJ which, when analyzing the sale of Usiminas shares, concluded that there was a need for an OPA (public takeover offer) as it found that there was “the alienation of control” of the company Pele Ternium controlled hair Italian group Techint. As a result, it was ordered to compensate CSN in R$5 billion.
The decision of the 3rd Panel of the STJ was made in June 2024, by 3 votes to 2, when analyzing motions for clarification relating to a 2023 trial.alienation of control” would have been because the Italian company did not make an offer for CSN’s shares in Usiminas when it purchased the stake in Usiminas in 2012 and from .
DISPUTE FOR USIMINAS
The center of the dispute between the steelmakers is the definition of what would be the alienation of control of a company.
The theme is the rule of tag alongwhich allows minority shareholders of a company to stop being partners if control of the company passes to a new investor. The tool serves to provide security to members of the company regarding a new investor who does not have an initial stake in the business. It is defined in from 1976.
According to the law, the alienation “direct or indirect” of control of a publicly-held company may only be contracted under the condition that the acquirer “is obliged to make a public offer for the acquisition of shares with voting rights owned by the company’s other shareholders.”.
It also defines that the CVM (Securities Commission) will authorize the sale of control, as long as it is verified that the conditions of the public offering meet the legal requirements. The commission is also responsible for establishing standards to be observed in the public offering.
The company’s buyermay offer minority shareholders the option of remaining in the company, upon payment of a premium equivalent to the difference between the market value of the shares and the amount paid per share forming part of the controlling block”.
Ternium, after the acquisition, held around 28% of Usiminas’ shares. It still had fewer shares than the Japanese company . Although he did not have controlling interest alone, he became part of a control block of the Minas Gerais steel company, established by a shareholders’ agreement. The block is formed by Ternium, Nippon and .
CSN, which was a minority, did not receive an offer from Ternium for its stake. Her argument was that even without having control alone, she indirectly controls the company through the block with Nippon and the employees’ fund. The CVM, in 2017, that the company has purchased control. So, CSN went to court.
