A divergence between the (Supreme Federal Court) and the (Federal Audit Court) regarding the limitation periods for processes has led to the annulment or put public coffers at risk.
The controversy arose after the decision to judge companies and managers targeted in actions to compensate the Union for misappropriation of resources. He saw the delay as an affront to the Constitution and began to .
The main cases are linked to . The disagreement between the courts has already led to the annulment of two TCU processes whose fines, combined, could exceed R$1.2 billion.
The Supreme Court is also preparing to judge two other cases related to Petrobras contracts that could result in the overturning of a R$1.4 billion compensation sentence. There is still another case pending judgment in the billion-dollar court.
Since 2016, the Supreme Court has been giving messages to the TCU that processes requesting compensation for irregularities in the use of public resources may be time-barred and have a period of five years to be closed.
The companies sentenced by the TCU to pay compensation began to claim that their processes had already exceeded that time. In 2020, the court’s ministers began to give decisions that went against the judgments of the court of accounts.
This year, the divergence became more pronounced, with an avalanche of Supreme Court cases filed by companies against the TCU. The STF has accumulated more than 800 monocratic decisions on the subject — of these, 158 were taken to the classes to be endorsed.
TCU ministers heard by the Sheet argue that the problem arose when the Supreme Court changed its understanding and started to set a deadline for processes, applying the rule retroactively.
On the other hand, members of the STF state that the solution found was reasonable and guarantees due legal process, preventing the actions from ending.
Until 2016, the Supreme Court understood, based on article 37 of the Constitution, that processes seeking reimbursement from public coffers were imprescriptible.
In practice, an irregularity in a contract could be judged decades later by the Court of Auditors, and compensation would have to be paid after the companies were convicted.
This understanding changed in a process led by minister Teori Zavascki. The Supreme Court determined that processes of this nature could not be eternal. A year later, the court defined that the period to be applied would be five years. In 2022, the court applied this understanding, definitively, to the actions in the TCU.
The Court of Auditors, to adapt, created a resolution establishing a five-year deadline for the processes. The document, however, included loopholes so that the count could be interrupted in various circumstances.
One of the processes was interrupted 11 times at TCU, for various reasons. The STF minister saw the measure as a way to circumvent procedural deadlines and articulated a solution to the case with the members of the Supreme Court.
“It cannot be accepted that, as a result of numerous interruptions in the statute of limitations, a certain process continues ‘indefinitely’, representing a true ‘Sword of Damocles’ over the heads of citizens and companies subjected to accounting processes”, wrote Gilmar in one of his decisions.
The change in rules at the STF and the TCU’s delay in analyzing the cases caused a scenario of mass annulment of convictions to reimburse public accounts. This embarrassment has affected processes of different natures — such as those resulting from Operation Lava Jato.
Among the cases that cause concern in the TCU is one opened in 2014 to analyze possible losses for the country with the sale of 50% of Petrobras’ assets in Africa to the investment bank BTG Pactual. The operation closed for US$1.5 billion.
The case has not yet been judged, and the parties have already appealed alleging prescription, which was denied by the TCU, which cited several interruptions in the deadline since 2014.
Another action that is at risk of falling involves a fine of R$1.4 billion imposed by the TCU against businessman Sérgio Cunha Mendes, prosecuted on charges of fraud in the construction of the Presidente Getúlio Vargas refinery, owned by Petrobras.
According to Mendes’ defense, the TCU report used for his conviction is not conclusive nor does it show his participation in the suspicions.
A Sheet It also identified two other injunctions granted by the Supreme Court to suspend actions in the Court of Auditors whose fines, if confirmed, could exceed R$1.2 billion.
One of them refers to , former Minister of Finance and former president of BNDES.
Accused at the TCU of irregularities in BNDESPar’s shareholding in Bertin S/A, he denied the irregularities to the Supreme Court and said that the court of accounts, in an “illegal and abusive” way, condemned him in a process already prescribed.
A similar case occurred with the company Skanska Brasil LTDA. She was the target of the TCU in a process to investigate irregularities in the contract for the works of the Atmospheric and Vacuum Distillation Unit at the Rio de Janeiro Petrochemical Complex. The company argued that the case was time-barred.
In a statement, the TCU stated that ministers Vital do Rêgo (president), Antonio Anastasia and Bruno Dantas are preparing to request hearings with STF ministers to pacify the matter. There is no set date for this yet.
The court also said it would prepare a study on the processes that, according to the STF rule, would be prescribed. The survey was suggested by Dantas.
For Maria Rost, specialist in public law and economic regulation and partner at Fenelon Barretto Rost Advogados, the recent decisions of the STF mark a watershed, and the TCU will need to speed up the acts, while public managers must examine the responsibilities that may have been affected by the prescription.
“This is not just a technical-procedural adjustment, but a structural impact on the accountability system in the public sector. Legal certainty, so relevant for managers and operators, requires clarity about when it starts and when — in fact — the deadline is interrupted”, said the lawyer.
