Mercadante’s nomination violates the State-owned Law, says ‘father’ of the norm

The participation of former minister and former senator Aloizio Mercadante (PT) in the election campaign of president-elect Luiz Inácio Lula da Silva makes it impossible for him to assume command of the BNDES (National Bank for Economic and Social Development), as announced this Tuesday (13 ). This is the assessment of Sylvio Coelho, who coordinated the drafting of the State-Owned Liability Law in the Senate in 2016.

A civil servant in the government management career, Coelho works in the office of Senator Tasso Jereissatti (PSDB-CE), who was rapporteur for the project that gave rise to Law 13,303/2016, sanctioned by then interim president Michel Temer (MDB).

According to him, article 17 of the law says that “it is prohibited to appoint, to the Board of Directors and to the board of directors, a person who has acted, in the last 36 (thirty-six) months, as a participant in the decision-making structure of a political party or in work linked to the organization, structuring and carrying out of an electoral campaign [§ 2°, inciso II da lei]🇧🇷

As the president is a member of the board, the restriction also applies in this case.

“Mercadante has a problem. He participated in the campaign. In theory, he cannot [assumir o cargo]”, says the technical advisor of the Senate.

The elected government tries to use as a precedent the appointment in 2019 of Fábio Almeida Abrahão to the directorate of privatization of the BNDES. Abrahão participated in the campaign for the election of Jair Bolsonaro in 2018 by the PSL, according to the minutes of the bank’s Eligibility Committee meeting.

At the time, the bank’s Legal Department assessed that the rule did not apply to Abrahão, “since the news published only indicates the participation of the nominee with an intellectual contribution to the elaboration of a government plan in the area of ​​infrastructure, which does not is confused with participation in the decision-making structure of a political party or in work linked to the organization, structuring and carrying out of an electoral campaign”.

When evaluating this other case, Sylvio Coelho also claims to see a problem with the indication and says that it does not serve as a precedent. “I would pose some problems there. Even in this case. Now, in Mercadante’s case, he was the leader of the electoral campaign.”

The final choice on the name rests with the board of directors of the state-owned company, which may interpret the legislation in favor of Mercadante.

Coelho claims that the restrictions imposed by the legislation have already been circumvented on other occasions, such as the approval of the names of the current and former president of Petrobras, who did not meet the requirements of the law.

Mercadante denies that the indication disrespects the law

Mercadante’s advisory stated that the nomination of the PT member does not violate the State-Owned Companies Law, because he would not have been “a participant in the decision-making structure of a political party or in work linked to the organization, structuring and carrying out of an electoral campaign”.

According to a note released by Mercadante’s team, he “did not perform any remunerated function in the campaign” for Lula, nor was he “linked to any activity of organization, structuring or carrying out the campaign”;

“In the campaign, the former minister limited himself to collaborating in the elaboration of the government program, a function not covered by the limitations of the State-Owned Companies Law”, the note also says.

3 YEARS

is the minimum time required for the nominee to cease carrying out activities in a political party or in an electoral campaign

25%

is the proportion of independent members that the board of directors must have

0.5%

is the maximum limit that advertising and sponsorship expenses may exceed the previous year’s revenue