PEC dos Precatórios becomes a target in the STF in action by OAB, judges and union entities

The flexibilization of the payment of debts of the Union recognized by the Justice, resulting from the PEC (proposed amendment to the Constitution) of the Precatórios, started to be questioned in the STF (Supreme Federal Court).

OAB (Ordem dos Advogados do Brasil) and associations of magistrates and civil servants filed an ADI (Direct Action of Unconstitutionality) against the changes. They ask, as a precautionary measure, for the suspension of amendments enacted by Congress, in addition to the declaration of unconstitutionality of the measures.

Also part of the group are AMB (Association of Brazilian Magistrates), CSPB (Confederation of Public Servants of Brazil), CSPM (National Confederation of Public Servants and Employees of Foundations, Municipalities and Municipalities), Conacate (National Confederation of Typical State Careers and Activities) and Cobrapol (Brazilian Confederation of Civil Police Workers).

The constitutional changes contested by the entities were made after a government proposal last year, which justified the need for the measure citing the expressive growth of precatories in 2022 (from 61%, to R$ 89 billion). The Executive stated that the amount, along with the need for other expenses (such as social benefits), would not fit within the spending ceiling.

Congress, after discussions, approved the flexibility requested by the government in two amendments – after slicing the text for it to be approved more quickly.

In one of them, the rule for correcting the spending ceiling changed (causing its expansion). In another, it created an annual limit for the payment of precatories within the ceiling.

The amount of unpaid precatories started, with the measure, to be postponed to subsequent years – with the possibility of being paid off earlier through alternative measures (such as payment with a 40% discount, settlement of active debt, meeting accounts with debts of subnational entities, purchase of public real estate, among others).

The action in the STF calls the measures a “moratorium” on precatories and claims that the amendments violated a significant set of fundamental rights and guarantees.

The entities raise a set of arguments to point out both the formal unconstitutionality, as a result of what they call “defects in the procedure adopted in the approval of amendments”, and the material unconstitutionality regarding the content of the approved norms.

On the first front of argument, on the procedures, a maneuver by the Speaker of the Chamber, Arthur Lira (PP-AL), who authorized parliamentarians on mission to participate in the vote, is specifically contested.

The maneuver was fundamental to approve the PEC, as shown by the leaf. Eight deputies voted thanks to the loophole created, and the text was approved with a gap of just four votes.

“The parliamentarians temporarily removed from their duties as a result of an official mission abroad could not have voted in the session in question, as they were authorized to leave due to an official commitment. Therefore, there was a circumvention of the due legislative process and violation of the public interest […], which implies a direct offense against the principle of administrative morality and impersonality”, say the entities.

Another contested point is the slicing of the proposal. The PEC, after approval by the Chamber, was sent to the Senate. The proposal was amended in the new House – but not entirely returned to the Chamber.

Through an agreement between the leaders, the presidents of the Chamber and Senate decided to enact the portion of the proposal on which there was consensus. “The enactment of a section that has not been amended […] violates the constitutional requirement of approval by the two houses of the National Congress. This is because the PEC consists of a single proposition, which deduces constitutional changes designed to make sense in its entirety”, say the entities.

In the discussion on the content of the proposal, the ADI raises objections to six points. Among them, the establishment of a ceiling for the payment of precatories.

“The unconstitutional and arbitrary stipulation of a limit for the payment of debts […], the device [estabelece que] only [haverá] guarantee to receive the amounts in the following financial year upon waiver of 40% of their credits, a true state confiscation of the citizens’ assets”, say the entities.

It is also questioned the use of Selic to correct the values ​​of precatories. For the entities, the index is inadequate, unconstitutional and does not cover inflation. “Updating below the inflation rate, unilaterally and imposingly, represents confiscation”, they say.

The entities also question the so-called meeting of accounts, a mechanism through which taxpayers who owe the Union can reduce the debt in the same amount of the precatories that they have to receive from it. They say that this measure was already declared unconstitutional by the STF after the 2009 amendment and that the text violates the separation of powers by restricting the effectiveness of judicial decisions.

Sought, the Ministry of Economy reported that the PGFN (Attorney General’s Office) has not yet been notified as to the content of the lawsuit and that, in due course, “will present, together with the AGU [Advocacia-Geral da União], all the information necessary to demonstrate to the STF the constitutionality of the constitutional amendments”.