The 1988 Constitution subjects indirect administration to external control by the Congress, assisted by the Tribunal de Contas da União (TCU). This arrangement does not provide a clear answer to the specific question of when a loss suffered by a company controlled by the Union can be investigated through a special accounting process (TCE) and result in a debt being imposed in favor of the company.
The TCU has been dealing with this issue for decades. The use of TCE to investigate losses of state-owned companies and determine reimbursement to their coffers was even addressed by the Supremo Tribunal Federal (STF), which made statements on the matter in different ways and was decisive for the current understanding of the Court of Accounts.
Understanding the Limits of TCE
A long-standing practice – and its limits – are exemplified by the Decisão 156/2001-2ª Câmara, involving BR Distribuidora, which shows a TCE aimed at investigating losses and promoting reimbursement to the company’s coffers.
Other decisions from the period show some of the limits that the TCU itself recognized for the use of TCE in recovering losses suffered by state-owned companies. In Decisão 859/1999-Plenário, related to Caixa Econômica Federal, it was understood that the company itself should, as a rule, recover credits resulting from its operations.
The Decisão 896/2000-Plenário adopted a similar orientation, considering that state-owned companies, knowing their operations and having their own structure for investigation and collection, would be in better conditions to seek reimbursement.
STF Decisions Impact TCU
In 2002, the STF decided on MS 23.627 and 23.875, filed by Banco do Brasil against TCU determinations to establish a TCE in banking operations. The court granted security in both cases, stating that the majority participation of the Union does not make the assets of a mixed-economy company public.
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This reasoning was central to dismissing, in those cases, the TCU’s competence to establish a TCE. If the loss affected private assets of the company, it did not automatically follow that there was public money, goods, or value subject to the accounting process.
The TCU’s jurisprudence, however, did not immediately adjust to this orientation. In Acórdão 989/2003-Plenário, the TCU withdrew a determination for Banco do Brasil to establish a TCE on irregularities in its advertising area and determined that the bank should take the relevant measures.
However, a few months later, Acórdão 1.486/2003-Plenário maintained a TCE related to Banco do Brasil‘s credit operations with Construtora Encol, under the grounds that the writs of mandamus referred to specific cases and did not prevent that particular investigation.
STF Revises Previous Ruling
In 2005, the STF revised its previous orientation. In MS 25.092 and 25.181, it recognized the TCU’s competence to oversee public companies and mixed-economy societies. In MS 25.092, the leading vote stated that there would be no “despublicização” of state capital when transferred to a public company or mixed-economy society, so a loss to Banco do Brasil’s assets would also constitute damage to the Union’s coffers.
The TCU’s Acórdão 573/2006-Plenário reproduced the STF’s understanding that damage to a mixed-economy society’s assets also affects the public participation in its capital. Acórdão 2.446/2008-Plenário added that submission to private law does not exclude the TCU’s jurisdiction, although commercial contracts must be controlled according to their own regime.
In Acórdão 3.006/2015-Plenário, this reasoning was applied to Petrobras: as the Union is its majority shareholder, losses to the company’s assets would reverberate in the public coffers and justify, according to the Tribunal, the incidence of Article 71, II, of the Constitution.
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Acórdão 1.361/2021-Plenário, related to the works of Refinaria Abreu e Lima, dealt with the scope of reimbursement. The defense argued that any condemnation should be limited to the portion of the loss corresponding to the Union’s participation in Petrobras’ capital. The TCU rejected this thesis: the damage had been suffered by the company, and restitution should be entirely destined to it; once its assets were recomposed, each shareholder would be benefited in proportion to their participation.
The TCU considers that the loss suffered by Petrobras, a mixed-economy society with private shareholders, reverberates on the Union’s participation in its capital. Once the damage is ascertained, however, the debt is imposed for the integral value of the loss in favor of Petrobras, and not only in the proportion corresponding to the state’s participation.
Acórdão 1.866/2024-Plenário recently reaffirmed the TCU’s competence to investigate losses suffered by Petrobras through a TCE and impose a debt. It rejected arguments that the company itself should claim the losses or that the Tribunal should only determine the adoption of necessary measures.
Limits of TCE Application
Not every loss of a state-owned company turns into a TCE. Acórdão 153/2006-Plenário – later reinforced by Acórdãos 3690/2013-Plenário and 3.824/2015-Primeira Câmara – established that the instrument should be used primarily to seek reimbursement for losses resulting from the management of public resources.
This formula establishes a limit but leaves a question open: what characterizes, for this purpose, an act of management? If taken broadly, the expression provides little clarity, as a large part of the decisions made by administrators of a company can be described in this way.
The precedent rules out certain obligations arising from private relationships from the TCE but does not offer a precise criterion for separating these situations from losses that can be investigated by the TCU.
