STF and PGR can be obstacles

Approved by the Chamber of Deputies on August 5, the bill that paves the way for the privatization of Correios still depends on the approval of the Senate and the sanction of President Jair Bolsonaro. Even if it overcomes these stages, the proposal could encounter obstacles in the sequence, more particularly at the judicial level.

A direct action of unconstitutionality (ADI), proposed to the Federal Supreme Court (STF) by the Association of Postal Professionals (ADCAP), challenges the privatization of the public company. In this action, the Attorney General’s Office (PGR) has already expressed its opposition to the total privatization of the company. In the opinion of Attorney General Augusto Aras, the transfer of the national postal service and air mail to the private sector is unconstitutional. The STF itself had already expressed itself on the issue, in 2005, when it had defined that postal services should be provided by the State.

Written by the Executive, PL 591/2021 is being analyzed in the Senate. If approved, it will be the government’s second privatization victory – the first came on June 21, when lawmakers approved Interim Measure 1.031, which paves the way for the privatization of Eletrobras. The federal government expects to sell 100% of the crown corporation, by auction, in the first quarter of 2022.

ADCAP and other worker representatives have spoken to congressional advisers in the Senate to try to overturn the House decision. As for the expectation of mobilizations, the association affirms that the “climate is bad” and that in addition to the possibility of privatization, there are other issues which concern employees, such as the public pension fund.

Why STF can be an obstacle to the privatization of Correios

Filed by ADCAP, ADI 6.635 / DF, which falls under the report of Minister Carmen Lúcia, maintains that Decree 10.674 // 2021 – which included the Brazilian Society of Posts and Telegraphs (ECT) in the National Program of privatization (PND) – is unconstitutional. ADI also questions the provisions of Laws 9 491/1997 and 13 334/2016.

In a decision rendered in 2005, the STF had already ruled on the issue, specifying that “postal services are of a public nature and must be offered and provided by the State”.

The Constitution states that it is the Union’s responsibility to maintain the national postal service and air mail. “There is a whole discussion about the meaning of the interview. Whether the maintenance, for example, is necessarily done directly by the Union or if the Union can provide such a service and the maintenance would be done through a control by the Union ”, explains the specialist in Law constitutional Acacio Miranda.

The government, in turn, has taken as the legal basis for the privatization of the public enterprise a generic authorization for privatization contained in point I of art. 2 of Law 9491/1997. According to the Executive, this is a legal norm which allows, in theory, the privatization of postal services.

What Bill 591/2021 does is establish that the maintenance of the services provided for by the Constitution “will be achieved by guaranteeing the provision of the universal postal service and by regulating and organizing the national system of services. postal ”. According to the proposal, this point would be satisfied by a concession, and the new operator of the company would have to obey the order of a universal postal service, serving the entire population and ensuring the continuity of the universal postal service.

For ADCAP, the government’s proposal has a flaw in its origins. “Point X of Article 21 of the Federal Constitution does not allow the indirect provision of national postal and air mail services,” the association told ADI. Still for the association, the PL “has very serious design flaws” and could endanger the country’s postal service. The group also believes that the “rushed procedure” which has been given to the proposal prevents “these imperfections and risks from being properly analyzed and corrected”.

“I do not see how the decision could be different in the sense of accepting what we are talking about,” said Marcos Cesar Alves da Silva, vice-president of ADCAP. “But a case like this couldn’t be settled in cash, as they do. Those who have privatized companies have spent ten years preparing laws, organizing the industry, structuring a regulatory agency. thus, they had problems. “

The ideal to privatize the Post would be to change the Constitution, believes the specialist

For Acacio Miranda, specialist in constitutional law, the ideal way would be to propose an amendment to the Constitution to change article 21 of the CF. “[Ele poderia ser alterado] substitute the word “maintain” for “grant” or allow a third party to exploit it. The verb maintain, with the connotation established in the CF, is subject to interpretation: direct maintenance by the Union itself through La Poste or maintenance of the service even through a third party, which would be the conceding this service, ”he says.

“The ideal is that the National Congress, following the quorum of a constitutional amendment proposal, discuss all the possibilities, so that there is legal certainty in the maintenance of the service and legal certainty for the providers and those who take this service, ”confirms Miranda.

Marcos Cesar Alves da Silva, vice-president of ADCAP, affirms that “the government movement was already born with original problems, which are constitutionality”. “To relocate the Post, the government would need to do a PEC, since the Federal Constitution provides for the provision of postal services by the Union,” he said.

Asked about the association’s reaction if the proposal were sent to Parliament through the PEC, the employee representative maintained his opposition to the initiative. “The postal service is public in nature, and in most countries of the world it is provided by a public entity. In only eight countries, it is completely private, ”he says. For him, territorial extension and regional asymmetries can only be tackled by the public authorities.

PGR does not agree with the total privatization of postal services

ADI also received a positive statement from the Attorney General of the Republic, Augusto Aras. He ruled in favor of the partial unconstitutionality of I of art. 2 of Law 9 491/1997, “in order to withdraw from the normative force of the legal provision the authorization to privatize” the company. Aras also spoke in favor of declaring Decree 10.674 unconstitutional.

“Point X of Article 21 of the Federal Constitution does not allow the indirect provision of national postal and air mail services. The Brazilian Postal and Telegraph Company – ECT – could even be split up, with the privatization of the part of the company that carries out economic activity, ”the prosecutor said in the notice.

“It is unconstitutional the transfer to the private sector, by license, concession or permission, of the national postal service and air mail,” Aras said.

What is discussed in Congress

The bill approved in the plenary session of the House on August 5 authorizes the sale of Correios at auction and creates a regulatory framework for the sector, currently in a monopoly regime, and defines the general rules of the National Postal Services System (SNSP) , as well as the rights and duties of consumers and generic rules for private companies entering the postal market.

The buyer of the public enterprise will have to assume the future concession for the maintenance of postal services in all regions of the country. Although it ends the monopoly of Correios on this service, leaving room for other companies, the text determines that the company, after privatization, will still be the sole supplier for “at least five years”.

According to the BNDES schedule, the proposal must be approved by the end of this August so that the event can take place in April 2022. The rules will also need to be approved by the Federal Court of Auditors (TCU) .

PL also prohibits employees from being dismissed without cause within 18 months of privatization. In addition, employees must be presented with a voluntary departure plan (VDP) with a membership period of 180 days from the privatization period, in addition to initiatives for their professional requalification.

The proposal also changes the powers of the National Telecommunications Agency (Anatel), which will be renamed the National Communications Agency (Anacom), also regulating postal services.

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