The plenary session of the Federal Supreme Court (STF) decided today (1st), by 6 votes to 4, to deny an injunction (provisional decision) requested by Congress to suspend the process of sale of eight refineries by Petrobras.

The judgment prevailed in the understanding that Petrobras does not deviate from its purpose when creating subsidiaries with the sole objective of selling eight of its 13 refineries, which corresponds to about 47% of the company's current refining capacity.

According to the divestment plan, released by Petrobras last year, the subsidiary companies would be created to combine the assets into blocks, which would then be sold without the need for bidding.

For the National Congress summit, Petrobras' creation law does not allow it to create subsidiaries with the sole purpose of selling them, making the strategy a diversion of purpose.

The board of directors of Congress argued that the strategy would actually be a maneuver to "slice" Petrobras and sell strategic assets of the parent company without due legislative authorization, in a kind of veiled privatization, which would have already been prohibited by the Supreme Court itself.

The background of the discussion is the judgment in which the Supreme Court decided, last year, that the consent of Congress for the sale of state-owned subsidiaries is unnecessary, despite the mandatory legislative authorization for the sale of the controlling interest in the parent .

To the Supreme Court, Petrobras claimed that the creation of subsidiaries for the sale of assets does not violate the Court's decision, as refineries represent less than 7.5% of the company's assets, which is why there would be no risk of transferring control of the company. matrix.

Petrobras also denied misuse of purpose, stating that the Federal Audit Court (TCU) oversees the process of selling refineries and has so far not identified any irregularities. The company claimed that the strategy aims at greater profitability for the parent company, since the creation of subsidiaries would enhance the assets by facilitating the transfer of contracts, grants and operating authorizations.

The refineries that Petrobras plans to sell are: Landulpho Alves (RLAM), in Bahia; Abreu e Lima (RNEST), in Pernambuco; President Getúlio Vargas (Repar), in Paraná; Alberto Pasqualini (Refap), in Rio Grande do Sul; Gabriel Passos (Regap), in Minas Gerais; and Isaac Sabbá (Reman), in Amazonas; Lubricants and Oil Derivatives of the Northeast (LUBNOR), in Ceará; and the Shale Industrialization Unit (SIX), in Paraná.

Votes 

The rapporteur of Congress' complaint, Minister Edson Fachin, ended up unsuccessful in the trial. He voted to grant the injunction and suspend the sale of Petrobras refineries until the Supreme Court once again discussed the issue definitively and in greater depth.

"There is no claim that this sale is not possible, necessary or desirable within the company's divestment program, but that this action depends on the necessary screening by the National Congress and the bidding process," said the rapporteur when reading his vote.

Following the vote, Minister Alexandre de Moraes was the first to differ, opening the winning chain. He agreed that there is no risk of divesting shareholder control with the sale of subsidiaries, "even more so when this transaction increases the value of the shares". Therefore, Petrobras' strategy does not violate any Supreme Court decision, said the minister.

Moraes added that it has not been proven by Congress “that the parent company is sliced, allowing a hidden and partial privatization of Petrobras as a whole, without legislative authorization. I understand here that there is only one business plan for divestment ”.

Moraes 'disagreement was followed up by Minister Luís Roberto Barroso, for whom Petrobras' strategy could not constitute fraud, because it was outlined and disclosed even before the Supreme Court authorized the sale of subsidiaries without legislative authorization. "The hypothesis of alienation of control [of the parent company] is not even touched, so I don't see fraud," he said.

Ministers Dias Toffoli, Cármen Lúcia, Luiz Fux and Gilmar Mendes also accompanied the divergence, who said that the thesis that by authorizing the creation of subsidiaries for the sale of Petrobras refineries, the Supreme Court would be giving carte blanche to the slicing and annihilation of state-owned companies. "This view is totally incompatible," said the minister.

In addition to Fachin, ministers Marco Aurélio Mello, Rosa Weber and Ricardo Lewandowski joined the losing streak, who made a long vote against reducing Petrobras' presence in the refining market. He pointed out that the creation of subsidiaries would be “an expedient employed to frustrate the control of the operation by the National Congress”.

"If we said the oil is ours, but it seems that it is not so, at least to some unsuspecting ones," said Marco Aurélio, also a loser. Minister Celso de Mello did not participate in the trial.