The STF (Federal Supreme Court) approved this Thursday (11) the agreement signed between the Union and Axia, formerly Eletrobras. The document provides for state seats on the company’s boards in exchange for the company’s withdrawal from investments in the Angra 3 nuclear power plant.
The score reached a majority of 6 votes for the total validation of the agreement, while 4 others chose to approve only the part relating to the participation of the State in the company’s boards of directors. The decisive vote came from Minister Luiz Fux, the only one who has not yet spoken during the debate.
The agreement was signed this year between the government and the company within the Chamber of Conciliation and Arbitration of the Federal Public Prosecutor’s Office, after the Lula administration (PT) filed an action of unconstitutionality against the law that privatized the company.
The government argued that the union maintained 42% of the company’s voting shares, but in practice this right was limited to less than 10%. The AGU representative in the case, Flávio José Roman, said the union’s request was aimed at repairing the asymmetry.
The action gave rise to a negotiation, with the company also putting on the table the elements that interested it. The main thing is the exit from the investment obligation in Angra 3 – a job that has lasted for 39 years, has been paralyzed since the Operation Lava Jato investigation and requires an additional 23.9 billion reais to complete.
The government and the company reached an agreement meeting both interests, increasing the state’s influence in the company and freeing it from Angra 3’s investments. The document was approved by the company’s shareholders’ meeting and is being analyzed by the Supreme Court.
Minister Kassio Nunes Marques, rapporteur of the process, voted for approval in virtual plenary and was initially accompanied by Ministers Edson Fachin and Dias Toffoli. Alexandre de Moraes called for the so-called climax, when the case will begin to be debated in physical plenary.
The debate was divided. On the one hand, for total approval, Nunes Marques, Cristiano Zanin, André Mendonça, Dias Toffoli, Gilmar Mendes and Fux voted. On the other, with partial approval, Moraes, Flávio Dino, Cármen Lúcia and Edson Fachin.
Moraes was the first to express his disagreement and defended approving only the part that guarantees the union council in the company. For him, this was the central theme of the government’s action in this affair: the state’s right to vote in the company. All other subjects would be, in his words, “foreign” to the debate.
“In a first step, the total preservation of what was contested was analyzed on the condition that there is compensation, with the fixing of vacant positions for the union within the board of directors and the supervisory board of the company. So far, in my opinion, this corresponds to the objective”, said Moraes. “But from that point on, issues completely unrelated to the constitutionality process came into play.”
“The STF does not have the slightest possibility to analyze whether or not these agreements were aimed at the public interest. To approve the revision of the investment agreement in the Angra 3 nuclear power plant (and other points). Especially since any original action aimed at defining these points would not even fall under the responsibility of the STF”, he declared.
Dino agreed with Moraes, called the topics tortuous (jargon for topics unrelated to the original proposal), and called the AGU’s work in the matter embarrassing. Ministers from both sides used different elements to defend their respective views and Fachin changed his vote, previously cast during the virtual plenary, to side with Moraes.
The position of Moraes and other ministers who agreed with the thesis was not to invalidate the agreement, but to say that it is not the competence of the STF to validate the part that deals with investments and other points of the document. Dino, one of the most vocal in challenging the deal, said nothing prevents the deal from taking an extrajudicial route. However, they left open the possibility that the matter would come back to the STF from an inspection point of view.
As a backdrop to the debate, the Angra 3 plant is a mess that involves both public and private resources. Axia was forced to invest in the project during the privatization process, as it held a stake in Eletronuclear (owner of the Angra nuclear power plants). But the company wants to get rid of the project because it sees no financial return.
The Lula government, however, repeatedly signals that it wants to finish the job. Amid the discussions, Axia sold its stake in Eletronuclear to J&F —a group of the Batista brothers, owners of the meat producer JBS—, which will retain the assets and liabilities linked to the issue.
MAIN POINTS OF THE AGREEMENT DISCUSSED
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Axia now guarantees the Union 3 members out of 10 on the board of directors and 1 member out of 5 maximum on the supervisory board. The figures could be revised if the Union’s participation falls below 30%
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Axia’s obligation to invest in Angra 3 is suspended and revoked if the government chooses to resume work on the plant
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Axia will finance Eletronuclear, through bonds, for an amount of R$2.4 billion with a duration of ten years to invest in the Angra 1 useful life extension project.
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