The National Council of the Public Prosecutor's Office (CNMP) published CNMP Resolution 300/24, which regulates the performance of state public prosecutors' offices in the oversight of private law foundations.

Based on article 66 of the Civil Code[1] and in view of the sparse or non-existent regulation of state prosecutors' offices, CNMP Resolution 300/24 seeks to standardize procedures to ensure greater effectiveness, predictability, and transparency in the surveillance, or inspection, of private foundations. Before the resolution, several state prosecutors' offices did not have specific resolutions to regulate their performance in the supervision of foundations,[2] which are now governed by the new provisions.

Although the resolution brings uniformity, it is up to the prosecutor's office of each state to publish its own normative acts, according to local peculiarities. Therefore, CNMP Resolution 300 did not remove local autonomy, it only defined and standardized the competence of the Public Prosecutor's Office in the supervision of foundations.

Under the terms of the resolution, it is incumbent on each state unit of the Public Prosecutor's Office to monitor the foundations that operate in the respective state or district territory, except in some specific cases: public foundations under private law with accounts submitted to the Court of Auditors, foreign private law foundations authorized to operate in the country and which do not receive Brazilian funds of any nature, supplementary pension foundations and other foundations excluded from the oversight regime by express legislative provision.

In the exercise of vigilance, the following principles must be observed:

  • the presumption of good faith of functional managers;
  • standardization of databases and information;
  • transparency of administrative acts;
  • reduction of bureaucracy;
  • concentration and predictability of decision-making acts;
  • broad access to information, with the protection of privacy and observance of constitutional confidentiality; and
  • promotion of the economic and financial recovery of foundations.

As for the acts of oversight, the article 4 of CNMP Resolution 300/24 exhaustively lists the powers of the Prosecutor's Office, with emphasis on:

  • Request for necessary documents for the exercise of the monitoring function, especially for the analysis of accountability – without specifying limits of the requirements;
  • Judicial or extrajudicial request for intervention in the administration, removal and accountability of directors, in case of irregular management, whether due to legal or statutory violation, embezzlement or any other harmful act to foundational interests;
  • Issuance of recommendations aimed at the remediation of improprieties or improvement of services, with the establishment of a deadline for the adoption of the appropriate measures; and
  • Establishment of investigative procedures to investigate evidence of irregularities.

There is a significant emphasis on the importance of the Public Prosecutor's Office rigorously monitoring the functioning of foundations, ensuring that they are aligned with their objectives and that their acts are inspected for legality and relevance.

As for the obligation of accountability by private foundations, CNMP Resolution 300/24 determines that each prosecutor's office must establish its own criteria, as long as they guarantee the transparency and legality of the procedure adopted, without contradicting the provisions of the resolution.

In the event of the need for rectification or clarification of the accounts provided, the resolution set a deadline of 45 days for compliance, extendable only with reasoned justification.

The resolution also prohibits the reassessment of accounts already been submitted and assessed by the Public Prosecutor's Office, except in cases of accounts rejected due to lack of formal requirements or accounting inconsistencies. In these cases, the accounts may be subject to a new analysis as long as the pending issues and irregularities are resolved.

CNMP Resolution 300/24 innovated by providing for the possibility of filing an appeal, within 15 days, against decisions on the merits rendered by the state prosecutor's office, with analysis by the reviewing body of each Public Prosecutor's Office. As an example, the resolutions that protect the actions of the Public Prosecutor's Office of Minas Gerais and São Paulo, although extensive, do not stipulate an appeal procedure involving the decisions rendered by the body.

In the case of the Public Prosecutor's Office of the State of Rio de Janeiro, it was already possible to file an appeal within ten days, but only against certain types of decisions:

  • Appreciation or amendment of an act of institution, appropriation and statutes;
  • Assessment of accounts;
  • Assessment of requests for authorization or approval of administrative acts; and
  • Other final deliberations.

Therefore, CNMP Resolution 300/24 not only extended the deadline, applying the rule most favorable to the appellant,[3] but also expanded the scope of appeal.

With the scope of monitoring private foundations duly regulated by CNMP Resolution 300/24, the Public Prosecutor's Office must follow the established legal limits, and private foundations cannot question the powers that are exercised by the body under the terms of the current regulations. The next step is to monitor the application of the resolution in the daily life of private foundations and the way in which the Public Prosecutor's Office will interpret the articles of the rule.

 

[1] Article 66. The Public Prosecutor's Office of the State where they are located will watch over the foundations.

Paragraph 1 - If they operate in the Federal District or in the Territory, the Public Prosecutor's Office of the Federal District and Territories shall be responsible for the task.

Paragraph 2 - If they extend the activity to more than one State, the responsibility in each of them shall be borne by the respective Public Prosecutor's Office.

[2] Acre, Alagoas, Amazonas, Bahia, Maranhão, Mato Grosso, Pará, Rio Grande do Norte, Rondônia, Roraima, Sergipe and Tocantins.

[3] Resolution No. 300. Article 42, § 2 - If the local legislation stipulates a different period from that provided for in the caput, for the filing of the appeal referred to in this article, the provision most beneficial to the appellant shall prevail.