On November 26, the plenary session of the Federal Supreme Court (STF) closed the judgment of Extraordinary Appeal 678.360 (RE 678.360), with general repercussion (Topic 558), in which the constitutionality of paragraphs 9 and 10 of article 100 of the Federal Constitution (FC), included by Constitutional Amendment 62/09 (EC 62/09), was discussed.
These provisions established that the tax entity could unilaterally offset credits registered in writs with debts existing in the Public Treasury, whether or not registered as overdue debt.
In RE 678.360, the Federal Government questioned the decision of the Federal Regional Court of the 4th Region (TRF-4) which, in favor of an industry, ruled out the application of paragraphs 9 and 10 of article 100 of the Federal Constitution. The Plenary of the STF decided, in a unanimous vote, for the unconstitutionality of these provisions.
The thesis of general repercussion established was: "The offsetting of the debts of the Public Treasury registered in writs of payment, provided for in paragraphs 9 and 10 of article 100 of the Federal Constitution included by EC No. 62/09, violates the constitutional text frontally, as it impedes the effectiveness of the jurisdiction (CRFB/88, article 5, XXXV), disrespects the material res judicata (CRFB/88, article 5, XXXVI), violates the Separation of Powers (CRFB/88, article 2) and offends the equality between the Public and Private Powers (CRFB/88, article 5, caput)".
According to the rapporteur of the case, Justice Luiz Fux, although the provisions of EC 62/09 were intended to prevent tax debtors from receiving their credits before paying their obligations, as well as to reduce the cost of filing tax foreclosures, the unilateral offsetting of debts registered in court orders gives a procedural advantage to the Public Administration, as a debtor. And this cannot be endorsed by the Judiciary.
The rapporteur understood that unilateral compensation violates constitutional principles, such as the effectiveness of jurisdiction, material res judicata, separation of powers and equality between public and private power.
The decision, however, is not new, as the Court had already overturned the validity of the unilateral offsetting of writs in the judgment of Direct Unconstitutionality Actions (ADIs) 4,357, 4,425 and 7,064.
By imposing clear limits on the performance of the Public Treasury, the STF's decision, with binding effects, corrects illegalities and stimulates the secondary credit market. In many cases, for example, the processing of writs issued was prevented due to the existence of debts to the detriment of the creditors. Not infrequently, the offsetting of credits that were not even registered in overdue debt was carried out. This is an even more evident unconstitutionality, since, in theory, the Public Administration exercises a control of the legality of the credit at the time of registration as an overdue debt.
In addition, the decision obliges public entities to adopt more responsible budgetary policies, prioritizing the payment of writs in accordance with court decisions, without resorting to arbitrary and unilateral practices. The measure also pressures public entities to adapt to constitutional requirements and promotes greater transparency in fiscal management, in addition to bringing greater legal certainty to the growing market for the sale of writs.
The decision prohibits unilateral offsetting with binding effects. It does not affect, however, the compensation provided for in Decree 11,249/22, which may continue to be used by those who are debtors and, at the same time, creditors of the Union.
