The granting of precautionary measures, in particular those involving the freeze of assets, must comply with the general legal requirements of risk demonstration to the useful outcome of the process and/or danger of irreparable damage. The jurisdiction of the Court of Auditors of the Union (TCU) in relation to that question is based on Article 44( 2).[1] of the Organic Law of the TCU (Law 8,443/92), on Article 274[2] of the Rules of Procedure of the TCU and on the subsidiary application of other legal provisions, such as the Law of Administrative Improbity[3] (Law 8,429/92). However, this type of order is the subject of criticism and legal disputes.
On one hand, it is understood that the powers of the TCU are restricted to Articles 71 and 72 of the Federal Constitution and, consequently, would not include precautionary and enforceable measures, which would be restricted to the Judiciary. In fact, both the Organic Law of the TCU and its bylaws would extrapolate the powers delegated to the court by the Federal Constitution.
On the other hand, as decided in the leading case Security Warrant 24,510 – MS 24,510, the TCU has this competence based on the theory of implicit powers.[4] According to the decision, TCU’s orders would only be enforceable against third parties if the court has sufficient powers to execute them, and not always depend on the judiciary.
On October 13, 2022, the Supreme Court ruled the MS 35,506 and consolidated its understanding[5] that the courts of accounts have the power to adopt grant precautionary measures, "as long as they do not go outside their constitutional duties". In this case, the TCU ordered the freeze, for one year, of R$ 653 million of the Industrial Plants Project Ltda.’s assets (PPI), and confirmed its previous decision to pierce the PPI’s corporate veil – all in the administrative scope.
According to Minister Lewandowski, whose vote was the winner, "the public origin of the resources involved justifies that the injunction reaches individuals and not only public agencies or agents.". Regarding the disregard of the corporate entity of PPI, the Minister defended its possibility as a way to suppress abuses and frauds by the use and manipulation of the corporate entity.
Aware of the questions about the limits of its powers, the TCU has for years granted constriction orders of investigated assets. In many cases, the decisions are based on the generic risk to the useful outcome of the process considering the possibility of assets dissipation. Those decisions did not include what was the true evidence of eventual assets dissipation, especially in cases involving accusations of administrative misconduct and embezzlement of money.
Nevertheless, the consequences of the freeze orders go beyond the guarantee of payment of any conviction in the proceeding. An order preventing the disposal of assets by the respondent directly affects the companies’ capital and individuals’ finances, resulting on undesirable and critical financial situations.
These measures contradict the principle of the preservation of the company, surpassing the object of demand and affecting, in a macroeconomic analysis, the guarantee of jobs, income generation, maintenance of balanced and stable finances. The decision given in a process, administrative or judicial, may result in problems to the society as one.
Considering the above-mentioned consequences, the freeze orders granted by the TCU must be reasonably founded, demonstrating in the specific case the alleged irreparable damage or the risk to the useful outcome of the proceeding. In other words, the freezing injunction must be based not only on legal aspects, but on evidences of the real risk of not granting it.
[1] Art. 44. At the beginning or in the course of any investigation, the Court, in a letter or at the request of the Public Prosecutor's Office, will determine, in a precautionary, the temporary removal of the person responsible, if there are sufficient indications that, continuing in the performance of his duties, may delay or hinder the performance of audit or inspection, cause further damage to the Treasury or make his compensation unfeasible. [...] § 2 - In the same circumstances as the caput of this article and the preceding paragraph, the Court may, without prejudice to the measures provided for in the arts. 60 and 61 of this Law, decree, for a period of not more than one year, the unavailability of assets of the responsible person, as many as considered enough to guarantee the compensation of the damage in investigation.
[2] Art. 274. In the same circumstances as the previous article, the Plenary may, without prejudice to the measures provided for in the arts. 270 and 275, decree, for a period of not more than one year, the unavailability of assets of the responsible person, as many as considered enough to guarantee the reimbursement of the damages in investigation, pursuant to § 2 of Article 44 of Law 8.443, of 1992.
[3] Art. 16. [...] § 4 - The unavailability of assets may be decreed without the prior hearing of the defendant, whenever the prior adversarial may prove to frustrate the effectiveness of the measure or there are other circumstances that recommend the injunction, and the urgency cannot be presumed.
[4] As Luciano Ferraz explains, "The theory of implicit powers was constructed by the United States Supreme Court in the famous case McCulloch v. Maryland (1819), and is based on the idea that the granting of express jurisdiction to a particular State body matters in the implicit acceptance, also to it, of the means proper to the full achievement of the purposes prescribed by the constituent. It is true that this theory was granted in relation to the legislative powers (implicit) of the Union before the states, based on the federal constitutional regime of the USA, but the fact is that it has already been widely used by the Supreme Court to justify hidden powers of organs such as the Public Prosecutor's Office, the National Council of Justice and the Court of Auditors". (available on Legal Advisor website).
[5] In the same direction: Security Suspension 5.455-RN and Security Warrant 34.446-DF.
