Constitutional Amendment No. 94, of December 15, 2016, made substantial legislative changes to the precatórios system. Among them, the following stand out:
- The declaration of unconstitutionality of the special regime that stipulated a period of 15 years for the payment of precatórios previously established by Constitutional Amendment No. 62/2009.
- The institution of a new special regime, in which the precatórios already issued and pending payment by March 25, 2015 and those that mature by December 31, 2020 must be paid by December 31, 2020.
- The observance of the period of 18 months for payment of precatórios provided for in Article 100, Paragraph 5, of the Federal Constitution, after the end of the new special regime.
- The permission to obtain financing to pay the portion of precatórios that, in a given fiscal year, exceeds the average percentage of the commitment of net current revenue in the immediate five years prior.
- The authorization to use up to 75% of the judicial and administrative deposits made in judicial and administrative proceedings in which the Government appears as a party for the payment of precatórios (the constitutionality of this rule is currently being debated by the Attorney General of the Republic through Direct Unconstitutionality Action - ADI - No. 5.679, and an injunction relief was partially granted determining the establishment of a guarantor fund, ordering the exclusive destination of such amounts for the payment of precatórios issued up to March 25, 2015 and prescribing that the amounts be directly transferred to the accounts specifically constituted for the payment of precatórios without passing through the accounts managed by the Government).
The Federal Supreme Court (STF) has also issued, in recent months, decisions that are equally relevant regarding precatórios.
In the decision on Extraordinary Appeal (RE) No. 579.431, the STF determined that it is possible the provisional enforcement of a specific performance ordered against the Public Treasury, since the regime of precatórios would only apply to payment obligations. For the purposes of general repercussion theory, the STF approved the following wording: “The provisional enforcement of a specific performance ordered against the Public Treasury does not attract the constitutional regime of precatórios”.
In the decisions on ADIs No. 4,357 and No. 4,425, the STF determined that the Reference Interest Rate (TR) be maintained as an index for monetary restatement of the debts arising from precatórios until March 25, 2015, and that, from that date, the Broad Consumer Price Index (IPCA-E) rate will be applied. The exception is debts arising from tax precatórios, which must be monetarily restated using the SELIC interest rate.
In the decision on Extraordinary Appeal (RE) No. 579.431, the STF also decided, having recognized the general repercussion of the matter, which is an element of admissibility, that interest on arrears applies for the period between the preparation of the calculations and the issuance of the precatório or the small value petition (RPV), which differs from the precatório because it has a payment term of only 30 days for debts in the amount of up to 60 minimum wages.
Initially, upon suggesting the approval of the general repercussion theory, the STF intended to acknowledge the application of interest on arrears for the period in question only for RPVs. However, the understanding was altered, and the general repercussion theory was readjusted to also cover precatórios.
The decision handed down by the STF is based on the assumption that the calculation and issuance of the precatório does not constitute payment and does not terminate the liability of the debtor, rather it is, in fact, merely a liquidation of the debt.
According to the STF, Binding Statement No. 17, which provides for the non-application of interest on arrears for the period of 18 months provided for in Article 100, Paragraph 5 of the Federal Constitution, was found not to apply in this case, which refers to the application of interest on arrears for the period between the preparation of the calculations and the issuance of the precatório, which precedes the period established in the Federal Constitution.
On top of that, the STF held that Binding Statement No. 17 was not superseded by Constitutional Amendment No. 62/2009. Furthermore, a ruling on Proposed Binding Statement No. 111, which requires cancellation of Binding Statement No. 17, is still pending, which provides that "after the enactment of Constitutional Amendment No. 62/2009, interest on arrears and monetary restatement on the debts of the government shall apply starting with their issuance until their actual payment." This proposal had been suspended until the ruling on RE No. 579.431, which occurred recently.
The tendency, therefore, is the consolidation, by the STF, of the jurisprudential understanding that there will be interest on arrears starting with the preparation of the calculations until actual payment, in addition to reaffirmation of the rule contained in Article 100, Paragraph 5, of the Federal Constitution to the effect that precatórios should be paid within 18 months.
It remains to be seen what impact these legislative changes and stricter judicial decisions will have in a scenario of economic crisis and serious public indebtedness, which principally affects states and municipalities.