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By 6 votes to 4, the Federal Supreme Court (STF) considered the creation of subsidiaries by state companies in a lawsuit this Thursday (1st) to later sell these assets. With this, Petrobras is free to go ahead with the divestment plan of some refineries without the need for authorization from Congress. The state company plans to sell eight refineries, more than half of its refining park, which has 13 units.
The matter was debated in the Supreme Court by a provocation of the mayors, Rodrigo Maia (DEM-RJ), and the Senate, Davi Alcolumbre (DEM-AP). In July, they asked the STF to grant a precautionary measure to prevent the sale of these refineries as planned by the state company. The tables of the two houses complained that, in order to dispose of these assets, Petrobras evaded a judicial decision taken last year. At that time, the Court prohibited the government from selling a “parent company” without legislative authorization and without bidding, but authorized this process in the case of subsidiaries.
The congressmen argued that the state company manipulated the STF’s determination by converting the refineries into subsidiaries and then selling them. For this reason, they asked the Court to prohibit such practice. But the thesis was defeated in the plenary session of the Court.
Ministers Luis Roberto Barroso, Alexandre de Moraes, Cármen Lúcia, Dias Toffoli, Gilmar Mendes and Luiz Fux (President of the Court) voted in favor of Petrobras. The votes obtained were from the speaker Edson Fachin, Rosa Weber, Ricardo Lewandowski and Marco Aurélio Mello. Minister Celso de Mello was not present.
Fachin opened the lawsuit by voting in favor of the presentation of the Petrobras refinery sale plan to be reviewed by Congress. For him, the creation of subsidiaries in the case of refineries does not serve to fulfill the social objective of the state company, but only for the sale of assets. “I understand that the free creation of subsidiaries is not possible with the consequent transfer of assets and subsequent direct sale in the market,” he said. “The action depends on the necessary review by the National Congress and the bidding process,” he added.
But the rapporteur’s thesis was challenged in the next vote by Alexandre de Moraes, who said that he does not see any deviation of purpose in the creation of subsidiaries for the sale of refining units. “Petrobras does not intend to lose value on the stock market (with the sale), nor lose control of the shares, but it intends to optimize its performance and ensure greater profitability for the company,” said the minister, who opened the divergence.
“It is not for slicing, but it is an elaborate plan that aims to guarantee greater investments, prioritize certain areas and guarantee greater efficiency and effectiveness. The divestment process aims to ensure a better reallocation of state funds,” he said.
Luis Roberto Barroso joined Moraes’ position and argued that he had not seen any fraud in the movement of the oil company with the sale of the units through subsidiaries. In very short votes, Ministers Dias Toffoli and Cármen Lúcia followed the divergent vote, as did Gilmar Mendes and the President of the Supreme Court, Luiz Fux.
Petrobras plans to sell up to $ 30 billion in assets
Petrobras began its divestment plan in 2016, under the direction of Pedro Parente (Temer government), based on State Laws, and intensified the program under the direction of Roberto Castello Branco (Bolsonaro government), following the understanding of the Supreme Court.
The objective is to sell assets and subsidiaries that are not considered strategic for the state’s business in order to reduce its indebtedness, in part due to the “Petrolão” scandal, investments without return and price controls in previous administrations. The company’s gross debt in the second quarter of 2020 was $ 91 billion, consuming about 26% of state cash for interest payments and debt refinancing.
The goal of the state-owned company, according to its strategic plan, is to sell between $ 20 billion and $ 30 billion in assets by 2024, including eight refineries: Rnest (PE); Rlam (BA); Repar (PR); Refap (RS); Regap (MG); Reman (AM); Lubnor (CE); and Six (PR).
The company wants to focus the operation only on the refining and commercialization of petroleum products that are located in the Southeast (SP and RJ). The company would also like to abandon the areas of gas, biodiesel, fertilizers and LPG. In the case of gas, the exit is part of an agreement with the Economic Administration Council (Cade) to deconcentrate the market.
The eight refinery sales processes have already been initiated by the state company. The most advanced are Repar and Rlam. In the case of Repar, the process is already in the binding phase, with the participation of Ultrapar, the consortium led by Raízen and China Petroleum & Chemical Corporation (Sinopec).
Given that Petrobras received two proposals from the refinery with close values, the state company will carry out a new round of receiving binding proposals. Rlam is in the teaser phase, in which the company reveals to potential stakeholders its intention to dispose of the asset.
The process of selling a Petrobras refinery comprises a number of steps: teaser, start of the non-binding phase, start of the binding phase, conclusion of an exclusive agreement (where applicable), “signing” and “closing”.
