A distribuição dos royalties de petróleo e gás natural análise da ADI 4.917

Abstract

Government participation in the exploitation of oil and natural gas, with emphasis on royalties and special participation, has reached an important role in Brazilian social and economic policy over the years, especially since 1988, with the constitutional provision of a legal and of the beneficiaries of the participations. The explosion of oil funds, especially with the exploitation in the pre-salt layer, placed producing and confronting states and municipalities, under the terms of the law, and the others on opposite sides in the dispute for these rents. The result of this dispute is the approval of Law No. 12,734/2012, which establishes the sharing of interests among all federal entities. The State of Rio de Janeiro filed Direct Unconstitutionality Action No. 4,917, arguing that the approved law violates the Brazilian federative pact, by disregarding the compensatory nature of royalties and by violating the original pact of the constituent, which attributed the participation to producer states as compensation due to the collection of ICMS on oil and gas at destination. The objective of this research is to evaluate, in the light of the federative pact, the constitutionality of the rules established by Law No. 12,734/2012. To achieve this, a doctrinal and jurisprudential study on federalism, its origins in the United States, the evolution and the reality of the Brazilian federal state, in the search for the determination of its practical outlines, was prepared. It was also necessary to study the legal-constitutional nature of government participation in oil exploration based on Brazilian Federal Supreme Court doctrine and jurisprudence. Additionally, arguments against and in favor of the distribution of government stakes among all federal entities were analyzed, as established by Law No. 12,734/2012. This work consists of a legal-dogmatic research, using deductive reasoning. The research is elaborated from the exploratory-comparative methodology, through the bibliographic, legislative and jurisprudential survey, associated with the case study of the Direct Unconstitutionality Action 4,917. The survey showed that royalties derived from oil and gas exploration are not merely compensatory in nature, as understood by Rio de Janeiro, and that the distribution of holdings among all entities does not violate the system according to which the provisions of § 1, art. 20, of the Constitution, proposes to offset the ICMS tax on oil and natural gas at destination, which is dealt with in al. ‘b’, inc. X, § 2, of art. 155 of the Federal Constitution. Finally, it is suggested that the division of royalties referred to in inc. II, art. 48, and inc. II, art. 49, of Law No. 9,478/1997, among all federal entities is unconstitutional, in view of its compensatory nature; on the other hand, the division of the special participation referred to in Law No. 9,478/1997 and the royalties referred to in art. 42 of Law No. 12,351/2010, in view of its destination for the fulfillment of the objectives of the Republic, under the terms of inc. II and III, art. 3rd, of the Citizen Constitution.