by Giuseppe Giamundo Neto and Fernanda Leoni

The judgment of Extraordinary Appeal No. 636,899 by the Federal Supreme Court, which established Theme 899 with general repercussion, defining that claims by the Courts of Accounts are subject to limitation periods, was certainly a watershed on the subject, requiring the Courts of Accounts to rethink the way they conducted oversight proceedings under their jurisdiction.

Even with some initial resistance, partly caused by the Supreme Court judgment’s own lack of clarity regarding the scope of the decision — whether the limitation period referred to applied only to the enforcement of decisions or also to the oversight action itself — the Courts of Accounts began a movement to regulate the subject internally.

An important contribution in this regard came from the work of the bodies representing these courts — Atricon (Association of Members of the Courts of Accounts of Brazil), the Rui Barbosa Institute, the CNPTC (National Council of Presidents of the Courts of Accounts) and Abracom (Brazilian Association of Municipal Courts of Accounts) — which jointly issued Recommendation Note No. 02/2023 [1], recommending that the courts recognize and adopt limitation periods for punitive and reimbursement claims.

The most prominent regulation certainly came from the Federal Court of Accounts, given its role as a reference for other oversight bodies. Resolution No. 344/2022, published on 10/11/2022, sets out in detail the five-year period for exercising punitive and reimbursement claims, indicating their starting points, possible interruptions and suspensions, and other rules for internal application.

The Courts of Accounts of Ceará [2], Maranhão [3], Pará [4], Paraíba [5], the Federal District [6], the Municipalities of Goiás [7] and the Municipality of São Paulo [8] also chose to regulate the matter through their own internal rules.

Among the courts that came to expressly provide for limitation periods, only for the Court of Accounts of Amazonas was the change made directly in the text of the State Constitution, whose Amendment No. 132/2022, by adding article 40, §4, came to provide for limitation of punitive and reimbursement claims in audits conducted by the court.

The Courts of Accounts of Piauí [9], Santa Catarina [10] and the municipalities of Pará [11] amended their own Organic Laws, also providing broadly for limitation periods. In the case of the latter (TCM-PA), amendments have also been made to its internal rules to accommodate the new provisions of the Organic Law.

In the case of the Court of Accounts of Mato Grosso do Sul, the amendments providing for limitation periods were made directly to its Organic Law [12]. The Court of Accounts of Mato Grosso, in turn, has an entire Code of External Oversight Procedure, which was recently amended to provide for limitation periods [13].

It is important to note that many courts already had specific regulations before the Federal Supreme Court precedent, but only regarding the limitation of punitive claims. This is the case of the Courts of Accounts of Alagoas [14], Espírito Santo [15], Goiás [16], Minas Gerais [17], Pernambuco [18], Rio Grande do Norte [19], Roraima [20], Sergipe [21] and the municipalities of Bahia [22].

A few courts still regulate the subject only through binding decisions. This is the case of the Court of Accounts of Bahia (Summary Statement 17), Paraná (Pre-judgment No. 26), Rondônia (Normative Decision 01/2018/TCE-RO) and the Municipality of Rio de Janeiro (Statements 166, 362, 382 and 410). With the exception of the latter, all the decisions mentioned cover only the limitation of punitive claims.

Finally, it is also worth noting that some courts have not regulated the matter, although some of them occasionally apply the concept in their case law, as is the case of the Court of Accounts of Acre, which uses TCU Resolution No. 344/2022 as a reference. The Courts of Accounts of Amapá, Rio de Janeiro, Rio Grande do Sul and São Paulo have not yet issued rules on the matter.

The overall picture is therefore positive and shows an important effort by the Courts of Accounts to preserve legal certainty. With the exception of five courts that have not regulated the subject, all the others have some provision on the matter, whether prior to the Supreme Court precedent (nine courts), in the form of decisions with normative force or equivalent (four courts), or through amendments to their legislation (14 courts).

[1] Available at https://atricon.org.br/wp-content/uploads/2023/04/Nota-Recomendatoria-Conjunta-n-022023.pdf. Accessed on 08/17/2023.

[2] Administrative Resolution No. 03/2023.

[3] Resolution 383/2023.

[4] Resolution 19503/2023.

[5] TC Normative Resolution No. 02/2023.

[6] Normative Decision 05/2022.

[7] Normative Instruction No. 07/2023.

[8] TCMSP Resolution No. 10/2023.

[9] Article 166-A of the TCE-PI Organic Law, added by Law No. 7,896/2022.

[10] Article 83-A et seq. of the TCE-SC Organic Law, added by Complementary Law No. 819/2023.

[11] Article 78-A of the TCM-PA Organic Law, added by Complementary Law No. 156/2022.

[12] Article 187-A et seq. of the TCE-MS Internal Rules (provisions added by TCE-MS Resolution No. 188/2023).

[13] Article 83 et seq. of Complementary Law 752/2022 (“Code of External Oversight Procedure of the State of Mato Grosso”).

[14] Article 117 of the TCE-AL Organic Law, supplemented by Normative Resolution No. 3/2019 and Summary 01.

[15] Article 71 of the TCE-ES Organic Law and article 373 et seq. of the TCE-ES Internal Rules.

[16] Article 107-A of the TCE-GO Organic Law.

[17] Articles 110-A to 110-G of the TCE-MG Organic Law, supplemented by arts. 182-A to 182-H of its Internal Rules.

[18] Article 73, §6, of the TCE-PE Organic Law.

[19] Article 111 et seq. of the TCE-RN Organic Law, supplemented by article 327 et seq. of its Internal Rules.

[20] Article 61 of the TCE-RR Organic Law, supplemented by article 212 of its Internal Rules and by Ordinance 1189/2020.

[21] Article 68 et seq. of the TCE-SE Organic Law.

[22] Article 181 et seq. of the TCM-BA Internal Rules.

 

Article originally published in Consultor Jurídico (in Portuguese), on September 20, 2023.