October 7, 2021
Last Friday, October 1st, Statute #14210/2021 was published in the Federal Official Gazette, adding a chapter to the Federal Administrative Proceedings Statute (Statute #9,784/1999) aimed at instituting the so-called “coordinated decision” within the scope of the Federal Government.
As provided for in the statute itself, the coordinated decision consists of an interinstitutional or intersectoral instance, which acts in cooperation with the purpose of simplifying the administrative proceeding through simultaneous participation of all authorities and decision-making agents and those responsible for technical-legal instruction. In other words, it is an instance that allows for the coordination and articulation of the applicable bodies in making a joint decision in certain kinds of administrative proceedings.
According to the reasoning in the bill that originated this law, such instance is inspired by the so-called conferenza di servizi, provided for in Italian legislation on administrative proceedings and especially applied to license or authorization requests. Its purpose is to expedite federal administrative proceedings, when the decision depends on the analysis by several bodies, by simplifying the decision-making procedure and concentrating decision-making instances.
In this sense, the new procedure will allow for administrative decisions that require the participation of three or more sectors, bodies, or entities of the same Branch to be taken in a coordinated manner, provided that the following requirements are met: (i) the coordinated decision is justifiable by the relevance of the subject matter; and (ii) there is disagreement that hinders expedition of the decision-making administrative proceeding. In addition, it is also required that authorities involved in the administrative proceeding belong to the same Branch.
Once the aforementioned criteria are met, the coordinated decision may be called in federal administrative proceedings in general, except for those relating to tenders and sanctioning authorities, which were expressly prohibited by the law.
Thus, for example, this new instance is expected to be a facilitator for decision-making in administrative proceedings for the revaluation or approval of new pesticides, which currently must be analyzed by three different bodies: The Ministry of Agriculture, Livestock and Food Supply (MAPA in its acronym in Portuguese), the Brazilian FDA (ANVISA) and the Brazilian Institute of Environment and Renewable Natural Resources (IBAMA). Due to this complex inter-institutional procedure, the approval of new agrochemical products in Brazil can often take more than 5 (five) years.
Due to a presidential veto, the new chapter does not mention jurisdiction for calling a coordinated decision and verifying the legal requirements thereof. In the approved bill, these measures were to be taken by the highest authority of the body or entity most responsible for conducting the matter under examination, by their own initiative or at a third party’s request. If the appropriate authority could be identified, then it would fall onto the authority of the highest hierarchical level between the bodies and entities participating in the decision. Such provision, however, was vetoed, as the rule could generate legal uncertainty, given how indeterminate the concept provided for was.
The provision dealing with the form of calling for a coordinated decision was also vetoed. According to it, in addition to the bodies responsible for issuing or approving the act, public service providers or any of those legitimated as an interested party in the administrative proceeding could also call for a coordinated decision. The justification for the veto was the alleged interference that such provision could cause in the operational processes of said bodies.
However, the possibility of participation by those legitimated as interested party in the administrative proceeding in the coordinated decision as listeners was maintained, upon an unappealable decision of the authority responsible for calling it. Participation in this meeting will include the right to speak.
Within the coordinated decision-making instance, each participating body or entity will be responsible for drawing up a specific document on the subject matter of the decision, considering the matter pertaining to their respective competence. Possible precedents should also be addressed in this analysis, which aims to support the work and integrate the coordinated decision-making process.
If there is disagreement as to resolving the object of the coordinated decision, this must be reasonably expressed during the meetings, accompanied by the proposals for solution and changes necessary to resolve the issue.
The conclusion of the coordinated decision will be consolidated in the minutes, which will contain the following information: (i) report on the items on the agenda; (ii) synthesis of the adduced groundings and theses pertinent to the subject matter of the call; (iii) record of orientations, guidelines, solutions, or proposals for government acts related to the subject matter of the call; (iv) opinion of participants in supporting future government actions in identical or similar matters; and (v) decision of each body or entity on the matter, according to its competence.
Such minutes will then be published in the Federal Official Gazette containing, in addition to the aforementioned records, the identifying data of the coordinated decision and the body and place in which the minutes are found in their entirety, for the information of interested parties.
As can be seen, there are certain aspects necessary to implement the coordinated decision which remain to be regulated. However, this is undeniably an important instrument for efficiency, celerity, and transparency of the decision-making process of the Federal Government, especially in complex administrative processes, of relevant matters involving different bodies, such as processes on environmental revaluation.
Our attorneys professionals are available for any further clarification on the matter.