STF vetoes administrative requisition of goods between federative entities

The Federal Supreme Court upheld the direct action of unconstitutionality (ADI) and reaffirmed the understanding that the administrative requisition of goods or services by one federative unit to another constitutes an offense against the federative principle.

Unanimously, the court excluded from article 15, item XIII, of the Organic Law of the Unified Health System (SUS) an interpretation that allows the administrative requisition of public goods and services owned by other federative entities.

In the action, the Democrats (DEM) party argued that the device was the basis for the intervention decreed by the federal government in hospitals in Rio de Janeiro in 2005. According to the legend, the law leaves open the interpretation of which legal entities are subject to the request, in conflict with the Constitution, which only allows, in case of imminent danger, the requisition of private property, and not public, as happened in the case of the intervention in Rio de Janeiro.

horizontality
In the ruling vote of the trial, Minister Alexandre de Moraes explained that the contested device deals with the possibility of requisition in the context of the attributions of the SUS and, therefore, of common competence between the federative entities.

The hypothesis, according to him, presupposes the existence of a situation of collective, urgent and transitory need, which will affect all levels of federative entities, requiring horizontal coordination between them.

In this sense, for the minister, it is not possible to extend the hypothesis of article 5, item XXV, of the Constitution of the Republic, which provides for the administrative requisition of private goods in the event of imminent public danger, to the relations between federative entities, which must be characterized by horizontality and cooperation.

In his view, interference by the Union on goods and services of subnational entities was admitted by the constituent only in the exceptional cases of federal intervention and a state of siege, and the interpretation that allows it in a scenario of institutional normality, even in the extraordinary context of a pandemic of Covid-19.

Alexandre recalled the recent judgment of the Original Civil Action (ACO) 3,463, in which the Plenary endorsed a precautionary measure to prevent the Union from requesting supplies for the manufacture of vaccine against the coronavirus acquired by the state of São Paulo, under penalty of violating state autonomy. .

For the minister, the possibility of requisitioning by the Union of public goods allocated to the performance of the competences of the various federative entities subverts the very constitutional distribution of administrative competences, to the detriment of the autonomy and balance of the federative pact, being, therefore, flagrantly unconstitutional.

Rapporteur of the case, Minister Dias Toffoli had voted in a previous session for the dismissal of the request, but he readjusted his vote to follow the understanding of Alexandre de Moraes, in line with the most recent jurisprudence of the court. With information from the advisory of the STF.

ADI 3,454