A classificação jurídica das denominadas participações governamentais na indústria do petróleo e gás

Abstract

In Brazil, it is noted that the Federal Constitution of 1988 while focusing the assets of the Federal Government has listed among them the mineral resources, including those of the subsoil, and also determined that the survey, mining, refining, importation and exportation of crude oil, natural gas and byproducts constitute a monopoly of the Federal Government, which may exercise it through public or private companies. In article 20, § 1, the Supreme Charter determines that the Federal Government should assign to the States, Municipalities, Federal District and organs of the direct Federal Administration the financial resources to be obtained with the exploitation and production of crude oil and gas, in the form of compensation or participation in the result of the exploitation. It sets no provisions on the juridical forms that could be adopted by the Federal Government to obtain such resources. It only determined the form of assigning them. The infraconstitutional legislator, upon the establishment of the so-called governmental participations, considered the mandatoriness of the concessionaire/contractor to pay to the treasury of the Federal Government, as a result of the exploitation and production of crude oil and gas, the following amounts: royalties, signature bonus, special participation fee, payment for occupation or retention of the area. To the owner of the land area, when the exploitation block is on land, a participation is due on the value of the production. The aforementioned governmental participations are variable, depending on the contract mode, namely: concession, production sharing contract or onerous transfer. As society was only interested in discussing to whom would be entitled the economic results originated from the commented activity, there was no definition or juridical classification of the aforementioned governmental participations. Treatment given to the question both by the legislator and by the judge, unmindful of the juridical classification of the institutes considered, has given cause to several astonishments, to the point of one not knowing what really pays the exploiter for the exploitation and production of petroleum and gas. In this paper, we have defined and classified the so-called governmental participations, concluding that: the so-called royalties, the special participation fee and the payment for the occupation or retention of the area are classified as taxes while the signature bonus is classified as royalties. The participation due to the owner of the land is classified as participation on the result of the production. Compensation for and participation in the result of the exploitation, in the way they are expressed in the Greater Charter, have not been established by the infraconstitutional legislator