Author: Leandro Marques *

Source: Quaero, 26/02/2009

Adulteration of fuels is always a controversial topic. The decisions of the Judiciary of the State of São Paulo in favor of merchants, who had their state registration canceled by the sale of fuel “baptized”, expand the discussions on the subject. The São Paulo State Finance Department tries to revoke in court 110 injunctions granted to posts that operate even after being caught with the sale of irregular products. The posts say they are not having the broad right of defense. However, this thesis is not the correct one. Federal Law No. 9.478 / 97, which created the National Petroleum Agency (ANP), established, within its powers, in its article 8, item I, the inspection of economic activities arising from the oil industry, acting in defense consumers about the price, quality and offer of products. In turn, Federal Law No. 9.847 / 99 specifically provided for the inspection of the sale of fuels, instituting procedures and sanctions, also allowing for the realization of agreements by the Agency with agencies of the direct public administration of States and Municipalities.

The State of São Paulo, through State Law No. 11.929 / 2005, instituted as a penalty the revocation of the state register of the establishment caught selling adulterated fuels or outside the standards established by the ANP.

And State Law No. 12.675 / 2007, instituted with the aim of preserving the rights of consumers, establishes administrative sanctions and hypotheses of application, as well as the inspection and action procedures of the offending agent. It is important to highlight that this law determines the collection of three samples of the analyzed fuel, the first being sent for analysis by the ANP and the entity it has an agreement with; the second handed over to the fined establishment itself, with the objective of allowing ample defense and the adversary, and the third to Procon, for conservation and eventual use as a counterproof.

If preliminary examinations carried out at the time of material collection already demonstrate the existence of adulteration, the tax agent must immediately interdict the place, sealing it, in addition to determining the seizure of the product, for an initial period of 30 days, extendable if required. interested party to carry out a new test.

The assessed establishment will be notified and may present a prior defense against the administrative act in five days.

The legislation that regulates the issue, both at the federal and state levels, grants the assessed institution all the conditions and means to exercise its defense, including granting it a sample of the collected material, thus respecting due process.

The establishments have resorted to the Judiciary, seeking injunctions to restore their activities. To this end, among other particular arguments to each specific case, they claim defense restraint and disrespect to the adversary, especially because they are unable to follow on the spot the realization of the evidence of the material collected.

According to the bodies that carry out the tests, it is not allowed to follow up the technicians responsible indicated by the establishments due to the particularities of the examination, in order to prevent potential offenders from discovering new means of circumventing or circumventing the detection of tampering. Thus, the legislation only admits the presence of those interested in collecting and sealing the material, as well as opening the container.

In fact, solvents, products that are normally used in adulterating fuels, are produced with a kind of marker, that is, a chemical component added precisely in order to allow their identification in fuels. If the offending establishments have access to the aforementioned component or formula used by the ANP, an opportunity will be opening up to discover ways that make it impossible for the regulatory bodies to identify the occurrence of illegal acts not only in the consumer sphere, but also criminal and tax.

It must be borne in mind, and it is up to the Judiciary to pacify such an understanding, that the exercise of wide-ranging defense and adversary cannot overlap without justification over other equally important and primordial principles. The right to defense has its limits instituted by due legal process, which establishes the means, procedures and mechanisms in which the assessment and evidence are carried out.

It is not possible to foresee, or rather to allow, the right to defense to become a means by which the frauds and illicit acts that our legislation intends to curb are improved.

It is noteworthy that the assessed establishments are granted a sample of the collected material, allowing themselves to perform the examination with the technical body associated with the ANP, but logically without following the examination.

Adulteration of fuels is an illegal act that harms society in several ways, violating consumer rights, the economic order and even causing environmental damage, due to its use outside environmental parameters. Thus, it appears that the collective interest, that is, the supremacy of the public interest, cannot be overcome by the particular interest of the trader.

Obviously, the adoption of new stricter criteria in the collection, transportation and opening of the collected material may assist the Judiciary in the analysis of actions and requests for injunctions. However, it should be noted that the current criteria and the legislation that regulates the entire administrative process, yes, allow traders to fully exercise their defense.

* Leandro Marques is a lawyer in Public Law at Dabul & Reis Lobo Sociedade de Advogados - leandro@dabulreislobo.com.br