State interventions in the economic domain can and should be made in certain circumstances, with a constitutional provision in this regard (art.173 and 174 of CF / 88). However, there are limits that cannot be crossed. If it intervenes in the economic activity in such a way as to cause abnormal losses to a certain individual or group of individuals, the State must indemnify the injured parties to the extent of the damage it causes them.

Therefore, in any intervention, the State must weigh not only the direct costs of the activity, but also the reflexes to which it will be subject. I refer to “skeletons”. Examples of these are the well-known legal demands arising from government intervention in the air and sugar and alcohol sectors in the 1980s and 1990s. Although the situations are not identical, there is in common the fact that the State obliges private individuals to practice administered prices and tariffs, setting them, however, at unreal levels and below the production costs of the respective sectors.

The Federal Supreme Court recognized the right to compensation in these cases. In spite of this, what is happening is the rebirth of Union interventions in the economy, which, in addition to harming the free play of market forces, has caused dysfunctions in certain segments.

Some examples deserve specific considerations. The first concerns the government's intervention in Petrobras, with direct impacts on the company, its shareholders and other participants in the fuel market. The former, as a controlling shareholder, has used the freezing of fuels as a way of controlling inflation, subsidizing the price of gasoline in the domestic market. As a result, there is information that, from 2010 to 2013, the company lost almost 50% of the value, the common shares depreciated 61,2%, between 2009 and 2013, and profits have fallen significantly.

In 2012, for example, net profit decreased by 3696 compared to 2011. Between 2010 and 2013, the direct loss resulting from the import of gasoline for resale amounts to approximately RS 2,3 billion. The shareholders, demonstrating the deviation from the controller's purpose, may demand that he be responsible for the damages caused to the company. The second example refers to alcohol producers, who have suffered losses as a result of the same policy. In fact, for reasons of energy efficiency of fuels (perfect substitutes), it is only advantageous to supply the vehicle with alcohol, instead of gasoline, when the price of the vehicle is less than 70% of its price.

Therefore, as the price of gasoline is out of date, that of ethanol must accompany it. The losses of the sugar and alcohol sector, as a result of these factors, are estimated between 11 $ 29,7 and R $ 38,7 billion and must be compensated for being caused by a government act, which has set prices with the objective of controlling inflation, when it should do so in the interest of the company (Petrobras) to serve its corporate purpose.

The third example refers to the State's intervention in the electricity sector, by artificially keeping the price of electricity consumed artificially, imposing losses on distributors and concessionaires. Also affected by the persistent scarcity of hydroelectric generation, they are forced to purchase, in the short term market, more expensive energy, from thermoelectric generation. without the necessary transfer of cost to the consumer. As a result of the losses, the government announced direct compensation to the sector through a package of measures totaling approximately R $ 12 billion, resulting from direct contributions made by the National Treasury and bank financing to the Electricity Trading Chamber.

If the losses exceed the direct compensation, the companies will have the right to be compensated. It is clear that state interventions must be made only in exceptional circumstances, when primary public interests so require, and the costs must be rigorously calculated. In addition to causing dysfunctions in the market, they create present and future burdens. The latter, the skeletons.

 Hamilton Dias de Souza, tax attorney and member of the Consultative Council of the Brazilian Institute of Ethics in Competition - ETCO