Recent normative and jurisprudential evolution in Brazil has broadened the scope of active legitimacy for filing administrative improbity lawsuits and civil non-prosecution agreements.This advancement is notably cemented following the amendments introduced by Law No. 14,230/2021 and the rulings by the Supreme Federal Court in ADIs No. 7,042 and 7,043, which acknowledged the concurrent role of the Public Prosecutor’s Office and public advocacy in these matters.
It is crucial to highlight that, although Law No. 14,230/2021 initially restricted active legitimacy in administrative improbity actions, the Supreme Federal Court, upon examining the matter, reinstated the breadth of this legitimacy. This allows not only the Public Prosecutor’s Office but also interested legal entities to actively engage in proposing actions and concluding civil non-prosecution agreements. Such a decision marks a significant milestone in the pursuit of judicial effectiveness and the adaptation of legal solutions to the needs of the public interest.
The civil non-prosecution agreement emerges as a vital instrument in this context, offering an alternative to prolonged litigation. It enables the adoption of integrity measures and good administrative practices by legal entities, aiming at public interest and administrative efficiency, as stipulated by article 17-B, § 6, of Law No. 8,429/92, as amended by Law No. 14,230/2021.
The regulation of these agreements, exemplified by Normative Ordinance AGU No. 18/2016, emphasizes the importance of advantages for the public interest in the swift resolution of cases, highlighting the admissibility of transactions in matters involving unavailable rights, provided they aim at satisfying the public interest.
Furthermore, the practice of negotiation acts by the Public Administration, previously viewed with reservations, is now justified by the need to adapt public law to the complex realities of contemporary public management, as demonstrated by Ordinances 487 and 488 of 2016 of the AGU published during the tenure of the former Attorney General of the Union, Fábio Medina Osório.
Thus, the legitimization of interested legal entities in proposing civil non-prosecution agreements aligns with the principles of efficiency, morality, and public interest. It provides a conflict resolution tool that reconciles the rigidity of administrative sanction law with the flexibility necessary for modern public administration.
This normative and jurisprudential evolution reflects a broader understanding of public interest management, recognizing the significance of alternative conflict resolution mechanisms. Far from implying a renunciation of rights or the granting of undue benefits, they represent a commitment to the effectiveness of justice and the promotion of integrity in public administration. Consequently, it paves the way for a more strategic legal action aligned with the current challenges of public governance, reinforcing the importance of collaboration between the Public Prosecutor’s Office, public advocacy, and interested entities in policy-making and protecting public assets.
Authors: Fábio Medina Osório and Pedro Ferreira Leite