Regulates the provisions of Art. 20 through Art. 30 of Decree-Law No. 4.657, of September 4, 1942, which establishes the Introduction Law to the norms of Brazilian Law.
THE PRESIDENT OF THE REPUBLIC, in the exercise of the powers vested in him by Art. 84, caput, items IV and VI, sub-item "a", of the Constitution, and in view of the provisions of Art. 20 through Art. 30 of Decree-Law No. 4.657, of September 4, 1942,
DECREES:
CHAPTER I
PRELIMINARY PROVISIONS
Subject Matter
Art. 1º This Decree regulates the provisions of Art. 20 through Art. 30 of Decree-Law No. 4.657, of September 4, 1942, which establishes the Introduction Law to the norms of Brazilian Law.
CHAPTER II — DECISIONS
Statement of Reasons and Decision
Art. 2º A decision shall state its reasons by setting out the context of the facts, when applicable, and by indicating the grounds on the merits and the legal grounds.
§ 1º The statement of reasons for the decision shall contain its grounds and shall present, in an argumentative manner, the consistency between the norms and the facts on which it was based.
§ 2º The statement of reasons shall indicate the norms, the legal interpretation, the case law, or the legal scholarship on which it was based.
§ 3º The statement of reasons may consist of a declaration of agreement with the content of technical notes, opinions, information, decisions, or proposals that preceded the decision.
Statement of Reasons and Decision Based on Abstract Legal Values
Art. 3º A decision based exclusively on abstract legal values shall comply with the provisions of Art. 2º and shall consider the practical consequences of the decision.
§ 1º For purposes of this Decree, abstract legal values are those provided for in legal norms with a high degree of indeterminacy and abstraction.
§ 2º In indicating the practical consequences of the decision, the decision-maker shall present only those practical consequences that, in the diligent exercise of his or her duties, he or she is able to foresee in light of the facts and of the grounds on the merits and the legal grounds.
§ 3º The statement of reasons shall demonstrate the necessity and suitability of the measure imposed, including by considering the possible alternatives and observing the criteria of suitability, proportionality, and reasonableness.
Statement of Reasons and Decision in Invalidation
Art. 4º A decision that decrees the invalidation of administrative acts, contracts, agreements, proceedings, or norms shall comply with the provisions of Art. 2º and shall expressly indicate its legal and administrative consequences.
§ 1º The consideration of legal and administrative consequences is limited to the facts and to the grounds on the merits and the legal grounds that are expected of the decision-maker in the diligent exercise of his or her duties.
§ 2º The statement of reasons shall demonstrate the necessity and suitability of the measure imposed, considering the possible alternatives and observing the criteria of proportionality and reasonableness.
§ 3º When applicable, the decision referred to in the caput shall indicate, in the modulation of its effects, the conditions for regularization to occur in a proportional and equitable manner and without prejudice to the general interests.
§ 4º In declaring the invalidity of administrative acts, contracts, agreements, proceedings, or norms, the decision-maker may, considering the legal and administrative consequences of the decision for the public administration and for the administered party:
I - restrict the effects of the declaration; or
II - decide that its effectiveness shall begin at a later date to be defined.
§ 5º The modulation of the effects of the decision shall seek to mitigate the burdens or losses of administered parties or of the public administration that are abnormal or excessive in light of the particularities of the case.
Review of Validity Due to a Change in General Guidance
Art. 5º A decision that orders the review of the validity of administrative acts, contracts, agreements, proceedings, or norms whose effects are ongoing or have been completed shall take into consideration the general guidance of the time.
§ 1º It is prohibited to declare invalid a fully established situation because of a later change in general guidance.
§ 2º The provisions of § 1º do not exclude the possibility of suspending future effects of an ongoing relationship.
§ 3º For purposes of this article, general guidance means the interpretations and specifications contained in public acts of general application or in majority judicial or administrative case law, and those adopted through repeated administrative practice of wide public knowledge.
§ 4º The decision referred to in the caput shall state its reasons in the manner provided in Art. 2º, Art. 3º, or Art. 4º.
Statement of Reasons and Decision on a New Interpretation of a Norm of Indeterminate Content
Art. 6º An administrative decision that establishes a new interpretation or guidance on a norm of indeterminate content and imposes a new duty or a new condition on a right shall provide for a transition regime, when indispensable for the new duty or the new condition on a right to be fulfilled in a proportional, equitable, and efficient manner and without prejudice to the general interests.
§ 1º The establishment of the transition regime shall state its reasons in the manner provided in Art. 2º, Art. 3º, or Art. 4º.
§ 2º The statement of reasons shall consider the conditions and the time necessary for the proportional, equitable, and efficient fulfillment of the new duty or the new condition on a right, and any prejudice to the general interests.
§ 3º A new interpretation or new guidance is one that changes the prior consolidated understanding.
Transition Regime
Art. 7º When applicable, the transition regime shall provide for:
I - the bodies and entities of the public administration and the third-party addressees;
II - the administrative measures to be adopted to conform to the new interpretation or guidance on a norm of indeterminate content; and
III - the term and the manner in which the new duty or new condition on a right shall be fulfilled.
Interpretation of Norms on Public Management
Art. 8º In interpreting norms on public management, the obstacles, the real difficulties of the public official, and the demands of the public policies under his or her responsibility shall be considered, without prejudice to the rights of administered parties.
§ 1º In deciding on the regularity of conduct or the validity of administrative acts, contracts, agreements, proceedings, or norms, the practical circumstances that imposed, limited, or conditioned the action of the public official shall be considered.
§ 2º The decision referred to in § 1º shall comply with the provisions of Art. 2º, Art. 3º, or Art. 4º.
Compensation
Art. 9º The decision in an administrative proceeding may directly impose on the obligated person compensation for undue benefits or abnormal or unjust losses resulting from the proceeding or from the conduct of those involved, for the purpose of avoiding contentious proceedings for the recovery of damages.
§ 1º The decision in an administrative proceeding is within the competence of the public authority, which may require compensation for benefits unduly enjoyed by the private party or for losses resulting from the proceeding or from the conduct of the private party.
§ 2º The compensation provided for in the caput shall state its reasons in the manner provided in Art. 2º, Art. 3º, or Art. 4º, and shall be preceded by a statement from the obligated parties on its appropriateness, its form, and, where applicable, its amount.
§ 3º The compensation may be effected by means of the compromise agreement with interested parties referred to in Art. 10.
CHAPTER III — INSTRUMENTS
Compromise Agreement
Art. 10. Where the authority deems it advisable in order to eliminate irregularity, legal uncertainty, or contentious situations in the application of public law, it may enter into a compromise agreement with interested parties, in compliance with the applicable legislation and the following conditions:
I - after hearing the legal body;
II - after holding a public consultation, where applicable; and
III - the presence of reasons of significant general interest.
§ 1º The decision to enter into the compromise agreement referred to in the caput shall state its reasons in the manner provided in Art. 2º.
§ 2º The compromise agreement:
I - shall seek a proportional, equitable, and efficient solution that is compatible with the general interests;
II - may not grant permanent relief from a duty or condition on a right recognized by general guidance; and
III - shall provide for:
a) the obligations of the parties;
b) the term and the manner for its fulfillment;
c) the manner of overseeing compliance with it;
d) the factual and legal grounds;
e) its effect as an extrajudicial enforceable instrument; and
f) the sanctions applicable in case of noncompliance.
§ 3º The compromise agreement entered into shall produce effects only from the date of its publication.
§ 4º The proceeding that supports the decision to enter into the compromise agreement shall include:
I - the conclusive technical opinion of the competent body on the technical and operational feasibility and, where applicable, on the budgetary and financial obligations to be assumed;
II - the conclusive opinion of the legal body on the legal feasibility of the compromise agreement, which shall contain the analysis of the proposed draft;
III - the draft of the compromise agreement, which shall contain the changes resulting from the technical and legal analyses provided for in items I and II; and
IV - a copy of other documents that may assist in the decision to enter into the compromise agreement.
§ 5º Where the compromise agreement depends on authorization from the Attorney General of the Union and from a Minister of State, pursuant to the provisions of the
§ 6º In the case addressed in § 5º, the final decision on entering into the compromise agreement shall be made by the Attorney General of the Union, pursuant to the provisions of the sole paragraph of the
Management Adjustment Agreement
Art. 11. A management adjustment agreement may be entered into between public officials and the internal control bodies of the public administration for the purpose of correcting flaws identified in control actions, improving procedures, ensuring, whenever possible, the continuity of performance of the subject matter, and guaranteeing that the general interest is served.
§ 1º The decision to enter into the management adjustment agreement shall state its reasons in the manner provided in Art. 2º.
§ 2º A management adjustment agreement shall not be entered into in case of damage to the public treasury caused by public officials who act with willful misconduct or gross error.
§ 3º The signing of a management adjustment agreement shall be communicated to the central body of the internal control system.
CHAPTER IV — LIABILITY OF THE PUBLIC OFFICIAL
Liability in Case of Willful Misconduct or Gross Error
Art. 12. A public official may be held liable for his or her decisions or technical opinions only if he or she acts or fails to act with willful misconduct, whether direct or eventual, or commits gross error, in the performance of his or her duties.
§ 1º Gross error is that which is manifest, evident, and inexcusable, committed with gross fault, characterized by an act or omission involving a high degree of negligence, imprudence, or lack of skill.
§ 2º Willful misconduct or gross error of the public official shall not be established if the case file of the liability proceeding does not prove a factual situation or circumstance capable of characterizing willful misconduct or gross error.
§ 3º A mere causal link between the conduct and the harmful result does not imply liability, unless the willful misconduct or gross error of the public official is proven.
§ 4º The complexity of the subject matter and of the duties performed by the public official shall be considered in any determination of the public official's liability.
§ 5º The amount of the damage to the public treasury, even if substantial, may not, by itself, be an element for characterizing gross error or willful misconduct.
§ 6º Liability for a technical opinion does not automatically extend to the decision-maker who adopted it as a ground for the decision, and shall be established only if there are sufficient elements for the decision-maker to ascertain the willful misconduct or gross error in the technical opinion, or if there is collusion among the officials.
§ 7º In the exercise of hierarchical authority, only a person whose omission constitutes gross error or willful misconduct shall be liable for culpa in vigilando.
§ 8º The provisions of this article do not exempt the public official from acting diligently and efficiently in fulfilling his or her constitutional and legal duties.
Review of the Regularity of the Decision
Art. 13. The review of the regularity of a decision may not replace the role of the public agent, or of the bodies or entities of the public administration, in the exercise of their duties and competencies, including the definition of public policies.
§ 1º The action of oversight bodies shall give priority to preventive measures over sanctioning proceedings.
§ 2º Any estimate of loss caused to the public treasury may not be considered, alone and exclusively, as grounds for concluding that administrative acts, contracts, arrangements, proceedings, or rules are irregular.
Right of recourse, judicial and extrajudicial defense
Art. 14. Within the federal Executive Branch, the right of recourse provided for in § 6º of Art. 37 of the Constitution shall be exercised only where the public agent acted with willful misconduct or gross error in his or her decisions or technical opinions, pursuant to the provisions of the
Art. 15. A federal public agent who must defend himself or herself, judicially or extrajudicially, for an act or conduct performed in the regular exercise of his or her institutional duties may request that the Office of the Attorney General of the Union assess the plausibility of his or her allegations and, consequently, the possibility of providing his or her defense, pursuant to the provisions of Art. 22 of Law 9.028 of April 12, 1995, and other governing rules.
Decision imposing a sanction on a public agent
Art. 16. A decision imposing a sanction on a public agent shall consider:
I - the nature and seriousness of the violation committed;
II - the damages resulting from it to the public administration;
III - aggravating or mitigating circumstances;
IV - the agent's record;
V - the causal link; and
VI - the agent's culpability.
§ 1º The statement of grounds for the decision referred to in the caput shall comply with the provisions of this Decree.
§ 2º Sanctions imposed on the public agent shall be taken into account in calibrating other sanctions of the same nature relating to the same act.
Art. 17. The provisions of Art. 12 do not preclude the application of sanctions provided for in disciplinary rules, including in cases of minor negligent acts or omissions.
CHAPTER V — LEGAL CERTAINTY IN THE APPLICATION OF RULES
Public consultation for the issuance of normative acts
Art. 18. The issuance of normative acts by an administrative authority may be preceded by a public consultation for comments from interested parties, preferably by electronic means. (Repealed by Decree 12.002 of 2024) (Effective Date)
§ 1º The decision to call a public consultation shall state its grounds in accordance with the provisions of Art. 3º.
§ 2º The call for a public consultation shall include the draft of the normative act, shall make the grounds for the act available, and shall set the deadline and other conditions.
§ 3º The deciding authority is not required to comment on or individually consider the comments submitted, and may group comments by connection and eliminate those that are repetitive or whose content is unrelated or irrelevant to the matter under consideration.
§ 4º Proposals for public consultation involving normative acts subject to presidential dispatch shall be made pursuant to the provisions of Decree 9.191 of November 1, 2017.
Legal certainty in the application of rules
Art. 19. Public authorities shall act with a view to increasing legal certainty in the application of rules, including by means of supplementary rules, normative guidance, precedent summaries, statements, and answers to inquiries.
Sole paragraph. The instruments provided for in the caput shall be binding on the body or entity of the public administration to which they are addressed, until further revision.
Opinion of the Attorney General of the Union and of legal advisory offices, and precedent summaries of the Office of the Attorney General of the Union
Art. 20. The opinion of the Attorney General of the Union referred to in Arts. 40 and
§ 1º An opinion of the Attorney General of the Union approved by the President of the Republic but not published binds only the interested offices, from the moment they become aware of it.
§ 2º The opinions referred to in the caput and in § 1º prevail over other mechanisms for standardizing interpretation.
Art. 21. The opinions of the legal advisory offices and of the legal counsel bodies, referred to in
Normative guidance
Art. 22. The authority representing a central system body may issue normative guidance or statements that shall bind the sectoral and sectional bodies.
§ 1º Legal disputes over the interpretation of a rule, instruction, or guidance of a central system body may be submitted to the Office of the Attorney General of the Union.
§ 2º The submission to the Office of the Attorney General of the Union referred to in § 1º shall be accompanied by the position of the legal body of the central system body, of the legal body that disagreed, and of the other bodies that ruled on the case.
Statements
Art. 23. The highest authority of a body or entity of the public administration may issue statements that bind the body or entity itself and its subordinate bodies.
Transparency
Art. 24. It is incumbent upon the bodies and entities of the public administration to keep up to date, on their websites, the supplementary rules, normative guidance, precedent summaries, and statements referred to in Arts. 19 through 23.
Effective date
Art. 25. This Decree takes effect on the date of its publication.
Brasília, June 10, 2019; 198th year of Independence and 131st of the Republic.
JAIR MESSIAS BOLSONARO Paulo Guedes Wagner de Campos Rosário André Luiz de Almeida Mendonça
This text does not replace the text published in the DOU of 11.6.2019
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