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October 9th, 2018

Legislative Newsletter - Edition 100

The Genesis of Agencia Brasileira dos Museus

The objective of this analysis is to distinguish the administrative structure of the newly created Abram and, in addition, the approach to the political-institutional developments resulting from the genesis of this new entity.

Legislative Newsletter - Edition 100

After the fire that destroyed the headquarters of the National Museum of Brazil and almost the totality of the historical and scientific collection the President of the Republic edited Provisional Measure 850, of September 10, 2018, which authorized the Federal Executive Branch to establish the Agência Brasileira dos Museus - Abram and extinguished the Instituto Brasileiro de Museus - Ibram[1].

The objectives of this article are to clarify the differentiation of Abram's administrative structure in relation to traditional regulatory agencies[2] and to briefly outline the initial political-institutional developments resulting from the genesis of this new entity.

Abram, despite being called an agency, has the legal nature of autonomous social service and is subject to the legal regime of private law, "non-profit, collective interest and public utility."[3]. The meaning of the term 'agency' in relation to the traditional regulatory agencies and in relation to Abram must therefore be established in a totally different way.

Having said that, we have that the new entity will have as its purpose the management of museological institutions and their collections and the promotion of the development of the cultural and museum sector[4]; will also be responsible for the reconstruction of the National Museum and its collection[5]. In contrast, Brazilian regulatory agencies were created in 1996 based on international experience. The administrative structure of these bodies was established with the anticipation of their decision-making independence (or enhanced autonomy) in relation to the executive branch, its financial autonomy, its decisions in collegiate regime and with the guarantee of fixed term of the respective leaders. In addition, for regulatory agencies, there are mechanisms of social control such as public hearings and consultations that integrate the concept of legitimization by the procedure[6].

Given these structural differences, it is appropriate to say that Abram, because of its nature and legal regime, will not have normative capacity and regulatory capacity. It will be up to the organization to promote collaborative studies with the Union that can subsidize the creation of norms, guidelines and procedures for the improvement of management models of museological institutions, not the publication of norms[7] and state regulation. With this order of ideas, it should be clarified that the regulatory activity - which, again, cannot be exercised by Abram - corresponds to a kind of administrative activity genre through which a less authoritarian and consensual administrative law is manifested is open to dialogue with society. [8] In other words, state regulation is a means of intervention in the economic domain that serves at the same time to ensure conditions for the exploitation of economic activities and the attainment of public objectives, according to the principles of the economic order[9].

It is now necessary to delineate the organs of the new entity[10], namely: I) The Deliberative Council, which is Abram's supreme deliberation body, composed of: Minister of State for Culture, Director-President of the Executive Board, four representatives of the Executive Branch federal and four alternates, and three representatives of private sector entities of culture and museology and three substitutes, all of these should be indicated in the form of the regulation. They will exercise a mandate of two years, being allowed an extension for equal period, unpaid participation; II) Executive Board, executive body, composed of Chief Executive Officer and four Executive Officers, all of them shall hold a four-year term, which may be renewed for an equal period, and may receive remuneration. III) Fiscal Council, supervisory body, composed of three members and three alternates, chosen by the Deliberative Council: (i) two incumbents and two alternates appointed by the representatives of the Federal Executive Branch, (ii) one incumbent and one appointed by representatives of private entities.

It is interesting to note that Abram may hire and administer personnel under the Consolidation of Labor Laws regime[11]. With regard to the financial resources of the entity, the large number of sources of income, such as: social contribution funds, resources transferred from appropriations recorded in the General Budget of the Union, donations, additional credits, transfers or onlendings.

In addition, the President of the Republic also issued Provisional Measure No. 851, dated September 10, 2018, which provides, among other things, for the collection, management and allocation of donations of individuals and legal entities. In effect, Abram may be supported by the donations received in the form of Provisional Measure No. 851/2018, because it falls within the species of entities listed in the sole paragraph of art. 1º and art. 2, item I, of this legal norm.

Given these legal elements that differentiate the administrative structures of the traditional regulatory agencies and Abram, the unavoidable conclusion is that the entity's activity differs substantially from a state intervention activity in the economic domain.

With regard to the initial political-institutional developments, one can briefly point out the claim of the Brazilian Service of Support to Micro and Small Enterprises (SEBRAE) to file a writ of mandamus in the Federal Supreme Court (STF), in order to suspend the 6% of its resources for Abram, and, after the electoral period, intend to discuss the issue in the National Congress[12].

Since September 10, the Provisional Measures have the deadline until November 9 (60 days from its publication), a term that can be extended for the same period, to be considered in the National Congress. Due to the elections, the process in the Legislative is stopped, but the term of validity does not. It is necessary that the two Houses separately appreciate the materials so that the texts are promulgated.

Thiago Barbosa Gil[1]
Diego Vinicius Silva[2]

 

[1] Thiago Gil is lawyer at Correia da Silva Advogados and is currently attending the Master’s Degree in Regulatory Law at Fundação Getulio Vargas. He holds an MBA in Business Law from Fundação Getulio Vargas.

[2] Diego Silva is Trainee at Correia da Silva Advogados. Has experience in Law, with emphasis on Public Law.

[1] The authors are grateful for the help and suggestions of Heloisa Rodrigues Itacaramby Bessa, Mariana Barros de Oliveira and Joao Victor Cialdini Accica Silva.

[1] Ibram was established in 2009 by the Law nº 11.906. This was, as provide for in article 1 of it´s criation, a “federal autarchy, having legal personality of greening public , with administrative and financial autonomy, linked to the Ministry of Culture”.
[2] Federal regulatory agencies are: The Aneel (Lei n° 9.427/1996), a Anatel – Agência Nacional de Telecomunicações (Lei n° 9.472/1997), the ANP – Agência Nacional do Petróleo (Lei n° 9.478/1997), the Anvisa – Agência Nacional de Vigilância Sanitária (Lei n° 9.782/1999), the ANS – Agência Nacional de Saúde Suplementar (Lei n° 9.961/2000), the ANA – Agência Nacional de Águas (Lei n° 9.984/2000), the Antaq – Agência Nacional de Transportes Aquaviários (Lei n° 10.233/2001), the ANTT – Agência Nacional de Transporte Terrestre (Lei n° 10.233/2001), the Ancine – Agência Nacional do Cinema (Medida Provisória n° 2.228/2001) and the Anac – Agência Nacional de Aviação Civil (Lei n° 11.182/2005).
[3] BRASIL, Provisional Measure 850, of September 10, 2018, article 1: “The Federal Executive Branch is authorized to establish the Brazilian Agency of Museums - Abram, an autonomous social service, in the form of a private non-profit legal entity, of collective interest and public interest, for the purpose of managing museological institutions and their collections and promote the development of the cultural and museum sector”.
[4] Ibid.
[5] Ibid, article. 22: “Abram will be responsible for the reconstruction of the National Museum, which deals with Decree-Law No. 8,689 of 1946, and its collection ”.
[6] That is, the attenuation of the democratic deficit by a procedure that guarantees the public participation. According to Egon Bockmann Moreira, it is necessary to multiply the control systems, that is to say, that there is a real procedure, "a normative elaboration so that it had a more proactive activity of the regulatory agencies in the sense that they, the agencies, instigated the the participation of specific representation bodies, perhaps even the Public Prosecutor's Office, consumer associations, trade unions, and, secondly, that a system of multiple controls, that is, control over the substance of provision , control by the National Congress, control by society”. MOREIRA, Egon Bockmann. Há um Déficit Democrático nas Agências Reguladoras? R. de Dir. Público da Economia - RDPE, Belo Horizonte, ano 2, nº. 5, p. 163-224, jan./mar. 2004
[7] Ibid, article. 2, subsection II: "Abram is responsible for maintaining the competencies of the Ministry of Culture: (...) II - to promote collaborative studies with the Union that can subsidize the creation of norms, guidelines and procedures with a view to improving the management, performance and sustainability models of museological institutions and establish internal standards and procedures for best practice ".
[8]MARQUES NETO, Floriano de Azevedo. Regulação e interesses públicos. São Paulo. Malheiros, 2002, p. 194-211.
[9] BRASIL. Federal Constitution of 1988, article. 170. In addition, article. 174 of the Constitution reserves to the State the role of regulator of all economic activities and not only those in which the regime of public law, a derogation of free initiative (article. 175).
[10] As stated in the articles 5, 6, 7 e 8 da MP 850/2018. BRASIL, Provisional Measure nº 850, of September 10, 2018.
[11] Provisional Measure nº 850, of September 10, 2018. article. 15.
[12] available in: <http://agenciabrasil.ebc.com.br/geral/noticia/2018-09/sebrae-prepara-mandado-de-seguranca-para-suspender-mp-que-cria-abram>.