OIL REVENUES: LEGAL NATURE, SHARING MODEL, REGIONAL EQUITY AND NATIONAL DEVELOPMENT

Abstract

The work that we intend to accomplish is a study about the legal regulation of the revenue received by the Brazilian state with the oil and natural gas in its territory (royalties and special participation). This analysis will be based on the following aspects: the legal nature of that revenue, the way of sharing among federal, state and municipalities, and how they are applied by them. All this in order to assess the consequences of the current model of allocation of those resources and to demonstrate the urgent need of its compatibility with the national development promotion and the reduction of regional inequalities. The current model of distribution of royalties and special participation is defined in a 9.478/97 and 7.990/89 federal laws, following the commandment of 1º paragraph of article 20 of the Federal Constitution. According to the constitutional law, although oil and natural gas are property of the Union, should be ensured to the States, Federal District and municipalities, as well as the direct administration departments of the Union, a participation in exploration results or a financial compensation, in return the exploitation practiced in their territory, continental shelf, territorial sea or exclusive economic zone. The constitutional law mentioned, if interpreted literaly, gives the lawmaker the possibility to choose if the federal entities will be rewarded either with participation or financial compensation. Based on this interpretation, allowed that the transference of these resources, for both the subnational entities and the departments of the Federal Government, occurred only through "paticipation", even in cases where the statutory law talks expressly in compensation. This lack of differentiation among these institutes causes serious practical consequences, due to the profound difference between them. The compensation requires the occurrence of damage, what matters in the existence of a limit to the quantum to be transferred to your beneficiaries, which correspond exactly to the damage caused to them. The participation in the operating result is a mere percentage of the turnover, and there is, therefore, no limit on their transfer.Thus, through an accurate analysis of the legal nature of those institutes (financial compensation and participation in exploration results), interpreting them accordingly the fundamental objectives of the Brazilian state, outlined in the Federal Constitution, try will find the real meaning of the constitutional norm.Will be also analised the criteria of sharing oil revenues contained in the Petroleum Law (Law 9478/97) and Law 7990/89; the historical moment of its conception, the consequences generated by them in the current framework of oil exploration and the new scenario that exists in Brazil with the discovery of the pre-salt layer. In a comparative analysis, will be studied mechanisms for sharing revenue from the exploitation of oil and gas from the main countries explorers, especially those organized in the federation. Upon completion of the analyses which is being proposed, will be presented proposals aimed at adapting the form of division and application of oil rents to the objectives of the Federative Republic of Brazil, namely, the national development and the reduction of regional inequalities, listed in article 3 of the Federal Constitution.