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Novo marco legal do saneamento não respeita os contratos em andamento, causando insegurança jurídica no país, alerta a ABES

O texto referente à alienação prevê vender as empresas estatais de saneamento sem consultar municípios e sem observar cláusulas específicas que impedem a mudança de controle acionário. Haverá mais insegurança jurídica no setor e o afastamento dos investimentos, prejudicando a universalização, frisa a Associação Brasileira de Engenharia Sanitária e Ambiental.

A ABES – Associação Brasileira de Engenharia Sanitária e Ambiental vem alertando que o texto do Projeto de Lei 3.261, apresentado pelo deputado Geninho Zuliani (DEM-SP), relator da Comissão Especial da Câmara, que analisa as propostas para revisão do marco legal do saneamento (Lei nº 11.445, de 5 de janeiro de 2007), vai desestruturar o setor no Brasil.

O PL prevê que, em caso de alienação de controle acionário de empresa pública ou sociedade de economia mista prestadora de serviços públicos de saneamento, os contratos de programa ou de concessão em execução serão transformados em contratos de concessão automaticamente, sem consulta nem anuência dos titulares dos serviços, os municípios.

O Artigo 15, que trata sobre o assunto, diz que os contratos de programa serão substituídos por contrato de concessão, sem consulta aos municípios. Se nada for alterado, fica dispensada qualquer forma de anuência prévia por parte do titular. Se houver alterações de prazo ou objeto, o município será consultado, os titulares deverão manifestar sua decisão em 180 dias. Se não aceitar, poderão assumir os serviços, mediante prévio pagamento de indenizações.

Este artigo é um mar de futuros processos judiciais, pois uma parte dos municípios não serão consultados sobre a mudança do controle acionário e a outra parte, que será consultada, terá uma verdadeira faca no pescoço dos prefeitos, pois se a Prefeitura não aceitar a alteração proposta, deverá assumir os serviços ou pagar previamente a indenização dos investimentos realizados e não amortizados, será praticamente uma rescisão unilateral, um desrespeito ao contrato em andamento.

Outro ponto, que pode levar a futuros processos judiciais, trata de cláusulas específicas nos contratos de programa que não permitem a transferência do controle acionário da empresa estatal para iniciativa privada. Na maioria das empresas estatais estas cláusulas são expressas nos contratos, sendo que o mesmo será extinto em caso de transferência do controle acionário. Vejam o exemplo das duas maiores empresas de saneamento do país, a Sabesp e Sanepar, que trazem estas cláusulas nos seus contratos de programa existentes. Os dois maiores municípios destas duas empresas, Curitiba e São Paulo, responsáveis por mais da metade das receitas das empresas, tem esta cláusula impeditiva, que o texto do relator insiste em dar prosseguimento, desrespeitando os contratos em andamento.

O Governo Federal insiste na separação dos prestadores de serviço de saneamento público e privado. O texto prioriza a operação dos serviços pelo setor privado, destruindo as empresas estatais de saneamento. Neste texto, que trata da alienação do controle acionário, fica clara esta priorização a todo custo, inclusive colocando em risco jurídico os contratos em andamento. Se a promessa deste PL é atrair investimentos para o setor, fica a pergunta: quem vai investir num país com tanta insegurança jurídica e propenso a um tsunami de judicialização?

“O sonho da universalização do saneamento para poderá ficar cada vez mais distante. E novamente os mais prejudicados serão os brasileiros mais pobres, que vivem sem acesso a água potável e esgoto tratado e sujeitos a contrair todo tipo de doenças”, adverte o Presidente Nacional da ABES, Roberval Tavares de Souza.

Para a ABES, a modernização do marco legal do saneamento deve ter como premissa a eficiência. A lógica é unir os melhores modelos públicos com os melhores privados.  “Durante esses quase dois anos de discussão sobre a revisão do marco legal, criou-se essa polarização público/privado, que esvazia o verdadeiro cerne da questão: a eficiência das empresas. A união do setor público com o setor privado é que vai permitir que o saneamento avance no Brasil, mas esta não é a visão que o PL 3.261 apresenta”, frisa o presidente da ABES.

 

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