During World War II, after the Brazilian ship Taubaté was bombed in the Mediterranean Sea by a German Air Force plane, the President of the Republic Getúlio Vargas signed Decree-Law nº 4.166/1942, which determined the blockade of goods of all Axis subjects (Germany, Italy and Japan) to guarantee eventual reparation for damages caused to Brazil.
The decree affected a lot of shares owned by the German shipping company F. Laeisz, which, in the last century, transported inputs for the production of Brahma beers, and which, 116 years ago, decided to invest in the brewery.
Part of the blocked shares was returned to F. Laeisz, after a favorable decision by the Federal Supreme Court (STF), in 1975. Another part, more specifically 74,211,825 common shares of Ambev, owner of Brahma, were rediscovered only in the 1990s. .
The Union claims the shares for itself on the grounds that the company lost the right to requisition the papers over time.
In 2016, the General Coordination of Shareholdings of the National Treasury (COPAR-STN) sent a letter to Banco Bradesco determining the elimination of the CNPJ linked to F. Laeisz and the transfer of the papers to the Federal Government.
The lawsuit against Ambev and the sentence
F. Laeisz took the case to the Judiciary and asked for Ambev's conviction so that the brewery pays him the dividends he would be entitled to. On the other hand, the Brazilian company argues that there is doubt about the ownership of the shares and, consequently, about who is the legitimate creditor of the respective dividends. The case is being processed in the Federal Court of São Paulo under the number 5020297-24.2018.4.03.6100.
Judge Djalma Moreira Gomes, of the 25th Federal Civil Court of São Paulo, understood that the Germans are right and ordered Ambev to pay all dividends, interest on equity or any other form of remuneration paid to shareholders since April 2012 referring to the 74,211,825 registered common shares in question. It is estimated that the amount, which will still be calculated in the liquidation phase, is currently already over R$ 300 million.
The magistrate considered that Ambev's doubt as to the ownership of the shares is "selective", since although it did not pay the dividends on the grounds that there is uncertainty regarding the holder of the securities, "it had no doubt in admitting the participation of the plaintiff. [F. Laeisz] in the meetings, in the condition of holder of these same shares”.
In the lawsuit, Renato Feitoza Aragão Junior, a lawyer for the Union, alleges that the German company lost the right to request the shares for itself and, therefore, they must be incorporated into the assets of the Union. “Decay is a legal fact, which causes the extinction of the right itself by the inertia of its holder, consolidating legal situations, in order to enforce the primacy of legal certainty”, he argues.
Junior argues that Ambev's shares would also be definitively incorporated into the Union's assets as a result of the adverse possession period. The thesis is controversial even among the legal bodies of the Union itself.
The Attorney General of the National Treasury (PGFN), in turn, in Opinion PGFN/CAF/2371/2008, understood that “the illegal transfer of share ownership by the Administration to itself is typically a null act (not only voidable), which did not generate rights for third parties, but, on the contrary, confiscated the property right of the legitimate owners of the shares in question”.
The judge has a similar view. To him, the Union's claims resemble “the arguments that the wolf in Aesop's fable presented to the lamb to justify why he would devour him. It seems to say: the actions are mine, and that's it."
According to the magistrate, the decree of Getúlio Vargas only established a lien – removed by a later decree – that prevented the sale of shares, so that there was no seizure of the securities. “If the shares were not apprehended, it would be illogical to expect the holder to seek the release of what was not apprehended”, he decided.
Furthermore, says the judge, the inscription in the “Registry of Nominative Actions” book is the essential formality that proves ownership precisely because it (registration) does not occur randomly, but claims the existence of a “skilled document” ( which is filed with the Company) to reveal the underlying legal transaction or the judicial decision that, taken in a regular process, constitutes the acquisition title.
In other words, writes the magistrate, “until a JUDICIAL DECISION that declares the NULLITY of the registration, ope legis, the owner of the nominative shares is the one whose name appears in the registration in the book”. In this case, therefore, the owner of the shares would be F. Laeisz.
Ambev had considered the sentence silent and, in a motion for clarification, argued that the letter sent to Bradesco in 2016, which determined the transfer of shares to the Federal Government, would continue to take effect in the face of the failure of the appeal of a writ of mandamus filed by the Germans. , at the Federal Regional Court of the 1st Region, under number 1001586-16.2016.4.01.3400.
On December 11, however, F. Laeisz obtained a suspensive effect until the judgment of embargoes in the writ of mandamus. In the case against Ambev, on December 16, the judge denied Ambev's motion for clarification “since it does not seek to correct any defect in the sentence, but rather to change the outcome of the trial”.
The decision condemning Ambev does not take immediate effect and must be reviewed by the Federal Regional Court of the 3rd Region as it involves the Public Treasury. Subsequently, the case must reach the higher courts. Everything indicates that this procedural battle is still far from over.
Sought after, Ambev and the offices Pinheiro Neto, which defends F. Laeisz, and Mattos Filho, who defends the Brazilian brewery, declined to comment.
Source: Kalleo Coura via Jota.