SÃO PAULO, SP (FOLHAPRESS) – In response to a request for clarification from Minister André Mendonça, of the STF (Federal Supreme Court), Minister Moura Ribeiro, of the STJ (Superior Court of Justice), sent a letter this Wednesday (30) in which he explains why he voted in favor of CSN (Companhia Siderúrgica Nacional) in the company’s conflict with Ternium.
The two companies are fighting over Usiminas’ shares and compensation, which, when corrected, has already exceeded R$ 5 billion. In the document, the judge affirms that the international company covertly assumed control of Usiminas.
Moura Ribeiro was rapporteur of the special appeal presented by the CSN before the STJ and, therefore, received André Mendonça’s request for clarification and responded. The case discusses whether or not there was a change of control of Usiminas when the Italian-Argentine group company Techint bought, in 2011, the shares of Votorantim and Camargo Corrêa in the steel company, obtaining 27.7% of the shares.
With the purchase, Ternium became part of the control group, which also included Nippon and the Usiminas Employees Fund.
“With the entry of the Ternium group into the control block of Usiminas, a new shareholder agreement was signed, highlighting that relevant decisions, related to issues considered strategic for the management of Usiminas, depend on the approval of 90% of the binding actions. (…), with the stipulation of the need for consensus between the Nippon group and the Ternium group for the appointment of the president and director of Usiminas,” wrote Moura Ribeiro in the letter 014601/2024, to which Folha had access.
This is the argument of the CSN (Companhia Siderúrgica Nacional), which went to court asking for compensation because it believed that Ternium had secretly taken control of the Minas Gerais steel company. This should have initiated a takeover bid (Public Offering of Shares) or “tag together”, in corporate jargon, when the buyer must propose the purchase of minority shares (such as CSN) for at least 80% of the value of the group’s shares. . control.
The OPA obligation in the event of a transfer of control is provided for in article 254-A of law 6,406/76, Brazilian Companies Law. For CSN there was fraud, something that Ternium denies, stating that its rival did not provide evidence during the process.
The Italian-Argentine company maintains that there was no transfer of control because it only entered the block that controls Usiminas, it did not take over. And that is how the CVM (Securities Commission) understood it, the body in charge of analyzing cases like this one.
Moura Ribeiro wrote to André Mendonça that he voted in favor of the special appeal because “the acquisition of Usiminas shares by the Ternium group, with its entry into the control block, combined with the reordering of the agreements between the components of the control block, resulted in the control of the sale of Usiminas, demanding that a Public Acquisition Offer (OPA) be made of the shares with voting rights of the majority shareholders,” wrote the STJ minister.
The “rearrangement of agreements” refers to an alleged agreement between Ternium and the Japanese group.
In the litigation with the CSN, Ternium won in all instances in the São Paulo court and received a favorable ruling from the CVM. Even in the STJ he obtained a favorable decision, but everything changed in declarations of embargoes and changes of ministers due to death (Paulo de Tarso Sanseverino) and conflict of jurisdiction (Marco Aurélio Bellize). At trial, the court decided that the takeover should have been carried out. CSN obtained compensation of R$ 5 billion.
Mendonça sent a letter to the STJ because it analyzes an ADIN (Direct Action of Unconstitutionality) presented by the AEB (Brazilian Association of Foreign Trade), which requests the STF to clarify the issue of the OPA in the S/A Law, also requesting an “interpretation constitutional” to the issue, making it clear that he wants the opinion of the CVM to prevail in the conflict over Usiminas.
With the argument of legal uncertainty, the CNT (National Transport Confederation), Fiemg (Federation of Industries of the State of Minas Gerais), ATP (Association of Private Port Terminals), ACMinas (Commercial and Business Association of Minas Gerais) and Previdência Usiminas (Usiminas’ employee fund) requested that the STF be added as a “friend of the court” in the process.
It is a process in which a third party is considered interested in the case, receives notices of hearings, movements and, most importantly, has the right to speak in trials.
In the letter, Moura Ribeiro recalls that Usiminas was controlled by a block that owned 63.68% of the shares with voting rights, composed of Nippon (27.76%), Votorantim/Camargo Corrêa (25.97%) and Previdência Usiminas (10.13%).
The Ternium Group, which was already a shareholder, acquired 27.76% of the shares, including those of Votorantim/Camargo Corrêa and Previdência Usiminas. It was 43.77% of the control group.
Here is the crux of the discussion. Ternium maintains that it does not command Usiminas because it does not have a voting majority and that it has already had disputes with Nippon, including the removal of the president. The CSN’s thinking, supported by the STJ and Moura Ribeiro, is that in the numerical distribution of the shares this did not really happen but, in practice, there was an alienation of control.
After the STJ ruling, Ternium filed an appeal. He stated that the clarification appeals presented by the CSN initially were unfounded. The office is used to resolve doubts or report omissions that have not occurred. He also maintained that the issue of fraud required a new evidentiary examination. The CSN asked to challenge this appeal, which has not yet been judged.
When contacted, Ternium will not comment on the work.
In a statement, the CSN stated that “the letter sent to the Supreme Federal Court technically demonstrates that the decision of the Third Chamber of the STJ is in accordance with the administrative and judicial jurisprudence regarding transfer of control. The CSN reaffirms its confidence in the Judiciary and in its rejection of the use of constitutional jurisdiction to protect improper private interests.”