The precautionary measure presented at the Supreme Administrative Court by the Liberal Initiative and its president, João Cotrim Figueiredo, points to a lack of suitability and conflict of interest to require that the Council of Ministers be summoned to refrain from appointing Mário Centeno governor of Banco de Portugal, the inhibition is maintained until it is clear whether the choice of the former finance minister is legal or until legislative changes occur "that allow or expressly prevent this appointment". Something that will imply that the vote on the specialty of the PAN bill which stipulates five years of incompatibility at the central bank for those who have exercised government functions in the area of Finance.
But even if the request for a provisional decree of the measure is rejected or if it is not possible to assess it in due time by the advisory judges of the Supreme Administrative Court, the petitioners still ask for the suspension of the act of appointing Mário Centeno in the meantime.
According to the precautionary measure against the Council of Ministers and having Mário Centeno, to whom Jornal Económico had access, the Liberal Initiative and João Cotrim Figueiredo argue that the appointment of Centeno to succeed Carlos Costa is against the law, since does not objectively fulfill the “proven suitability” criterion required by the Organic Law of Banco de Portugal.
“The 'suitability' can and should be analyzed objectively, and its evaluation is not a moral judgment or characterization of the 'candidate' for governor. The 'suitability' is intended to verify whether, regardless of the technical skills and knowledge, the 'candidate' can develop his / her action free of constraints and with the correct perception and acceptance of that same action by its target audience and the general public ", The document reads, stressing the applicants that such criterion" aims to ensure that no member of the board of directors of Banco de Portugal puts itself in a situation where, even informally, there may be temptations or constraints to request or receive instructions other actors ”.
As for the concept of 'conflict of interest' also provided for in the Organic Law of Banco de Portugal, as a “situation in which the members of the Board have private or personal interests that may influence, or appear to influence, the impartial, exempt and independent performance of the respective functions ”, the precautionary measure presented by the Liberal Initiative and by its president defending that, being appointed governor, Mário Centeno“ will be irremediably confronted on a daily basis with multiple situations in which he will have to invoke or ponder conflicts of interest ”. Something that will force you to choose between making decisions and taking actions even in the face of a risk of evaluation, perception and negative reception of them, “thus jeopardizing your independence of action and that of Banco de Portugal”, or declare yourself prevented to put up with or decide, “thus calling into question its effectiveness of action and that of Banco de Portugal itself”.
“A direct revolving door from the position of Minister of Finance to Governor of Banco de Portugal creates such a potential for situations of 'conflict of interest' that suitability is always and necessarily at stake, regardless of the personal qualities of the 'candidate'” , read in the precautionary measure, whose interposition was announced by João Cotrim Figueiredo during the hearing of the former Finance Minister at the Budget and Finance Committee.
In the case of Centeno, it is considered that “the evidence of these effects on suitability is even more striking”, because if you are governor you will have as the interlocutor in the Ministry of Finance “someone from your circle and who was in your direct reporting line until recently ”- the former Secretary of State for Budget, João Leão, who succeeded him as minister -,“ will be confronted with his own decisions and acts as minister of finance ”and“ will answer before an Audit Committee fully appointed under the your aegis ”.
“We think that a clearer example of governmentalization is not possible than the direct departure of a Minister of Finance for governor of Banco de Portugal, even more following the appointment of someone who, days before, was Secretary of State for the nominee; and being appointed by a Council of Ministers made up of people who, days before, were his colleagues in Government ”, the applicants write, considering that“ the violation of the 'spirit of the law' in this case is clear ”.
Government accused of “flagrant violation of the principle of administrative good faith”
In addition, the Liberal Initiative and Cotrim Figueiredo point to “a flagrant violation of the principle of administrative good faith”, insofar as the Government is fully aware that a legislative process is underway, already generally approved, which alters the conditions for the appointment of the central bank governor. It should be noted that it started when Mário Centeno was Minister of Finance, “in a context in which his name could never be considered” to succeed Carlos Costa.
The applicants point to “an evident acceleration” of the Executive's intention to place the holder of the Finance portfolio in the central bank, “which became certain and manifested with the unusual resignation” of Mário Centeno, “then it seems that the Government wants to 'overcome' any legislative measures and impose their choice before they take effect ”, which would happen in case of approval of the bill in particular by the Budget and Finance Committee.
"An attempt to 'defraud' the legislative power may also be at stake, thereby also violating constitutional principles of separation and interdependence of powers", defend the claimants, asking that the measure be decreed by the advisory judges of the Supreme Administrative Court .
Finally, arguing that the current governor of Banco de Portugal and the rest of his team will remain in office until they are replaced, João Cotrim Figueiredo and the Liberal Initiative consider the legal conditions for the provisional decree of the subpoena to be verified, in the insofar as it “seems evident” that the Council of Ministers “is preparing to perform an act within a few days that the applicants consider to be illegal. Especially because the appointment of Mário Centeno "causes dangers and insoluble damage", since once the former Minister of Finance becomes governor of Banco de Portugal "he benefits from privileges that aim to ensure his independence, namely the maintenance and immovability of his position , and cannot, in principle, be exonerated ”.