Publications

Category: White-Collar Crime

In a recently published judgment, the 3rd Section of the Superior Court of Justice (STJ) affirmed the understanding that the termination of the legal personality of the company resulting from its incorporation resembles the death of the individual. In Casu, it was considered that the termination of legal personality extinguishes the punishability for environmental crime, as it occurs when an individual dies.

The case relates to charges pressed against an agricultural company for pollution by launching solid waste (Article 54, § 2, item V, of Law 9.605/98). The defense argued that the complaint must be dismissed because the defendant had been incorporated by another company and, therefore, its liability would have been extinguished by analogy to the case of death of an individual. The new company, on the other hand, could not become a defendant in the criminal proceedings for absolute illegitimacy of parties, since it had not committed the alleged criminal conduct.

The first-degree court rejected the defense's arguments and ordered the continuation of criminal prosecution. Thus, the defense filed a warrant before the State Court of Justice of Paraná (TJPR), arguing that the first-degree decision would have violated the right to defense and the due process, since the theses presented on the illegitimacy of part and extinction of the liability for incorporation were not even analyzed in the decision.

The TJPR^[1] accepted the arguments of the defense and granted the warrant, recognizing that there was a violation of the rights in question. The court decreed the nullity of the order, but did not assess the thesis of illegitimacy of part or extinction of the liability, on the grounds that such analysis would characterize the suppression of instance.

The case returned to the first-level judge, where the preliminary theses of extinction of liability and active illegitimacy were expressly rejected. According to the court decision, the corporate incorporation implies the receipt of both the liabilities and the assets of the incorporated company so that the responsibility for acts performed by the company incorporated remain. Otherwise, one could make room for impunity.

The defense filed another warrant before the TJPR, reinforcing the extinguishment of the liability by incorporation under Article 107, item I, of the Penal Code.

The TJPR^[2] granted the warrant ruling in favor of the extinguishment of the liability by the incorporation thesis. According to TJPR, the crime described the complaint corresponded to activities carried out ten years before the incorporation, and the extinction of the legal entity would correspond to the death of the natural person, which extinguishes the criminal liability by law.

The court noted, however, that the extinction of liability is restricted to the criminal jurisdiction, resisting the civil obligations of the company.

The Public Prosecutor's Office then filed an appeal to the STJ, arguing that the extinction of liability by death and the principle of personality^[3] of the penalty would be restricted to individuals.

When judging the appel^[4], the rapporteur of the case in the STJ raised the following points:

• The non-equalization by analogy of the principle of intransferability of the liability to the company would result in a strict liability to the defendant.
• By the very logic of law, it would be impractical to legally prosecute and punish an agent who no longer exists for the purposes of Brazilian law.
• There must be an analogy interpretation of Article 107, item I, of the Penal Code, which lists the death of the agent as the cause of extinction of the liability, to the case in question, since there would be the interruption of the existence – in legal terms – of the active subject of the conduct investigated.
• The fact that criminal law allows business societies to be charged with environmental crimes implies that, even if there are specificities for their punishment, these defendants must have all the fundamental guarantees ensured in the context of due process.
• It would be a failure of the isonomy of criminal law if the protective institutes directed at the defendants were denied to legal entities, since they also constitute themselves as taxable persons of criminal prosecution in this situation.
• The principle of personality of the criminal penalty must be maintained even if there are particularities related to the defendant, not being removed by its corporate character. Although it is understood that the original intention of the institute targeted individuals, this is due to the historical impossibility of having reference to moral entities, and there should be analogy in favor of the defendant in this gap. Moreover, it would not be reasonable to fill that omission in criminal matters by the transmissibility of civil law provided for in the arts. 1,116 cc and 227 of Law 6,404/76.
• Criminal liability does not equate to the constitution of the property obligation, which would be transmitted to the incorporator. This differentiation is due to the nature and purpose of the institutes. While the constitution of obligations comes from the human will in relation to the legal system and can be completed by payment, the sanction is imposed by an imposition of obligation and responsibility by the public authorities, and it is necessary to mediate it for its application. The legal consequences also differ, therefore, while the obligation affects the property by the adoption (spontaneous or forced) or generates the resolution in losses and damages, the punitive claim implies the application of penalty, which can reach the freedom, individual rights and the life of the sentenced, in addition to his assets.

The rapporteur then voted to maintain the decision of the TJPR and to recognize the incorporation as the cause of extinction of the liability. It was followed by the majority of ministers who set the extinction of the liability by incorporation, provided that absent evidence of fraud in carrying out the incorporation.

The recognition of the extinction of liability, however, was not a consensus among ministers. There were also divergent votes to overrule the TJPR's decision, with the following arguments:

• The criminal types provided for in Law 9.605/98, applicable to legal entities, establish accountability through obligations to give and do, which could very well be transmitted to the incorporator in the determinations of civil law.
• The incorporation is only a fictitious death, since the incorporated remains alive in the subsequent company through its activities and economic functions. The equivalent of an analogy of "death" should be reserved for cases in which there is the dissolution and liquidation of the company, since there would be a complete cessation of its activities.
• Incorporation cannot be equated with death both by a lack of legislative provision and by the fact that it is not an irreversible and definitive issue.
• The developer has particular means for the investigation of criminal or administrative procedures involving the incorporated, and the liability cannot be extinguished due to the fact that the operation took place in the absence of due diligence deliberate blindness.
• The extinction of the liability by death would not be appropriate in cases of incorporation due to a divergence of purpose of the institutes. While the first is for the logical impediment of punishment, the second is a particular act, and this cannot extinguish the punitive claim.
• The extinction of liability in these cases would deflate the effectiveness of environmental criminal devices, since, in case of possible punishment, the existence of the legal entity may be terminated, preventing its liability.
• Even if it is understood that legal entities have procedural guarantees when subjected to criminal prosecution, only those possible should be applied and the framing of the principle of personality is not possible.
• There would only be substantial offense to the principle of personality if a dissenting partner or director in the decision that gave rise to criminal conduct were also punished, which did not occur in casu.
• By comparison with Spanish criminal law, it is observed that the punishment of the incorportor would not be a transfer of punishment from one person to another, but rather the perpetuation of the liability of a previously committed crime.

With the ruling of the STJ for the extinction of criminal liability of the legal entity by the incorporation, a very well-delimited barrier of the scope of the criminal punishment is established, which is limited to the agent of the imputed conducts. With this, a brake is established on the persecution expansionism that characterizes corporate criminal law.

It should be noted, however, that this decision applies to the criminal liability of legal entities. However, any damages or violations of environmental legislation may have repercussions in three distinct and independent spheres: administrative, civil and criminal. As the STJ's thesis is restricted to criminal repercussions, it is possible that the liability of incorporated companies persists in other spheres.

The STJ pointed out that there were no indications that the incorporation had occurred fraudulently to exempt the incorporated, but did not detail the criteria to be observed to identify a fraudulent incorporation.

The issue can still be analyzed by the Supreme Court (STF) under the aspect of constitutional compliance, but, in the short term, the STJ's thesis may influence any ongoing criminal proceedings and even convictions pending of appeal.

^[1] Decision given in a writ of security on 15 August 2019.

^[2] Decision given in a writ of security on 10 October 2020.

^[3] It is the principle rule that provides that the penalty cannot transcend beyond the person to whom the typed conduct has been imputed. It is positive in the Article 5, item XLV, of the Constitution of the Republic.

^[4] STJ, Special Appeal 1.977.172/PR, 3rd Section, Rel. Min. Ribeiro Dantas.

Category: Infrastructure and energy

The biogas sector has been gaining more space in Brazil in recent years. It is a critical segment in the current global scenario, in which sustainable solutions are sought in the energy transition effort. In this sense, having an adequate legal and regulatory framework and abundant raw material are fundamental factors for the development of biogas projects, as evidenced by international experiences.

In relation to the raw material, Brazil figures in a prominent position in the global scenario, according to the Brazilian Association of Biogas and Biomethane (Abiogás). The country is one with the highest potential for biogas production in the world from waste from agroindustry (especially sugar alcohol), livestock, and sanitation.

In 2022, we have seen a strengthening of the incentive to use biogas and biomethane with the publication of Decree 11,003/22, which instituted the Federal Strategy to Encourage the Sustainable Use of Biogas and Biomethane. Following the decree, the Ordinance 71 of the Ministry of the Environment, which established the National Methane Emission Reduction Program (Zero Methane Program), and the Normative Ordinance 37 of the Ministry of Mines and Energy, which have included biomethane production projects in the list of the Special Incentive Regime for Infrastructure Development (Reidi).

This scenario of favourable conditions to produce biogas and biomethane in the country, associated with the need for viable solutions in the short term for meeting the goals of decarbonization and increasing national energy security, has led agents to point the sector as extremely attractive for investments. The establishment of programmes and policies aimed at the development of structuring biogas projects are paramount to attracting more investments. This is the case of initiatives such as the Zero Methane Program, which stipulates some guidelines for reducing methane emissions.

The challenges around biogas regulation, however, are still considerable. Despite its equivalence to natural gas for regulatory purposes (provided for in Law 14.134/21 (Gas Law) and Decree 10,712/21 (Gas Decree)), it is necessary to consider that all the regulation applicable today to biomethane was elaborated under the rationale applied to fossil hydrocarbon. Because it is a "borrowed" regulation, there are some regulatory gaps or even relevant doubts that can generate legal uncertainty for the development of projects in the area.

The timing of regulatory review, therefore, is opportune for agents of the sector to stand before the National Petroleum Agency (ANP), to contribute to the establishment of standards capable of meeting the needs of the market.

In addition to the effort at the federal level, it is urgent to develop state policies. The absence of specific regulation in most states of the country reveals an important bottleneck. Few states have legislation focused on biogas and/or biomethane: São Paulo, Rio de Janeiro, Rio Grande do Sul, Paraná, Santa Catarina and Goiás.

Biomethane has an unparalleled internalization potential, which can contribute to the demand formation in regions not integrated into the national gas transport grid – such demand creating is fundamental to anchor the infrastructure building in new markets. This potential for the internalization of biomethane production also reveals a vocation to reach local markets, which as more restricted, through its injection into the distribution grid.

The biomethane production scale tends to be comparatively lower than that of natural gas. The daily production volume and the corresponding injection into pipelines is more compatible with an operation involving local distribution networks than gas transport networks.

Once the initial injection occurs in the distribution network, the biomethane commercialization would be restricted, at least at first, to that concession area. This is because it is currently considered impossible to reverse the flow and inject the gas into the transport network from a distribution network.

That is, for the biomethane achieves national projection through its injection into transport pipelines, bottlenecks of an operational nature need to be overcome.

Investments in gas compression to enable the injection of biomethane directly into transport pipelines would allow the formation of a nationwide market. But considering that the costs involved in these operational solutions can be huge and discourage market formation, other creative solutions need to be considered.

There is, for example, the possibility of carrying out Swap (exchange) of natural gas, both at the local grid, to connect different distribution networks, as well as at the national level, involving distribution networks and transport networks . But these solutions still run into legal and regulatory questions.

Despite recent advances, much is still to be done for Brazil to develop its full potential for biomethane production. For that, it is fundamental to prompt a more attractive sector for investments.

Category: Litigation

The succession regimes of the partners and spouses have been equalized after the trial of the Extraordinary Resource 878,694/MG by the Supreme Federal Court (STF), occurred in 2017, and the consequent declaration of unconstitutionality of the Article 1,790 of the Civil Code, which dealt exclusively with the succession rights of the partner.

Fixed by the Supreme Court the thesis for the Theme 809, with general repercussion, the application of the Article 1,829 of the Civil Code, which provides for the order of inheritance rights for both spouses and partners. The Superior Court, however, did not indicate whether the article would be the only one applicable to the companions or whether the equivalence of stable union to marriage would be extendable to the other provisions, that is, for all succession purposes.

Therefore, the question arose whether the Article 1,845 of the Civil Code, which defines which heirs are needed, should also be applied to the companion. If so, they would join descendants, ascendants and spouses in a special class of heirs, to whom it belongs, the legitimate part, that is, to them is mandatorily destined half of the assets of the inheritance. The question has divided the scholars.

On the one hand, some argue that the equivalence between succession regimes is not absolute, with the exception of the application of Article 1,845. By this understanding, the companion would not have been elevated to the status of necessary heir, since, in the case of a restrictive rule of rights, an extensive interpretation would not be possible. The article would have a restricted list and only the law could expand its scope.

This position is defended by Rolf Madaleno and Mario Luiz Delgado, who also states that it is not up to the doctrine or jurisprudence to regulate stable union and attribute to it the effects of conjugal society, thus transforming stable union into a forced marriage. They are legally different institutes, with different legal natures by express legal determination, and it is not possible for the judiciary to make the legislator's times on the matter.

On the other hand, renowned jurists such as Flávio Tartuce, Zeno Veloso and Giselda Hironaka, representatives of the school of constitutional civil law, advocate the inclusion of the companion in the list of necessary heirs, given the succession allocated with the decision of the Supreme Court, mainly considering the equalization of the different family entities, present in the Federal Constitution, in accordance with its Article 226.

Despite the intense doctrinal debate, based on the recognition expressed by the Third Panel of the Superior Court of Justice (STJ), in judgment of 2018, that the companion would be necessary heiress,^[1] our courts have applied the full inheritance equalization of the partners to the spouses, even though there was no position of the higher courts in Repetitive Regimen – it is not, therefore, a binding understanding.

However, in June of this year, the Court of Justice of Rio Grande do Sul decided to exclude the companion from sharing in a separation of property pact.^[2] This is an action filed by the companion against the daughters of the deceased to annul the sharing held, in which she would not have been contemplated as the necessary heiress.

In his vote, the rapporteur judge states that the deceased would have formalized a private contract of stable union with established regime of absolute separation of assets in 2014, with no evidence of inability of the parties to carry out the act, which would be valid for all legal purposes.

He then recalls that the effects of the Supreme Court's decision for the unconstitutionality of Article 1,790 of the Civil Code were modulated. The understanding would only apply to judicial probate without the  decision reaching res judicata and extrajudicial probate in which there was no public deed.

Considering that the death occurred in 2015 and the public deed was drawn up in 2014, the effects of the Decision of the Supreme Court of 2017 would not go back to the case. It would not be up, therefore, to speak of equalization of the companion to the spouse for inheritance purposes.

Based on these arguments, that Court reformed the judgment and upturned the appeal, to consider valid the deed regarding probate and sharing assets that excluded the companion as the necessary heiress.

Mario Delgado, commenting on this judgment, indicates that this is the first decision that expressly mentions the fact that the companions are not necessary reciprocal heirs, which may be relevant for other cases.

However, as published article by the Brazilian Institute of Family Law (IBFDAM), Delgado also points out that: "However, the surviving companion, in this specific case, is not a necessary heir, not because of the regime of assets of absolute separation, but because the Supreme Court did not want to ensure this status to the companion, as was clear in the judgment of the declaration embargoes in RE 878.694".

It is perceived, therefore, that the issue of the companion as a necessary heir is far from unanimous, which reinforces the importance of giving adequate treatment to this type of relationship in wealth and succession planning, so that there is full understanding and discernment about the issue, its consequences and the legal uncertainty that still permeates the theme.

Sources:

MADALENO, Rolf. Legitimate Succession. GEN Group, 2020.

GONÇALVES, Carlos R. Brazilian civil law - Succession law - v 7. Saraiva Publishing House, 2021.

TARTUCE, Flavius. Civil Law - Succession Law - v. 6. GEN Group, 2021.

^[1] STJ, REsp 1.357.117/MG, 3rd Class, rel. min. Ricardo Villas Bôas Cueva, j. 13.03.2018, DJe 26.03.2018

^[2] Civil Appeal 50002762120178210088, Eighth Civil Chamber, Court of Justice of RS, rapporteur: Mauro Caum Gonçalves, Tried: 30-06-2022

Category: Digital Law

In the week that celebrates two years of its creation, the Brazilian National Data Protection Authority (ANPD) published a new agenda for the period 2023 and 2024, making public the regulatory planning developed by the municipality, now autonomous and independent of the federal government. The ANPD Regulatory Agenda presents the actions and measures understood as priorities in the entity's scope for the next biennium and is a continuation of the previous agenda, which ends and at the end of 2022.

The document is considered a planning tool that aims to give more transparency and give more predictability to the regulatory process of the municipality. Public consultations and the analysis made by the ANPD raised the main points that should be included in the agenda for discussion. The document details the deadline of the regulatory process and how the matter will be handled: whether by resolution, good practice guide or ordinance.

HISTORIC

In January 2021, the ANPD issued its first Regulatory Agenda with the objective of indicating which topics related to the General Law on The Protection of Personal Data (LGPD) would be highlighted in the sphere of action of the municipality during its first two years of activity.

In the first version, the Regulatory Agenda listed ten priority points, categorized into three phases. It can be said that the ANPD valued an orientative posture when establishing as a priority the elaboration of resolutions, frameworks, protocols and guides to guide the beginning of the functioning of the authority in the supervision and protection of personal data and privacy of holders.

Such an agenda would bring greater legal certainty in the orientation of business models that, with the LGPD, began to address new security measures, in line with rights associated with the guarantee of privacy and data protection.

Since the publication of the LGPD, the discussion on the right to privacy and protection of personal data of data subjects has come to have great attention from the three powers. So much so that, in 2022, Article 5 of the Federal Constitution came to have a new wording, including among the fundamental rights the right to the protection of personal data.

Since then, the ANPD's performance continues at an accelerated pace, based on its Regulatory Agenda as guidance to future points of attention and obtaining subsidies for regulation by the municipality: all items of the Regulatory Agenda for the biennium 2021-2022 were initiated within the established deadline.

However, several initiatives brought in the Agenda 2021-2022 were not completed on time: some points submitted to consultation by the ANPD did not advance in consolidating an understanding by the authority. This is the case of the determination of the dosimetry of the penalty and sanctions applied despite violations of the LGPD, definitions such as high-risk treatment, mentioned in the Regulation that makes the application of the LGPD more flexible to small agents, and specifications involving the reporting of incidents and time of notification to the authority.

THE NEW REGULATORY AGENDA

The priority attention points detailed by the ANPD in the Regulatory Agenda 2021-2022 and that have not yet resulted in determinations published by the municipality will now make up Phase 1 of the new agenda, and the 12 items listed in this category will continue to be developed as a priority by the authority. In addition to the points listed in phase 1, eight more items began to include the regulatory planning of the ANPD:

• Data sharing by the government – Provided for in Articles 26 and 27 of the LGPD, the sharing of data between private entities and the public authorities will be the subject of studies to determine procedures to be adopted by agents, as well as transparency parameters on the disclosure of established agreements.
• Processing of personal data of children and adolescents – Although the authority has already conducted a preliminary study on the subject, the new study aims to include analysis of impacts on internet applications and online platforms in the protection of data from minors, expanding the research approach on top of the work already developed.
• Guidelines for the National Policy for the Protection of Personal Data and Privacy – The policy should involve several other projects in the field of public policies, encompassing all actors of the data protection ecosystem and management plans already developed in other systems, such as the Digital Strategy, the National IoT Plan, etc.
• Regulation of criteria for recognition and dissemination of rules of good practice and governance – As part of a work of constant updating, measures of good practice and information security that guide the internal organization of the parent companies and / or data operators should always be reviewed to consider changes in the technological scenario and business models. The regulation will serve as the anpd's recognition of standards of best practices in governance.
• Sensitive personal data: biometric data – The collection of biometrics should receive greater attention from the authority, on a guiding point, regarding the legitimacy of its collection and the security of the holder.
• Security, technical and administrative measures - In line with Article 46(1) of the LGPD, the authority plans to provide for minimum technical safety standards considering the nature of the information processed and the state of technology available for processing agents to ensure the protection of personal data from unauthorized access or situations of inappropriate or unlawful processing of data.
• Artificial Intelligence (AI) - In view of the complexity of the theme addressed in Article 20 of the LGPD, the authority seeks to develop documents and guidance to data subjects for the exercise of their rights in requesting review of automated decisions, in addition to serving as a basis for other rules that discipline the AI system.
• Conduct Adjustment Term (TAC) - As part of the ANPD's review process, the TAC will be an instrument for mediating proposals in sanctioning proceedings promoted by the authority, in any investigations of illicit acts committed under the LGPD.

FIRST CONCLUSIONS

The publication of the new Regulatory Agenda for the next two years reinforces the ANPD's ongoing effort to provide more predictability to the regulatory process and maintain transparency as one of its pillars of action.

Although the new agenda follows the discussion of the themes of the last biennium, which corroborates the orientation posture adopted by the ANPD, it can be expected that the coming years will be a transition to authority. This is because some of the themes based on the new Regulatory Agenda, such as Fines, rights of holders, incident reporting and impact reports, indicate that the ANPD will highlight the supervision of the LGPD and possibly adopt a coercive stance in a more emphatic way.

Category: Litigation

The use of consensual methods – such as negotiation, conciliation, mediation, arbitration and dispute boards – it is increasingly appropriate to resolve and prevent disputes, given the congestion of demands in the judiciary – which often lags more slowly than guarantees the realization of rights.

The adoption of these methods has been recommended and even stimulated by the Judiciary itself,^[1] by the Legislative Power^[2] and the National Council of Justice (CNJ)^[3] as the first and best option for conflict resolution.

Its use gives greater efficiency, helps to reduce the number of legal disputes in the process, unburdening the judiciary, which, in this way, can hold on to conflicts in which litigation persists even after attempts at conciliation or whose judicial assessment is mandatory.

The use of these methods, however, is not a consensus. The culture of litigation and judicialization so deeply rooted in our society is one of the main obstacles. The view that a third party, impartial, with decision-making power over the conflict, - the judge –, would be the only one capable of ensuring a "fair decision" and guarantees the balance between the parties is still very strong.

This idea often departs from false premises, because not always a decision given by a third party promotes the pacification of the conflict. It often does not even serve the interests of those involved in the dispute.

In this sense, there are several instruments that can be used to make consensual methods achieve an appropriate result that accommodates the interests involved. The representation of both parties by lawyer and judicial approval of an agreement concluded are examples of these tools.

In the case of representation by lawyer, it should be considered that the posture of this professional in an extrajudicial negotiation differs greatly from that expressed before a court, where the lawyer assumes a more combative stance.

In an out-of-court negotiation, the parties are protagonists of their own interests. The lawyer should be more collaborative and provide legal advice to accommodate the interests at stake until they reach a consensus.

Lawyers, in this situation, should seek to establish a more empathetic, respectful and productive dialogue, in order to create an environment that both parties are able to expose their emotions, present their interests clearly and, in the end, reach an agreement.

In this sense, it is possible to stipulate that the main attributions of the lawyer in the application of a consensual method are:

• indicate the most appropriate negotiation method for the situation.
• understand the real interests and needs of the client.
• ensure that there are no illegalities in the procedure.
• ensure the principles of good faith, isonomy between the parties, autonomy of the parties, among others.
• provide the client with all the necessary information so that his interests are preserved, clarifying any doubts throughout the procedure; and
• contribute to the decision making, helping the client to reach an informed, conscious and favorable solution for both parties.

Therefore, it is perceived that lawyers not only can but should work to alleviate any imbalances between the parties, arising from social, legal or even information asymmetry. The parties must search and hire a qualified lawyer with experience in consensual methods, otherwise the procedure will end up being misplaced.

With regard to the submission of the out-of-court agreement for the approval of the Judiciary, the only requirement is that the subject matter of the out-of-court agreement corresponds to available rights.

If the out-of-court agreement involves the interest of minors under 18 years and/or incapable, however, the document only produces legal effects after its approval by the Judiciary, because, in this case, there is the prior intervention of the Public Prosecutor's Office as custus legis, in accordance with the Article 178 of the Code of Civil Procedure.

As much as judicial approval is not mandatory in relation to agreements that do not involve the interest of minors and/or incapacitated persons, in accordance with articles 487 and 515, III, of the Code of Civil Procedure, there is resolution of the merits in cases where the judge ratifies the transaction. Therefore, the judicial decision means the existence of res judicata and represents judicial enforcement, which brings greater legal certainty to the signatory parties, avoiding future questioning and the perpetuation of disputes.

In order to judicially ratify an out-of-court agreement, there is no need to have a previous procedure, it is enough to submit a simple petition, signed by the parties, represented by their respective lawyers, in the Judicial Centers for Dispute Settlement and Citizenship (“Cejuscs” in Brazil) or, in their absence, the local civil courts . This is a pre-procedural phase in which there is no dispute brought.

The agreements, in these cases, are submitted directly to the magistrate – except when it is mandatory the intervention of the Public Prosecutor –, who may or may not subpoena the parties to provide clarifications, analyze the formal aspects of the agreement and, finally, ratify it.

It is also worth adding that this procedure of judicial approvar, in general, lasts days or a few months, a short time when compared to the average time of a lawsuit – approximately five and a half years.^[4]

Brought that, the consensual methods and the use of the appropriate tools for each case allow to strengthen trust between the parties to the dispute in order to reach a beneficial, fast and efficient solution. It is an important resource that greatly contributes to avoid the bureaucratization of the judiciary, reaffirming the exercise of the citizenship by the parties.

^[1] Article 3 and Articles 165 to 175 of the Code of Civil Procedure.

^[2] Law 13.140/15 (Mediation Law).

^[3] Resolution 125/10 of the National Council of Justice, which created the Permanent Centers of Consensual Methods of Conflict Resolution, the Judicial Centers for Conflict Resolution and Citizenship and also standardized the training courses of the conciliator and mediator.

^[4] Justice in Numbers 2021. National Council of Justice (CNJ). Brasilia: CNJ, 2021.

Category: Environmental

On August 24, of this year, the Environmental Company of the State of São Paulo (Companhia Ambiental do Estado de São Paulo - Cetesb) issued Board Decision 081/2022/P, which updates the procedures to be observed mainly in the environmental licensing process. Following, on 5 September, it was issued the Board Decision 085/2022/P, which brought changes and inclusions to the former, expanding its applicability to other licensor administrative processes, such as those related to vegetation suppression authorizations, intervention in Permanent Environmental Protected Area (Área de Preservação Permanente - APP)license permit, among others.

Before the issuance of these two board decisions, the entrepreneur was guided by the Law 10.177/98, which regulates the administrative process within the state public administration. Considering, however, that this law establishes only general procedures, the board decisions have the purpose of disciplining details of the licensing processes that are carried out at Cetesb, according to their particularities.

Among others, the two decisions address parameters for the environmental licensing process in the state of São Paulo and establish competencies and attributions for specific sectors of the environmental agency in the evaluation of technical studies that support environmental licensing processes. In addition, they consolidate the obligation to sign an Environmental Recovery Commitment Term or signature and registration of the Green Area for Lot Preservation Responsibility Term, in cases involving authorization to intervene in the Permanent Environmental Protected Area and/or tree suppression authorization.

Another highlight is the fact that the board's decisions provide specific procedures related to the informatization of licensor processes, which were already applied by the environmental agency, but are not addressed by Law 10.177/98.

The board's decisions regulate that the environmental licensing process will begin with the request protocol (SD) or request of those interested in the Environmental Licensing Portal used by Cetesb and, just as before, after the application for granting of environmental license was filed, the documents are forwarded to the platform e-environment, where communications between the environmental agency and the person concerned occur.

As for communication to the entrepreneur, Article 9 of Decision of the Board 081/2022/P determines that notifications of procedural progress must be forwarded to the interested party by message within the electronic platform.

Deadline counting

In addition, Article 11 of The Board's Decision 081/2022/P, amended by Board Decision 085/2022/P, establishes that, for term counting purposes, the date of the notifications will be considered that of the confirmation of reading of the task contained in the "Communicate" or automatically the tenth consecutive day, after sending the message to the address registered on the electronic platform. Therefore, the same logic provided for in Article 5, § 3, of Law 11.419/06, which regulates electronic judicial process, applies.

Also concerning the deadlines, Article 3 of The Board's Decision 081/2022/P reinforces that the counting must occur in accordance with State Law 10.177/98, which establishes that the deadlines must be counted in calendar days, unless expressly provide otherwise, without interruption on Sundays or holidays. Article 11, § 1, clarifies that the deadlines must be counted with the exclusion of the day of the beginning and the inclusion of expiration date.

Regarding environmental licensing processes, Board Decision 081/2022/P provided a minor change in the deadline to file administrative answer in cases of denial of the application for environmental license.

Before, the environmental agency applied, by analogy with Article 101 of the State Decree 8,468/76, the 20-day answer period. The Decision of the Board 081/2022/P, however, clarifies that the period of 15 days is applicable to file administrative answer against the decision which refused the license, counted from the day which the interested party was notified by the rejection decision, as defined in article 44 of State Law 10.177/98.

If the decision which denied the administrative answer by the judgment authority is maintained, the interested party concerned shall also be given an administrative appeal within 15 days. The judgment authority of first instance may, within five days from the date of receipt of the case, reconsider its decision. There is no appeal against the decision given at second instance. The Decision of the Board 081/2022/P did not bring innovations on the deadlines established in State Law 10.177/98 in this sense.

Board Decision 081/2022/P also established that processes that remain paralyzed for more than 120 days awaiting action from the entrepreneur will be filed by Cetesb. It will be possible to request an extension of the deadline, provided that the request is submitted before the deadline.

The board's decisions can be seen as an advance in the modernization of licensor processes and environmental authorizations, as they aim to standardize the processing of administrative procedures conducted by Cetesb and provide greater clarity to entrepreneurs both in relation to the use of the online platform and the monitoring of the progress of cases and in relation to the deadlines to be observed.