Publications

Category: Environmental

Known as the Agro Law, the Law 13,986/20 provides in its Articles 7 and following the Rural Heritage in Affectation (PRA), a kind of guarantee of financing in agribusiness that allows the rural owner the segregation of rural property in its entirety or only in one or more fractions. The objective is to guarantee certain credit securities, including the Rural Producer's Ballot (CPR) and the Rural Real Estate Card (CIR).

The PRA is inspired by the existing equity allocation in real estate development and seeks to promote the financing of the rural sector as a credit aid mechanism. According to the explanaming memorandum Provisional Measure 897/19, which gave rise to the Agro Law, the PRA aims to "simplify and expand access to financial resources by rural property owners, and may even improve the conditions of negotiation in rural financing".

From an environmental point of view, the Agro Law establishes certain environmental obligations for the constitution of the PRA:

• Among the documents necessary for the registration of the PRA in the registration of the property, we highlight the registration of the property in the Rural Environmental Register (CAR), in accordance with the Law No. 12,651/12 (Article 12, item I, point "b");
• In case of constitution of the PRA on part of the rural property, the unaffected fraction must meet all environmental obligations provided for by law, including in relation to the affected area (Article 12, § 2º); and
• The PRA or its party linked to each CIR must comply with the provisions of environmental legislation (Article 22, § 2).

Although the law determines compliance with environmental standards for the constitution of the PRA, the institute still needs to be implemented to demonstrate its effectiveness, in the event of default of the debtor and consequent transfer of the affected area to the creditor.

This is because the Agro Law does not regulate responsibility for the environmental liabilities of the area. If environmental damage is found in the property or in its fraction destined for PRA, it is understood that the environmental liability will be automatically transferred to the new owner, by force of the obligation propter rem. That is, the obligation will be transferred along with the right of ownership to the new owner.

Pursuant to Article 2, § 2, of the Forest Code, Federal Law 12,651/12, the obligations provided by law are real in nature and are transmitted to the successor, of any nature, in the case of transfer of dominion or possession of the rural property.

The legal provision translates the concept of obligation propter rem to the extent that it provides for the obligation to maintain and restore permanent preservation areas and legal reserve to the owner, even if it was not the cause of environmental degradation.

In other words, the duty of repair and restoration stems from the right subject's position in relation to the thing. It is, therefore, an obligation originated from the thing, because of the thing. What establishes the obligation is not the conduct itself, but the actual subjective bond.

As highlighted above, since the Agro Law does not regulate the form of accountability for the existing environmental liability in the affected area – for example, any legal reserve deficit or permanent preservation areas that have not been preserved – the new owner will assume the said liability, based on the obligation propter rem, where that issue has not been the subject of prior agreement between the parties.

It is worth noting that the Law 11,101/05, which regulates judicial recovery, extrajudicial and bankruptcy of the entrepreneur and business society, has recently been amended by the Law 14,112/20, which included in Article 60, § 1, the prediction that the Isolated Productive Unit (UPI)^[1] shall be free from any burden and there shall be no succession of the bidder in the obligations of the debtor of any nature, including, but not exclusively, those of an environmental nature.

In such a case, the legislature made an exception to the propter rem in the UPI trespass. However, for the case of PRA, the Agro Law is not expressed in this sense. With this, nature propter rem environmental obligations related to the property involved in the PRA will remain.

^[1] UPI is provided for in Article 60 of Law 11,101/05, which provides that "if the approved judicial recovery plan involves judicial disposal of subsidiaries or production units isolated from the debtor, the judge will order its realization". In summary, UPI is an asset of the company that can be disposed of in isolation during the judicial recovery process, with the aim of preserving the development of the company's activities and also the payment of the total or part of the debts of the company in judicial recovery.

Category: Labor and employment

The Joint Recommendation TST 26/22 CSJT/GP, published on October 11, provides for the need to prioritize the processing of labor lawsuits, whose credit must be paid before the Court of Judicial Reorganization or Bankruptcy, for the prevalence of what was established and approved in the judicial reorganization, and for the promptness in the issuance of credit certificates, as per article 9 of Law 11.101/05 – Law of Judicial Reorganization and Bankruptcies.

The recommendation of the Superior Labor Court (TST) is extremely relevant and timely, especially regarding the need for judges to observe the rules defined in the judicial reorganization even after its closure.

After all, is it possible to affirm that the closure of the judicial reorganization entails the invalidity of the rules defined therein and entails the conclusion that the company under reorganization has become solvent? In our opinion, the answer is no.

This discussion has been contended in several labor lawsuits and, for some Labor judges, the rules defined in the judicial reorganization cease with its closure.

The main motivation in these decisions is the fact that, once the judicial reorganization is closed, the Labor Court must execute the credit arising from the labor lawsuit, and it is no longer necessary the issuance of the credit certificate of the labor lawsuit for the judicial reorganization, the involvement of the Civil Court, and the compliance with the criteria decided therein.

This understanding does not seem correct because the closure of the judicial reorganization, with the eventual reorganization of the company, does not mean that the judicial reorganization plan simply ceased to exist and that the company under reorganization has surplus funds.

It is important to emphasized that, precisely because the judicial reorganization plan existed, the company under reorganization was able to subsist and end the judicial reorganization lawsuit.

Furthermore, the closure of the judicial reorganization cannot be interpreted as the return of the financial health of the company under reorganization because the effects of the judicial reorganization plan are prolonged in time and remain reflected in the future, until all creditors involved in the judicial reorganization receive their credits, within the limits of what was defined in the judicial reorganization plan.

As with any legal transaction, the judicial reorganization plan is binding on all the parties involved within the term and in the form defined upon its approval.

The incidence of the judicial recovery plan on a labor credit is tied to its generating fact. If it is prior to the approval of the judicial reorganization, there is no doubt as to its subjection to the definitions established therein, even if the labor lawsuit is filed after the closure of the judicial reorganization.

Therefore, the Labor Court cannot simply ignore the existence of a judicial reorganization plan because it is closed. It is necessary that its content and that of the decisions given in the judicial reorganization are analyzed, understood, and applied by the Labor Court when judging labor lawsuits that submit to labor relations prior to the date of the approval of the judicial reorganization.

For this reason, the pronouncement of the TST was essential for jurisdictions seeking compliance with the constitutional principles of legal certainty and the reasonable duration of the lawsuits.

Among other measures, the president of the TST and the Superior Council of Labor Justice (CSJT) recommend that the parameters established in the judicial recovery plan approved in the file of the lawsuit in which the judicial, extrajudicial or bankruptcy reorganization, even if already closed, including in the hypotheses of the appearance of labor lawsuits after the closure, should be observed and applied when the generating event pre-process of judicial recovery:

• 3. In the event of the emergence of labor lawsuits after the complete closure of the judicial reorganization lawsuit, out-of-court and bankruptcy of the entrepreneur and the business company, in the name of good faith and the effectiveness of Law No. 11,101/2005, the parameters set out in the approved reorganization plan must be observed and applied in the file of the lawsuits in which the judicial, extrajudicial or bankruptcy recovery has been processed, even if it has already ended.
• 4. The moment of the provision of services, as a generating fact, qualifies the subjection of labor lawsuits to the judicial reorganization plan, regardless of the date of filing of the respective labor lawsuit pursuant to Article 49 of Law No. 11,101/2005.

Although the recommendation is not binding or coercive, our expectation is that it will influence the judgments in the first and second instances, so that the Labor Court will have greater honor for what is decided by the Civil Justice, ensuring more legal certainty for those involved.

Category: Labor and employment

The promotion of trainee programs aimed at black people and minorities is an innovative initiative increasingly adopted by companies that aim to promote diversity and social inclusion. The legality or not of such action, however, has generated doubts.

The uncertainty of some is related to the fact that such programs are intended exclusively for a specific group of workers, which would supposedly exclude the rest.

However, the target audience of such programs are people who, for a long time, due to the social historical context, were on the margins of the labor market, subject to discrimination by race, gender, social condition, among others, which prevented them from having access to equal employment opportunities.

It is a group of people who faced, and still face, difficulty in inserting into the labor market due to social and educational obstacles and, even after their insertion, they are still not at an equal level with others. This is what studies published by the Insper – Institute of Education and Research^[1] and by the IBGE - Brazilian Institute of Geography and Statistics^[2] on the huge gender and race disparity in wages paid in the labor market in Brazil.

Of the 12 million Brazilians unemployed in the first quarter of 2022, 64% declared themselves black and brown. They represent, however, a share of 55.8% of the Brazilian population. Data from the Continuous National Household Sample Survey -PNAD, released by the IBGE and indicate a possible structural discrimination of black and brown people, despite the scenario of equal opportunities.

With regard to management positions, the gap is even greater: 68.6% are occupied by whites and only 29.9% by blacks or browns people, although, as already said, the black or brown population is the majority in Brazil.

In order to break this historical paradigm and change the social scenario, contributing to promote equal opportunities and greater diversity for future generations, the solution has been affirmative actions aimed at social inclusion. They have been instituted both by the public authorities, with quotas in universities and in public tenders, and by private initiative, with programs to promote a more inclusive work environment.

Such actions are supported in our legal system, because they are based on the principle of equality insculpied in Article 5 of the Constitution of the Federative Republic of Brazil.

In this respect, it is important to clarify that the equality advocated by our order is not formal and negative, that is, that in which the law should not establish any difference between individuals, treating everyone equally. In fact, it is a material equality (real or substantial), which recognizes the differences between individuals in hypotheses and social situations.

It is an equality that discriminates not to exclude, making use of aristotelian thought too much mentioned, in which equals must be treated equally and unequal ones unequally, to the extent of their inequalities. Thus, it is denoted that there is a guideline that authorizes the proposed "discrimination", to achieve the reverse effect of combating it.

In accordance with this understanding, the Judiciary has been positioned, in the situations that have been put to it for analysis, by the legality of such programs aimed at minorities and sustained their validity. As is the case in the judgment of the ADPF 186, in which the Supreme Federal Court -STF considered the quotas constitutional as a policy of affirmative action in the system of access to the public university.

In the same sense, in October 2020, the Supreme Court, in judging the ADPF 738, affirmed the constitutionality of positive measure instituted by the Superior Electoral Court-TSE, to determine the immediate application of incentives to applications of black people, in accordance with the exact terms of the TSE's response to Consultation 600306-47.

More recently, in the public civil action file, the respective Judge recognized the validity of an institution of an exclusive trainee program for black people, with the substitute Labor Judge, Laura Ramos Morais, of the 15th Labor Court of Brasilia/DF, affirming that such a program is not discriminatory: "On the contrary, it demonstrates an initiative for social inclusion and promotion of equal opportunities arising from the employer's social responsibility,  pursuant to Art. 5, XXIII, and Art. 170, III, of the Federal Constitution, and is duly authorized by Article 39 of Law 12,288/2010".

Thus, in our point view, it is fully lawful to create affirmative actions by the private initiative in order to enable conditions of equity and progress of groups of people who have been excluded due to discrimination by race, gender and other related forms of intolerance. Such measures shall not be considered discriminatory.

^[1] Available in https://www.insper.edu.br/wp-content/uploads/2020/07/Policy-Paper-45.pdf 

^[2] Available in https://biblioteca.ibge.gov.br/visualizacao/livros/liv101681_informativo.pdf

Category: Labor and employment

The World Cup and the search of the Brazilian national team for the sixth championship begin in November.. As it is well known, besides being the most practiced sport, football generates a great economic and cultural impact in the country.

According to the match schedule, Brazil will play their first three games of the group stage on weekdays, which has raised the question about how the workday will be like during the games.

Initially, it is necessary to observe whether business activity is essential or not. If it is, the company should evaluate the possibility of setting a scale between employees during the hours of the games, if feasible. If not, the company will not be able to release the employee to watch the games.

Whatever the company's activity, it is important to emphasize that it is not obligated to release employees to follow the Brazilian national team matches, since there is no legislation that declaring these days holidays or days-off. In case of unjustified absence, therefore, the payroll discount and the application of other appropriate penalties are allowed.

However, in view of the great cultural impact of the event, the company can choose to release its employees for the period of the game or for the day. In this case, there are alternatives provided for by law that guarantee greater legal security for the parties.

Journey compensation

Labor law authorizes the negotiation of an individual agreement between employee and employer, verbal or written, for the compensation of the workday, provided that the compensation occurs within the same month.

Although it is possible to agree to this compensation system verbally, it would be recommendable to formalize the terms of this agreement in writing, detailing the rules and how compensation will occur.

Bank of hours

If the company already has bank of hours system in place, the period granted to employees to watch the games can be offset. This can be done by deducting any positive balance that the employee may have or registering negative balance for the employee to compensate later.

We remind you that the legislation provides two hypotheses for the bank of hours: through individual agreement or collective bargaining with the union.

• Individual agreement: implementation of bank of hours through an individual written agreement between employee and employer, provided that compensation occurs within a maximum period of six months.

• Collective agreement or collective bargaining agreement: implementation of a bank of hours through a collective agreement with the union, in which the conditions for release during the games will be agreed, provided that the compensation occurs within a maximum period of one year.

In addition to these hypotheses, if the compensation of hours does not occur within the same month and the company does not have a bank of hours system, it is possible to negotiate an agreement with the union to compensate the days or hours of employees, specifically for the period of the games of the Brazilian national team, ensuring greater security for the parties.

It is also possible that the company, by mere liberality, dismisses employees during the games and refrain from any salary discount.

In either case, the employee's release may be partial, i.e. only during the period of the game, and not necessarily all day.

It is essential that the company organizes such procedures in advance, aligning the best strategy and ensuring clear and open communication with its employees.

The Company must evaluate and adopt the alternative provided by law in advance to allow its employees to watch the games of the Brazilian national team without negatively impacting the workday and salary.

The evaluation and adoption of the best alternative for the company’s needs shall guarantee a higher degree of legal security, prevent undesired questioning, and mitigate potential risks related to the release of employees during the Brazilian national team World Cup matches.

Category: Litigation

The Second Section of the Superior Court of Justice (STJ) should soon resume the trial of Special Appeal 1.964.067/ES, whose matter refers to the intention of The Usiminas Pension Society — successor of the Cosipa Social Security Foundation (Femco) — to alter the hitherto peaceful understanding of that collegiate body in the sense that there would be responsibility of the fund for the payment of the retirement complementation benefit plan to former employees of the bankrupt Companhia Ferro e Aço de  Victoria (Cofavi).

There is great expectation in relation to the case in view of the possibility of changing the understanding previously signed by the Second Section in the judgment of REsp 1.248.975/ES, when the vote of Minister Raul Araújo prevailed to fix the responsibility of the social security entity "for the payment, contracted in the respective benefit plan, of complementation of retirement due to participants/assisted,  former employees of sponsor Cofavi, retired on a date prior to the termination of the adhering agreement, in March 1996 even after the bankruptcy of Cofavi, noting the impossibility of using the assets belonging to the Femco/Cosipa fund when, in the ordinary instance, the absence of solidarity between the funds is recognized."

Furthermore, it is expected that the thesis is fixed on the existence, or not, of solidarity between the submasses[1] of the same supplementary pension plan – since, in the previous judgment, the Supreme Court referred to ordinary authorities the competence for a case-by-case analysis of the subject – in order to ensure legal certainty, which did not occur.

The controversy began with the investigation of a collection action by a former Cofavi employee – who entered into an agreement to support Femco, already existing at the time and maintained by the employees of a diverse company, Companhia Siderúrgica Paulista (Cosipa) – in the face of said pension fund.

The author understood that the bankruptcy of his employer/sponsor would not affect the receipt of the agreed benefit, once the necessary contributions were made until Cofavi was excluded from the plan by decision of the regulatory body. That is, the author intends to receive a lifetime pension due to his contribution period, regardless of the bankruptcy of Cofavi and, consequently, the end of his contributions.

In turn, The Usiminas Pension System argues that the payment of supplementation depends on the contribution of the participants and sponsors in the form of Art. 19 of LC 109/2001,[2] since the entity has no equity and is organized in the form of a non-profit foundation.[3]

A logical consequence is that, if Cofavi ceased the transfer of the contribution of its employees, the financial health of the benefit plan was impaired by the absence of prior costing, leaving it impossible to pay the retirement in view of the non-compliance with the obligations of the sponsor. Thus, the former employees of Cofavi would be entitled only to receive the amounts arising from the liquidation of the specific fund of the bankrupt company.

This is because, according to the entity, there is no solidarity between the plans directed to the employees of each company. Thus, each submass must be in the assets of its respective benefit plan, under penalty of illegally reaching the assets formed by third parties unrelated to the situation that gave rise to the harmfulness indicated by the author (bankruptcy of the sponsor).

The closed complementary pension entity (EFPC) faced unfavorable positions in the first and second instance mainly due to the position already signed by the Second Section in the judgment of REsp 1.248.975/ES.[4]

At the time, the STJ judged the matter on a case-by-case basis, fixing the right of former Cofavi employees retired at the time before the denunciation of the plan (March 1996) to receive the benefit, provided that it recognized the solidarity of the submasses by ordinary bodies. In other words, the controversy over the existence of such solidarity was not resolved in order to guarantee legal certainty.

In this context, REsp 1,964,067/ES was pointed out as a possible indicator of overruling, mainly because, after the judgment of the aforementioned special appeal, "188 appeals were filed on the same matter before the Supreme Court, of which 142 had analysis of the respective ministers and/or by the 3rd and 45th Classes, all (100%) favorable to retirees".

There is no precedent formed in favor of the EFPC even though the Fourth Class has already witnessed a divergent position on the part of Minister Isabel Gallotti,[5] in the same way that the Third Panel diverged from the 2nd Section in appeal judgment with the same background matter.[6]

[1] Pursuant to Article 7 of CNPC Resolution No. 41 of June 9, 2021: "Submast is understood as a group of participants or assisted linked to a benefit plan and having an identity of homogeneous rights and obligations among themselves, but heterogeneous in relation to the other participants and assisted thereof plan".

[2] Art. 19. The contributions destined to the constitution of reserves will have the purpose of providing the payment of social security benefits, in reference to the specificities provided for in this Complementary Law.

[3] Art. 31. Closed entities are those accessible, in the manner regulated by the regulatory and supervisory body, exclusively:

(...)

• 1^orClosed entities will be organized in the form of a foundation or civil society, non-profit.

[6] "1. Until the extrajudicial settlement of the private pension plan addressed to employees of Companhia Ferro e Aço de Vitória - COFAVI, the Cosipa Social Security Foundation – Femco, current Usiminas Pension, is responsible for the payment, contracted in the respective benefit plan, of complementation of retirement due to participants/assisted, former employees of sponsor Cofavi, retired on a date prior to the denunciation of the agreement of the  in March 1996 even after the bankruptcy of Cofavi, noting the impossibility of using the assets belonging to the Femco/Cosipa fund when, in the ordinary instance, the absence of solidarity between the funds is recognized."

Category: Digital Law

The Consumer Policy Committee of the Organization for Economic Cooperation and Development (OECD) and its Working Party Consumer Product Safety carried out research with marketplaces and government authorities from several countries – including the National Consumer Secretariat (Senacon) in Brazil.^[1]

The idea was to understand and bring together practices adopted by online consumer protection products and services marketing ecosystems, to better explore their business models, and to identify common issues that in some way interfere with or may interfere with consumer protection in marketplaces. The study is available and is an important source of best practices adopted to mitigate accountability risks.

Generally speaking, the Marketplace is characterized as a virtual space for buying and selling products that usually includes partnerships with other retailers, to create a mall virtual. Each partner uses the space as their product ad showcase, enabling consumers to access a variety of advertisers on the same portal.

Confirming what we observe in marketplaces in the country, the research identifies that the main nuisances of consumers are associated with:

• advertising practices;
• Blows;
• problems in dispute resolution;
• counterfeit products;
• unsafe products;^[2]
• unfair terms and conditions;
• delays in receiving goods; and
• fake ratings and comments.

These practices need to be addressed to reduce the legal and reputational risks arising from them.

Most of these situations, according to global research, occur due to problems faced by consumers with:

• delivery, as the products are delivered late or are not even shipped;
• products other than the photo used in the ad; and
• problems involving payments or fraud of a financial nature.

The research also confirms one of the great difficulties encountered by marketplaces: the relationship with third-party sellers (commonly referred to as Sellers), who advertise their products on the platform.

According to the study, the majority of marketplaces instructs Sellers even before the first announcement, as well as providing support and even training on how to improve customer service. This care aims to strengthen the relationship with Sellers and, in some way, try to standardize the service provided, to avoid inappropriate or irregular conduct (such as fraud).

The research points out as a set of legal practices recommended:

• production of robust documents for Sellers, indicating what can and cannot be done (such as making the announcements, what are the appropriate levels of logistics, clear separation of responsibilities, etc.);
• adoption of procedures for due diligences rigorous participation of the Sellers platforms and the improvement of other internal governance mechanisms;
• conducting training and delivery of assertive and functional communication materials in order to reinforce sellers' awareness of risks;
• development of mechanisms (including through algorithms) that are accurate in classifying Sellers, that may reflect the credibility of sellers and allow the identification of deviations of pattern and possible risks;
• a robust structure of solutions for discussions and divergences that includes consumers and sellers, to reduce conflicts and mitigate situations that may generate lawsuits.

The study also sought to understand how government authorities have been cooperating with marketplaces to reinforce consumer protection, the difficulties faced in relation to the theme, what engagement activities have been done between the parties to educate and guide, what are the recent initiatives of monitoring activities, market studies and legal enforcement actions.

Among the answers, some points stand out:

• most participating countries developed educational guidance material for buying and selling online, aiming to guide sellers and consumers;
• most participating countries carried out specific monitoring and regulatory activities involving online markets;
• several participating countries have reported that they have implemented or considered implementing legislative reforms on the subject.

The research was attended by Senacon, which highlighted some Brazilian initiatives to improve conflict solutions involving consumers and marketplaces:

• creation of the National Council to Combat Piracy, which underheads anti-piracy initiatives in Brazil and is responsible for the preparation and maintenance of the National Plan to Combat Piracy – the council has a specific working group for the treatment of the subject of piracy in the digital sphere, especially in e-commerce;
• preparation, in the context of the National Plan to Combat Piracy, of the E-Commerce Good PracticeS Booklet, with indications of conduct scans to be adopted by marketplaces to safeguard and guarantee consumer rights, especially with regard to the prevention of the marketing of products;
• creation, in line with the National Plan to Combat Piracy, the Guide to Good Practices and guidelines for the implementation of measures to combat piracy by the public authorities, rightholders, associations and payment service providers, with the aim of hindering or hindering the receipt of revenue stemming from the sale of goods, provisions and services, in violation of intellectual property; and
• establishment of the gov.br, which, although not entirely directed at consumer relations with marketplaces, is gaining more and more traction among users of these platforms as a method of dispute resolution.

In addition, the study mentioned the initiative of the Court of Justice of São Paulo on the creation of the seal "Justice-Friendly Company",  that known marketplaces in Brazil have been able to obtain.

These practices and initiatives should be closely monitored by the marketplaces brazilians, so that they are always aware of the best initiatives pointed out by the authorities and potential benefits provided by their adoption.

The issue is extremely important and has become even more relevant with the digitisation of markets and the platform economy. In addition to risk awareness, it is essential to adopt good practices that prove diligence in consumer protection and effectiveness in mitigating risks.

^[1] In Brazil, the research also had the participation of Inmetro and Anatel.

^[2] "unsafe products" means those that pose risks (to the health or safety of consumers) at levels higher than those reasonably expected in view of the very nature of that product.