Publications

Category: Litigation

The right to be forgotten – which involves the withdrawal of personal information from websites and mass media – is a contemporary theme and the subject of intense debate in the world legal stage. It bumps into several prerogatives provided for in the Brazilian legal system and was recently considered incompatible with the Federal Constitution by the Supreme Federal Court (STF) – Theme 786.^[1]

Currently, the internet is present in people's daily lives in such a deep-rooted way that it is difficult to imagine that, until a few decades ago, research was done in encyclopedias, communication was mainly through telephone calls and news was broadcast basically in printed newspaper, radio or television.

For better or for worse, today we are one or a few clicks of any person and any information. For no other reason, much has been said about the Streisand effect and its implications for the right to be forgotten.

The expression arose in the United States after the lawsuit filed by actress and singer Barbra Streisand against photographer Kenneth Adelman of Pictopia agency, due to the disclosure of several aerial photographic records of the California coast on a website. In addition to compensation for moral damages for alleged violation of her privacy, Streisand required the removal of the satellite image of her residence, which was among the photographs disclosed.^[2]

Contrary to what the actress intended, the action ended up increasing its exposure. Before the lawsuit, the photo of her residence had been accessed only six times – and, according to media reports, of the six accesses, two were made by her lawyers. With the notoriety that the case gained after the lawsuit was filed, the image went viral, and the site received approximately 420,000 hits in a month.^[3]

In this context, the Streisand effect "(...) can be understood, in brief synthesis, as the situation in which, from an attempt to censor certain information or artistic expression of the market of ideas, the initiative results in the vast replication of said content, usually through media and websites, due to the dynamism in the exchange of information between its users".^[4]

In Brazil, several cases suffered the Streisand effect, which called into question the effectiveness of the right to be forgotten even before its unconstitutionality was declared by the Supreme Federal Court.

In June 2012, the Superior Court of Justice (STJ), under the rapporteurship of Minister Nancy Andrighi, concluded the trial of the Special Feature 1,316,921/RJ, brought by Google Brasil Internet Ltda. (Google) against the presenter Xuxa Meneghel. The purpose of the appeal was to analyze the suitability or not of imposing the obligation to restrict the results obtained in searches in google's system that associated the presenter with pedophilia, for her performance in the film “Amor Estranho Amor” (1982).^[5]

According to the STJ, considering the existing consumer relationship between users and research providers, governed by the Law 8,078/90 (Consumer Protection Code - CDC),^[6] Google's liability should be limited to the nature of the activity developed, intended exclusively to facilitate the location of information, regardless of its content.

Thus, the court recognized that it is not feasible to impose a discretionary judgment on the research providers and force them to exclude the results obtained in searches conducted with a certain word, as intended by the presenter. To reach this understanding, the ministers considered:

• the infeasibility of establishing objective criteria of limitations to research – carried out by a system whose reasoning capacity is limited when compared to the creativity of the human being to circumvent any restrictions;
• that eventual censorship would prevent access to any website that mentions the forbidden term (or expression), regardless of its legal/offensive content or not – which would consequently repress the constitutional right to information.

However, it is very common to have greater repercussion on social networks and websites when the person seeks judicial protection and confidentiality, in a clear unfolding of the Streisand effect. In the tool Google Trends, you can verify that the search for the terms that the presenter tried to deindex increased considerably during the month of the trial of the process (June 2012), passing the platform classification from 1 to 43 points.^[7]

In a more recent case (December 2019), when assessing the Complaint 38.201/SP, proposed by journalist Ulysses Campbell, author of the book “Suzane: assassina e manipuladora”,^[8] the Supreme Federal Court understood that the preliminary decision that suspended the publication, disclosure and commercialization of the unauthorized biography of Suzane Von Richtofen, sentenced for the murder of her parents, would offend the constitutional prerogative of freedom of expression under the negative bias.^[9]

At the time, Minister Alexandre de Moraes recorded that the fence to prior censorship, however, would not exempt the journalist from being liable for any offenses to the personality rights of the parricida generated with the publication of the literary work, guarded by the right to freedom of expression, this time, under the positive bias.

He also stated that there is no constitutional permissive that restricts freedom of expression in the negative sense, to preventively limit certain discussions to become public, which would characterize prior censorship, because what the Federal Constitution protects, in fact, is freedom of expression in the positive sense, allowing the citizen to manifest in the way he wants.

In this regard, the remark made by the minister in his vote, in which he states that "[the] fundamental right to freedom of expression, therefore, is directed not only to protect supposedly true, admirable or conventional opinions, but also to those that are dubious, exaggerated, reprehensible, satirical, humorous, as well as those not shared by the majorities."^[10]

As occurred in the case of the presenter Xuxa, the repercussion of the judge caused it to increase the curiosity of the public in relation to the book. Just see that in the week of its debut (January 2020), were sold 769 copies of the biography Suzane Von Richtofen, a larger amount than other best sellers, as the novel by American Julia Quinn (614 copies),^[11] known worldwide for its collection of books The Bridgertons.

When analyzing these cases, it is noted that the censorship of results obtained from consultations made in search providers or publication of literary works not only finds an obstacle in the prerogatives enshrined in the Federal Constitution – in particular the right to information and freedoms of expression and the press – as any discussion about them by the actors involved can, for the sake of truth, contribute to a certain fact being even more remembered and discussed than it was initially, given the curiosity generated by its judicialization.

Lucas Faillace White Castle draws important parallel with what is done in England to undermine the Streisand effect. There, "who enters with an action claiming damages can require the judiciary not only the secrecy of justice, that is, not disclose the information contained in the process, but also the very disclosure that the process and secrecy exist, under penalty of crime of disobedience ('contempt of court')".^[12]

Although the Supreme Federal Court has understood that the right to be forgotten is incompatible with the Federal Constitution when its exercise is supported only in the passage of time, it is possible that the subject will be analyzed on a case-by-case parchment if any situations of excess or abuse are configured in the freedom of expression and information.

For instance, the Supreme Federal Court recently concluded the trial of the Special Feature 1,660,168/RJ, whose background was the analysis of the possibility of deindexing news that used the name of the party used in the results obtained in searches performed on certain providers.

When provoked by the Minister vice-president of the Supreme Court for possible judgment of retraction, due to the application of divergent understanding to Theme 786 of the Supreme Federal Court, Minister Marco Aurelio Bellizze pointed out that the decision given by the Third Panel of that Court was not contrary to Theme 786. The decision, in the case, kept the condemnation of certain search providers to install filters to unlink the name of a particular person (party appealed) of news about alleged fraud committed in public tender.

According to the rapporteur minister, the issue would have been "decided from the perspective of fundamental rights to privacy and privacy, as well as the protection of personal data, and not on the basis of the right to be forgotten". At the time, the minister differentiated the situation of non-disclosure of news from the prohibition of the publication of the name of the candidate of the public tender.

For all purposes, it is perceived that the Supreme Federal Court once again recognized the possibility of making Theme 786 more flexible and, in some way, safeguarding the right to be forgotten – even if analyzed from another perspective.

If this case-by-case analysis of the subject becomes a consolidated position, it will be up to the lawyers, given the absence of specific legislation, to work creatively and develop ways to overturn the Streisand effect in these exceptional situations as already occurs in England – in addition to the processing of cases under legal confidentiality – at the risk of not having practical results from any judgments that recognize the applicability of the right to be forgotten in the specific case.

^[1] "It is incompatible with the Federal Constitution the idea of a right to forgetfulness, thus understood as the power to prevent, due to the passage of time, the disclosure of truthful facts or data and lawfully obtained and published in the media - analog or digital. Any excess or abuse in the exercise of freedom of expression and information should be analyzed on a case-by-case basis, based on constitutional parameters, especially those relating to the protection of honor, image, privacy and personality in general, and the express and specific legal provisions in the criminal and civil spheres" (Leading Case Extraordinary Appeal 1.010.606/RJ, Full Court of the Supreme Court, rapporteur Minister Dias Toffoli, trial date 2.11.2021).

^[2] What is Streisand effect? Phenomenon viralizes 'secrets' of famous. Access on 8.1.2022.

^[3] The Streisand Effect: When censorship backfires. Access on 7.29.2022.

^[4] BECKER, Rodrigo Frantz (coord.). U.S. Supreme Court: historical cases. São Paulo: Grupo Almedina, 2022, E-book, p. 339.

^[5] For Luiz Fernando Marrey Moncau, this judgment does not deal with the right to forgetfulness, but about the deindexation of results by search engines (MONCAU, Luiz Fernando Marrey, Direito ao Esquecimento: entre a liberdade de expressão, a privacidade e a proteção de dados pessoais, São Paulo: Thomson Reuters Brazil, 2020, p. 340). However, for the purposes of this article and knowing the terminological discussions on the subject, the judgment will be addressed as a precedent related to the right to be forgotten.

^[6] Pursuant to Article 3, §2, of the CDC, "service is any activity provided in the consumer market, for remuneration, including those of a banking, financial, credit and security nature, except those arising from labor relations" (g.n.). In this sense, Minister Nancy Andrighi recorded in her vote that, although the activity carried out by Google is not directly remunerated by its users, "it is clear the existence of the so-called cross marketing – promotional action between products or services in which one of them, although not profitable in itself, provides gains arising from the sale of others. Although searches conducted via Google Search are free, the company sells advertising spaces on the site as well as preferences in the order of listing search results."

^[7] Google Trends. Access on8.1.2022.

^[8] Generally speaking, the work tells the story of Suzane Louise Von Richtofen, who was sentenced to 39 years in prison in closed regime for the murder of her parents (CAMPBELL, Ullisses. Suzane: assassina e manipuladora. 1st ed. São Paulo: Matrix, 2020).

^[9] According to lessons from Luis Pinto Ferreira (Comments to the Brazilian Constitution. São Paulo: Saraiva, 1989. v. 1, p. 68), cited by the rapporteur Minister, freedom of expression is protected by the CF in two respects: the positive, which aims to protect the outsourcing of the manifestation, and the negative, which turns to the "prohibition of censorship".

^[10] Complaint 38.201/SP, First Class of the Supreme Court, rapporteur min. Alexandre de Moraes, trial date 2.21.2020.

^[11] Unauthorized biography of Suzane von Richthofen reaches the list. Access on 8.1.2022

^[12] The Streisand effect. Access on 8.1.2022.

Category: Real estate

The ability to overcome and adapt face of adverse situations is part of human nature.. World War I and World War II, for example, triggered drastic transformations in society, with impacts on global geography, economy and politics.

These conflicts eventually drove revolutionary creations in the area of technology, such as radio and computer, and in health, case of penicillin. More recently, during the covid-19 pandemic, society experienced a devastating new situation that, due to intensity and lethality, has changed (and has been changed) the habits and claims of the general population.

In recent years, the world lives in the era of the shared economy, based on the appreciation of collaborative consumption and the sharing of services and goods. In the real estate field, even before the pandemic, it was already possible to notice changes in the profile of consumers, both the younger ones, who no longer wish to invest large amounts to achieve the (perhaps old) dream of home ownership, as the older ones, who break old social barriers to live alone and share new experiences in an advanced stage of life.

In fact, the gradual decrease in the square footage of the apartments launched is no accident and is an increasingly common situation in large cities. The reduction is due both to the scarcity of land in large urban centers and to the high cost of the square meter in better-located regions, as well as the good acceptance of the public, who are already used to living in small apartments and using more common spaces in condominiums.

In São Paulo, for example, it is possible to find offers of smaller and smaller apartments, aimed at a type of public interested in properties with more shared spaces of leisure and services, near urban centers, than by large apartments.

The Sao Paulo Zoning Law (Municipal Law No. 16.402/16), among other objectives, aimed to bring residential and commercial centers closer together, by increasing the supply of apartments closer to the public transport hubs, in areas further away from the urban center, precisely so that residents had more access to these services.

This urban movement seems to be in tune with the coliving, most recently practiced in Brazil, but already common and widespread in other parts of the world. The main objective is to share experiences and facilitate the concentration of housing, leisure and commerce in a single pole.

Born in the 1970s in Denmark, the then cohousing (characterized by individualized units around collective spaces) covered a neighborhood that sought to experience a certain sense of community, with spaces of coexistence and shared activities.

The idea was applied and adapted in the United States in the following decade and remained a viable option and in constant adaptation nowadays. In the concept of coliving, some spaces, usually living rooms, kitchen and laundry, of a single property are shared and there is a room for each resident.

Very confused with the university republics, the idea of coliving is to aggregate and give access to shared experiences, with conditions that probably would not be possible if the facilities were arranged in individual units. It is the concept of dividing to multiply.

Cities such as New York, London and São Paulo increasingly have residents interested in enjoying this sense of community in relation to housing, to be able to reside in trendy central regions (in New York, Staten Island; in London, Old Oak; and in São Paulo, Jardins, Higienópolis and Pinheiros) and have access to leisure and trade services concentrated in these areas,  with significant cost reduction.

In Brazil, the acceptance of coliving by the public also seems to grow. In May 2019, only 30% of Brazilians accepted the coliving as an option. By March 2020, this percentage was already 55% among Paulistanos.

With the pandemic, the use of offices, urban spaces and residential spaces has been significantly changed. The way the city is occupied has changed and, consequently, the habits of its citizens has changed as well. The model of the coliving was put in check, since it encourages the use of shared spaces, which makes it more difficult to maintain social distancing. Still, the proposal has been adapting and seeking consolidation and acceptance in the market.

In the legal field, the Federal Constitution guarantees housing as a social right, alongside rights such as leisure, transportation and security, concepts close to the characteristics of the coliving. However, similarly, the right to property is also guaranteed by the Constitution as an inviolable right.

The legal instrumentalisation of the coliving usually occurs through a standard lease agreement, governed by the Lease Law (Federal Law 8,245/91), with severe predictions regarding the obligation to respect the condominium convention and general rules of coexistence.

However, the model has no specific safeguard in law that deals with issues such as minimum length of stay, characteristics of residents, responsibility of each one before the condominium, limitation of activities, among others.

The lack of forecasting makes it difficult to apply the coliving in strictly residential buildings, which generally adopt a more conservative stance, especially depending on the profile of the residents of the coliving. In general, people who adopt this model of housing do not intend to establish residence on the site for very long periods, which generates wear and conflicts of interest among residents.

The discussion increases when trying to establish the limit of exercise to the right of ownership of the person who wishes to install a unit of coliving in a residential building, in which there are no other apartments that take the model. The difficulty can be due both to the disinterest of the owners and to the express prohibition (whose validity is questioned by those who seek the application of the model) in the condominium convention.

From the misstep of the law in the face of the rapid advance of technology and new business, the first debates about the validity of the coliving in the Brazilian legal system. The model faces resistance from the traditional rental system to the lease short stay (airbnb). It is also faced with the difficulty of acceptance by occupied condominiums – and concerned – with issues such as security, movement of people, turnover, profiles of residents and increased use of the common area.

While the pandemic seems to have been controlled and society begins to incorporate the cultural and social changes it brought, discussions about the coliving take shape in the judiciary.

On the one hand, Startups, investors and companies looking to develop and apply the shared economy into new (or perhaps not so new) business models. On the other, residents, liquidators and owners apprehensive about the major changes in the use of apartments and the common spaces of their properties in such a short time and, still, without clarity or well-defined rules of use, which can impact on the original design of the development as typical residential.

Thus, it is necessary to wait for the outcome of the first discussions in the Brazilian courts on the subject, including considering the apparent conflict between constitutional principles.

Only with the passage of time and the conduct of these judicial decisions will it be possible to assess whether the colivig it is a reality that came to stay in Brazil, which will possibly still require some flexibility and adjustments of norms, or if it will be necessary another leap of development to another legal model that meets the longings of a society that is experiencing a process of constant change and adaptation.

Category: M&A and private equity

Until the advent of Law 13.874/19 (Economic Freedom Law), there was much debate about the legal nature of investment funds and the extent of liability of their quotaholders for unsettled liabilities of these funds.

With the exception of real estate funds – the only type of investment fund that was regulated by specific law and which limited the liability of quotaholders^[1] – the majority doctrine, based on the regulations issued by the Brazilian Securities and Exchange Commission (CVM), understood that investment funds:

• presented a condominium nature (although covered with special characteristics that differentiated them from the civil condominium), without their own legal personality; and
• were subject – given the legislative gap on the limitation of liability of quotaholders (with the exception of real estate funds) – supplementarily to the rules on the general condominium. As a consequence, it was understood that the quotaholder was liable for all the fund’s unsettled liabilities (respected only its quota-share in the condominium).^[2]

With the enactment of the Economic Freedom Law, investment funds were finally regulated and included into the civil law (via the insertion of the new Chapter X in the Civil Code) and had their legal nature defined as a "condominium of a special nature". According to the new law, the rules of the general condominium set forth in Articles 1,314 and following of the Civil Code are not applicable to investment funds. The unlimited liability of the condominium members, therefore, was expressly excluded.

The law also expressly allowed the bylaws of an investment fund to provide for the limitation of the liability of a quotaholder (for liabilities of the fund) to the value of the quotas subscribed by that quotaholder^[3].

Currently, the draft of the CVM resolution which shall provide for the constitution, operation and disclosure of information of investment funds, as well as the provision of services to the funds, is under discussion. The same resolution will regulate the Economic Freedom Law and the outlines of the legal nature of investment funds and the limitation of liability of their quotaholders.

Without prejudice to this regulatory advance, which is still pending, it can be concluded that the liability of quotaholders is now regulated and may be limited.

The question that arises is: how will the judiciary interpret this limitation and what are the hypotheses in which it can be derogated so that creditors of an investment fund may access the equity of the quotaholders of that fund? Will the same arguments used for disregarding the legal personality of companies be valid? Will the rules on economic group joint and severe liability, used in labor matters, be applied? Or, furthermore, will subsidiary liability be applied in tax matters?

Liability of the quotaholder

Although the Economic Freedom Law has granted to the investment funds the nature of a condominium, the special characteristics of this condominium mean that quotaholders do not have the same prerogatives that condominium members have in relation to the common property, in particular to "use the property in accordance with its purpose, exercise all rights compatible with the indivisibility, claim it from third parties, defend its possession and alienate the respective ideal part or encumber it" (Art. 1,314).

Differently from what occurs in the civil condominium, the quotaholders of an investment fund only have rights over the equity fractions of the fund proportional to the investment made (represented by quotas), including the respective earnings, right of redemption and right to participate in the liquidation of the common equity.

The assets of the special condominium called fund are not, strictly speaking, direct assets of its quotaholders, nor are they available to be pledged to satisfy creditors of these quotaholders.

Accordingly, the quotas of an investment fund cannot be held liable for debts or liabilities of the investment fund itself, unless the fund's Bylaws do not limit the liability of the quotaholder.

Each quotaholder holds rights exclusively over the quotas representing the investment made by him/her for the achievement of the common equity of the fund, and, therefore, the quotas belonging to the other co-investors cannot be affected by debts incurred by a quotaholder.

STJ Decision

Recently, the Third Panel of the Superior Court of Justice (STJ) decided^[4] that investment funds may be subject to inverse disregard of legal personality if they are used to shield the assets of their quotaholders with the clear intention of harming creditors.

Despite the facts of the decision predate the enactment of the Economic Freedom Law, the decision reveals that the limitation of liability, even if established via Bylaws and now supported by law, will not be absolute, and there will be cases in which it may be relativized or derogated from.

The rules designed to protect the equity of the investor (quotaholder) shall lose applicability when there is unequivocal proof that the investment fund itself was constituted in an abusive manner, either with the intent to defraud creditors or to serve purposes that are not appropriate to the nature and objectives of investment funds. An example would be removing the assets of the fund (cash, receivables, real estate, shares) from the universe of assets available for pledge and, consequently, harming the creditors of a quotaholder.

This fraudulent intent is not related to the activities of the fund – which are conducted by professional service providers duly registered with CVM (as determined in CVM Instruction 555/14) – but rather to the interests of their quotaholders (individuals or legal entities), who use its umbrella to hide assets.

The STJ’s decision was rendered in this context. In the case under analysis, a private equity investment fund (FIP) had two companies from the same economic group as its quotaholders. Both – in view of the derisory value of the transfer of FIP quotas between them (extremely inconsistent with the market value) – acted with misuse of purpose and patrimonial confusion to hide the true wealth of the economic group to which they belong – with the clear intention of harming creditors.

That is, in view of the abuse of the entity's purpose and the absence of third parties (quotaholders) acting in good faith, it became possible to apply the inverse disregard of the legal personality of the quotaholders (in parallel with Art. 50, § 3, Civil Code), directly affecting the net equity of the FIP.

It seems, therefore, that the tendency is for the Judiciary to adopt the hypotheses of disregard of legal personality (in direct or inverse modalities) contained in Art. 50 of the Civil Code for similar abuse cases involving investment funds and their quotaholders. In view of the misuse of the investment vehicle, the rules applicable to the equity protection of quotaholders should not prevail, under penalty of emptying the characteristic purpose of the entity.

Cases of disregard of legal personality of invested companies of investment funds, which lead to liabilities of these companies being attributed to their partners, including investment funds, may also affect the quotaholders of these funds, especially under the arguments of "economic group" used in labor matters.

From the tax perspective, investment funds have been repeatedly subject to assessments by the Brazilian Federal Revenue Service. As a rule, the legislation attributed to the fund administrator the responsibility for the taxes levied on the income earned by the quotaholders or by the fund portfolio itself – in these cases, the administrator is the taxpayer of the tax obligation as the responsible party.

In this context, there are cases of assessment at the administrative level (Administrative Council of Tax Appeals - Carf) against the administrator of investment funds. With regard to quotaholders, there are also cases of assessments arising from abusive tax planning, as the one that involved the decision of STJ.

Based on these considerations, the contours of the liability of investment fund quotaholders will still depend on a more in-depth examination, by the Judiciary, of the concepts brought by the Economic Freedom Act and the CVM regulation that is yet to come.

^[1] Pursuant to item II of Art. 13 of Law 8,668/93, the quotaholder "II - is not personally liable for any legal or contractual obligation, in relation to the properties and undertakings that are part of the fund or of the administrator, except for the obligation to pay the full amount of the subscribed quotas".

^[2] Refer to Articles 1,315 and 1,320 of the Civil Code.

^[3] Refer to Article 1,368-D of the Civil Code.

^[4] Refer to the judgment of Special Appeal 1965982 - SP, of April 5, 2022.

Category: Environmental

The Supreme Court (STF) judged, on July 4 of this year, the Investigation of Non-compliance with Fundamental Precept 708 (ADPF 708), one of the actions that make up the so-called Green Agenda and deals with climate litigation, a theme of great importance in the current environmental jurisprudence.

ADPF 708 was filed in 2020 by several political parties on the grounds that the Union had been in compliance with climate and policy obligations related to the National Climate Change Fund (Climate Fund), created by Law 12.114/09 and mentioned in the National Climate Change Policy instituted by the Law 12.187/09.

In July of this year, the full court^[1] of the Supreme Court, by majority, with a vote against only the Minister Nunes Marques, upheld the action to:

• recognise that the Union is silent, as it has not fully allocated the resources of the Climate Fund for the year 2019;
• order the Union to cease to omit to operate the Climate Fund or allocate its resources; and
• prohibit the contingency of revenues that are part of the Climate Fund, setting the following judgment thesis: "The Executive Branch has a constitutional duty to make the resources of the Climate Fund work and allocate annually, for the purpose of mitigating climate change, and its contingency is being limited, due to the constitutional duty of protection of the environment (CF, art. 225), of international rights and commitments assumed by Brazil (CF, art. 5, para. 2), as well as the constitutional principle of separation of powers (CF, 2º c/c art. 9º, par. 2nd, LRF)".

In his vote, Minister Luiz Roberto Barroso, rapporteur of the case, acknowledged that the Union was omitted in the management of the Climate Fund, which constitutes a violation of the right to the balanced environment and the fulfillment of international commitments to which Brazil is a signatory. The Minister recognized the constitutional nature of issues involving climate change, based on Art. 225 of the Federal Constitution:

"4. Constitutional, superlegal and legal duty of the Union and elected representatives to protect the environment and combat climate change. The issue, therefore, is of a binding legal nature, and it is not a free political choice. Determination to refrain from omissions in the operationalisation of the Climate Fund and the allocation of its resources. Arts intelligence. 225 and 5, § 2, of the Federal Constitution (CF).

(...)

16. Contrary to what the Presidency of the Republic and the General Law Of The Union claim, the question relevant to climate change is a constitutional matter. In this line, Art. 225, caput and paragraphs, of the Constitution expressly establishes the right to the ecologically balanced environment, imposing on the Public Power the power-duty to defend, preserve and restore it, for gifts and future generations. Therefore, environmental protection is not part of the Chief Executive's political judgment of political, convenience and opportunity. This is an obligation to which compliance is bound. In the same vein, the Constitution recognizes the supralegal character of the international treaties on human rights of which Brazil is part, pursuant to article 5, § 2.

17. In the same vein, the Constitution recognizes the supralegal nature of the international treaties on human rights of which Brazil is a party, pursuant to article 5, § 2. And there is no doubt that environmental matters fall under the hypothesis. As well remembered by the UNEP representative in Brazil, during the public hearing: "There are no human rights on a dead or sick planet" (p. 171). Treaties on environmental law constitute a species of the genus human rights treaties and therefore enjoy supranational status. Thus, there is no legally valid option to simply omit in the fight against climate change".

As shown in the transcript ion above, the vote of Minister Luiz Roberto Barroso attributes to the Paris Agreement a hierarchical position superior to infraconstitutional norms, granting it a constitutional character, since the Paris Agreement would be equal to international treaties on human rights. The understanding is in line with the terms of the Article 5, § 2, of the Federal Constitution.

The trial is extremely relevant to the subject of climate litigation, as it consists of another supreme court judge on the subject and takes an important step to leverage environmental policies in the country.

In addition to the ADPF 708, the Green Agenda comprises the following actions:

• ADPF 760, filed on 11/12/2020 with the objective of resuming the Action Plan for Prevention and Control of Deforestation in the Legal Amazon (PPCDAm);
• Direct Action of Unconstitutionality by Omission 54 (ADO 54), filed on 8/22/2019 on the grounds of unconstitutional omission of the Federal Government "in the task of combating deforestation, in order to achieve the purpose of making effective Articles 23, items VI and VII, and 225, caput and § 1, items VI and VII, of the Federal Constitution";
• ADPF 651, filed on 2/10/2020 with the aim of questioning the constitutionality of Presidential Decree 10,224/20, "which, on the pretext of regulating Law 7.797/89 – which creates the National Environmental Fund (FNMA) – excludes civil society from the deliberative council of the FNMA, which affronts the Federal Constitution in its most basic precepts";
• ADPF 735, filed on 9/1/2020 against Decree 10,341/20, in joint reading with Ordinance 1.804/GMMD/20, on the grounds of incompatibility of these norms with constitutional precepts, especially the right to the ecologically balanced environment. Together, the two rules authorize the use of the Armed Forces in the fight against environmental crimes, which harms the environmental protection system, to the extent that it entails and aggravates the emptying of the functions of environmental protection agencies and the Ministry of the Environment itself;
• ADO 58, filed on 6/5/2020 to claim recognition of unconstitutionality by default of the Union due to the non-availability of the amounts already deposited in the Amazon Fund;
• Direct Action of Unconstitutionality 6,148 (ADI 6,148), filed on 5/30/2019 against Resolution of the National Council for the Environment (Conama) 491/18, which provides for air quality standards, on the grounds that the resolution entails insufficient protection for the rights to information, health and the ecologically balanced environment; and
• ADI 6,808, filed on 4/22/2021 to request the declaration of unconstitutionality of Articles 6 and 11-A of Law 11,598/07, with the amendments granted to it by Article 2 of Provisional Measure 1.040/21, on the grounds that this provisional measure includes in the law for the automatic grant of environmental license to companies of medium risk-grade activities, in addition to making it impossible for environmental agencies to request additional information for the licensing of these companies.

Although they address issues different from that of ADPF 708, two other actions that make up the Green Agenda, mentioned above, were recently judged by the Supreme Court. ADI 6.148 was dismissed on 5 May this year to declare the constitutionality of Conama Resolution 491/18, but Conama was ordered to issue a new resolution on the matter within two years, including the following issues:

• the current Guidelines of the World Health Organization on appropriate air quality standards;
• the national reality and local peculiarities; and
• the primacy of free enterprise, social development, poverty reduction and the promotion of public health.

ADI 6,808 was found partially well founded on April 28 of this year to determine the exclusion of Articles 6 and 11a of Law 11,598/07 on environmental permits. The legal provisions mentioned, however, were not considered unconstitutional.

^[1]    The Supreme Court is composed of 11 ministers, and the full court, or plenary is formed by the 11 ministers and chaired by the president of the court. It is up to the plenary to judge the unconstitutionality or constitutionality of the laws, with a minimum quorum for the vote on constitutional matters of eight ministers (art. 143, § the only one of the rules of procedure of the Supreme Court).

Category: Infrastructure and energy

In a move that has gone largely unnoticed by the general public, the National Petroleum, Natural Gas and Biofuels Agency (ANP) took an important step in February of this year towards consolidating Brazil's leading role in the global energy transition process.

On February 10th, the ANP board approved ANP Resolution 866/22, which significantly expanded the list of projects eligible to receive investments that oil companies are required to make annually in research, development research, and development and innovation (RD&I).

With this expansion, the regulation of RD&I now expressly encompasses the possibility of investments in projects related to topics unrelated to the oil sector, including those involving decarbonization, energy transition, and renewable energy.

The change represents an important paradigm shift, since it is the first time that the ANP, an authority born to stimulate the development of the Brazilian oil industry, explicitly recognizes, in its regulations, the strategic role of oil companies in the development of technologies that, in the near future, will mitigate the environmental impacts of this industry and eventually replace the use of fossil fuels in the national energy matrix.

RD&I Regulation

The oil and natural gas exploration and production contracts signed in Brazil include a provision that requires, under certain circumstances, that companies invest a percentage of the gross revenue from their oil and natural gas production in RD&I projects (RD&I Provision). In the last five years alone, this obligation resulted in investments of almost R$10 billion in RD&I in Brazil, equivalent to 20% of the federal public budget directed to scientific research in the same period.

It is important to note that only RD&I projects in compliance with ANP regulations are eligible to receive investments based on the RD&I Clause. Since 2015, the main standards that regulate and direct investments in RD&I are ANP Resolution 50/15 and ANP Technical Regulation 3/15.

Originally, these rules required that investments in RD&I have the purpose of promoting scientific and technological development in the oil, natural gas, and biofuels sector. In addition, they authorized investments in "other renewable energy sources corresponding to that sector." Therefore, even investments in renewable energy should be related to the oil industry. There was no reference to projects aimed at energy transition or decarbonization.

With the publication of ANP Resolution 866/22, these standards have been significantly changed. Four new categories of RD&I projects have been included that are eligible to receive resources from oil and natural gas producing companies:

• renewable energy and energy transition;
• new actions for innovation and startups;
• innovation in micro and small enterprises; and
• reduction in risks and bureaucracy in regulations.

In addition to creating regulatory definitions for concepts such as renewable energy , energy transition, and decarbonization,^[1] the resolution brought in a central clarification: the express provision that the expenses qualified as RD&I encompass not only projects directly related to the petroleum sector, but also those from related sectors of renewable energy, energy transition, and decarbonization.

Impacts of the new regulation

According to a clarification released by the ANP itself, "the new version of the resolution proposes more clarity in the eligibility of RD&I projects related to renewable energy and energy transition, including decarbonization, CO₂ capture, and environmental characterization and protection studies.”

The agency also stated that it will establish a priority procedure for projects and programs that prioritize the allocation of RD&I resources to hydrogen, biofuels, energy storage, and digital transformation.

This change has a double importance:

• It confers greater legal security, from the regulatory point of view, to companies that have already been directing their investments in RD&I projects beyond the oil, natural gas, and biofuel areas. Even before the change, several companies had already submitted and obtained exceptional approval from the ANP for research not directly related to the oil sector, on topics involving, for example, CO₂ capture, storage, and transformation.

• The regulatory change seeks to stimulate the development of more projects aimed at decarbonization and energy transition beyond the companies and research institutions that had already been spontaneously proposing this type of project.

A few months after the publication of the new regulation, the analysis of data on RD&I projects submitted to the ANP for approval points to a strong indication that the change in rules has already started to produce concrete effects.

Between 2016 and 2021, RD&I projects classified in the categories "biofuels" and "other energy sources" represented a percentage of 3.74% of all projects approved by the ANP. By 2022, this percentage has more than doubled to 7.65% of the total.

It is possible that the proportion is even higher, because some lines of research, such as projects involving capture and underground storage of CO_2, are often approved by the ANP as part of larger projects related to improving the efficiency of oil fields, which ends up leading to their inclusion in the "exploration and production of oil and natural gas" category.

Brazil as a world protagonist

Knowing that more than 89% of global CO₂ emissions come from burning fossil fuels, it is evident how fundamental the expansion of a renewable energy matrix and the decarbonization of energy production sources is.

The effects of the conflict between Russia and Ukraine have also highlighted the issues of energy security and the high dependence of some countries on natural gas and oil. The skyrocketing fuel prices are just another undesirable consequence of this scenario. All these problems reinforce the urgency of rethinking the world's energy matrix.

Recently, the International Renewable Energy Agency's World Energy Transitions Outlook 2022 estimated that it will be necessary to invest around $5.7 trillion per year by 2030 in energy transition. Renewable energy’s share will have to grow strongly in all sectors, from 14 percent today to about 40 percent of all energy produced in 2030. The report also points out that governments will need to act with cross-cutting structural policies capable of accommodating the different technological routes and social demands.

The increase in investments in RD&I projects focused on renewable energy, energy transition, and decarbonization is a growing trend not only in our country, but worldwide. Given Brazil's continental dimensions and natural vocation for a cleaner energy matrix, we have the potential to lead the global energy transition movement and consolidate our position among the countries with the cleanest energy grid in the world.

Furthermore, as a signatory to the Paris Agreement and the Kyoto Protocol, Brazil has assumed international commitments that involve ambitious targets in terms of carbon reduction. The ANP's posture in recent years, aimed at a series of revisions to its regulatory framework and greater adaptation to the global energy scenario, could not be more in tune with these goals.

^[1] "1.21C. Decarbonization - The process of reducing and, in the long term, eliminating the emission of greenhouse gases, especially carbon dioxide."

Category: M&A and private equity

Securities and Exchange Commission Resolution 166(CVM), which governs the publications required by the Brazilian Corporations Law for smaller publicly-traded companies (those with annual gross revenues of less than R$500 million, based on the financial statements for the last fiscal year), will enter into effect on October 3, 2022. Until then, smaller publicly-traded companies were subject to the same publication rules as larger publicly-traded companies.

The new CVM resolution allows smaller publicly-traded companies to carry out, through the Companies.NET and Funds.NET,the publications required by the Brazilian Corporations Law or provided for in the regulations issued by the CVM.

These information submission tools are able to record the time when the information was disclosed and ensure the inalterability of its content and source. This assures the external public that the information published comes directly from the company. The publications will be considered made on the date the documents are disclosed in the systems by the companies.

When the publications are made by third parties without access to the systems, such as, for example, in the case of article 258 of the Brazilian Corporations Law (publication of tender offer by the offeror, in the case of public offerings to acquire control of a publicly-held company), the third party may send the document to the company, which must then disclose it through the Empresas.NET and Fundos.NET systems .

The publication of documents via the Empresas.NET and Fundos.NET systems does not imply an analysis of the merits or agreement with their content on the part of the CVM or any organized market entity.

Regarding the issue of publications mandated by the Brazilian Corporations Law, it is worth remembering the recent changes put into place by Law 13,818/19 (which amended the Brazilian Corporations Law to provide for mandatory publications) and the Legal Framework for Startups (Complementary Law 182/21):

• The most relevant change is the end of the obligation for companies to publish in the official press outlets of the Federal Government, the states, or the Federal District. According to the new wording of article 289 of the Brazilian Corporations Law,, as amended by Law 13,818/19, the publications must be made in a “newspaper of wide circulation published in the locality in which the company's headquarters is located, in a summary form and with simultaneous disclosure of full copies of documents on the same newspaper page on the Internet, which shall provide digital certification of the authenticity of the documents kept on a separate page issued by an accredited certification authority under the Brazilian Public Key Infrastructure (ICP-Brasil)."

• Regarding publications that involve financial statements, the new wording of article 289 of the Brazilian Corporations Law, amended by Law 13,818/19, provides that publication in summarized form must contain, at least, "in comparison with the data of the previous fiscal year, global information or values related to each group and the respective classification of accounts or records, as well as extracts of the relevant information contemplated in the explanatory notes and in the opinions of the independent auditors and the audit committee, if any.

The following table summarizes the publication arrangements currently in effect.