Publications

Category: Life sciences and healthcare

The Brazilian healthcare system has been undergoing an intense process of digital transformation, through the application of technological tools such as AI, blockchain, IoT, and others in management processes, research & development, healthcare, and public policies. This movement requires significant changes in sector-specific legislation and the behavior of the stakeholders involved. Our Life Sciences and Healthcare experts bring the main regulations applicable to the topic, as well as perspectives for the near future.

Category: Litigation

The environmental issue has gained legislative attention in recent times, both in the constitutional sphere and in the ordinary sphere, given the recent bills that address the issue.

Environmental damage has certain complexities, such as the difficulty of reversing it, which contributes greatly to the worsening of disasters. Another complex issue is the volume of financial resources needed to rehabilitate the environment and compensate potential victims.

Once environmental damage has been established, it must be repaired. However, this repair is not always easy to achieve or solve immediately.

Two recent bills in the pipeline aim to regulate the issue of environmental repair in order to meet civil society's concerns about environmental protection.

Bill 2,257/23 provides in its article 2 that "the economic activity of the company responsible for the occurrence or imminent risk of an accident or disaster may be suspended for as long as there is no full repair for the economic, social, cultural, and environmental damage produced or for as long as the situation of imminent risk that has led to the forced displacement of people persists.”

This proposal, however, could have a practical effect opposite to what is expected. This is because the act has a direct impact on the company's financial capacity and may even make it impossible to fulfill the obligation to repair the environmental damage.

Bill 740/23, in turn, proposes suspending the payment of profits to shareholders of corporations involved in environmental disasters.

This suspension violates article 202 of the Brazilian Corporations Law (Law 6,604/76), which gives shareholders the right to receive as a mandatory dividend the portion of profits established in the bylaws. It also violates fundamental principles such as due process of law and free enterprise, which must be preserved because they have constitutional protection.

It is easy to see that bills with a simplistic approach, without a definition of environmental damage, the dimensions and establishment thereof, and without observing the principle of due process of law, which guides all the other principles of the constitutional order, can generate inefficiency in terms of their applicability, as they violate basic principles enshrined in the Federal Constitution (FC) and in laws that have already been regulated.

Suspending a company's activities, even temporarily, has an impact on the performance of its economic activities. Ceasing payments to the shareholders of corporations involved in environmental disasters violates fundamental principles such as free enterprise (article 170 of the Federal Constitution).

It should be remembered that there are already laws in our legal system that deal with protection of the environment and affected communities, such as Law 6,938/81, which systematized environmental law by creating the National Environmental Policy, Law 9,605/98, which regulates environmental crimes and consequent punishments, including criminal liability for legal entities, and Law 12,334/10, which establishes the National Dam Safety Policy, among others.

Therefore, in addition to taking into account the basic principles of the Federal Constitution, the bills in progress must be careful not to conflict with rules already in place.

Category: Labor and employment

The Ministry of Labor and Employment (MTE) has finally released the salary transparency reports, but, as we anticipated, the numbers presented do not reflect the real scenario of the companies so that the comparison intended by Law 14,611/23 can be made.

This discrepancy led companies to turn to the Judiciary, especially due to the pressure to disclose these inaccurate reports in such a short period of time – considering the date of disclosure of the reports by the MTE and the deadline for their disclosure on the companies' websites and social networks.

In this scenario, on the afternoon of Friday, 03/22, the decision issued in the of Interlocutory Appeal 6002221-05.2024.4.06.0000/MG, filed from the proceedings of the Class Action 6002221-05.2024.4.06.0000, filed by the Federation of Industries of the State of Minas Gerais (FIEMG), was released. This decision granted the preliminary injunction sought by FIEMG to suspend the effects of Decree 11,795/23 and MTE Ordinance 3,714/23, specifically regarding the publication of salary transparency reports and remuneration criteria.

According to Judge Mr. Lincoln Rodrigues de Faria, who ruled on the interlocutory appeal, the decision is effective erga omnes (for all), which would extend its effects to the national scope and beyond the sphere of the companies represented by FIEMG.

• But what about now: should companies disclose the reports made available by the MTE or not?

The answer to that question initially depends on the nature of the decision itself. Preliminary injunction, as the name suggests, has a precarious effect over time. This means that it can be revoked or modified at any time. From this, the obligation to publish the reports would immediately be in force again.

It is important to note that the decision issued in the case of FIEMG does not determine the suspension of the effects of Law 14,611/23, but only of the decree and the ordinance. Therefore, the recommendation to prepare a salary transparency report is still in force because, depending on the interpretation given to the scope of FIEMG's decision, it may be necessary to disclose a report every six months. The scenario is still uncertain and surrounded by legal uncertainty.

As we have recommended from the beginning, it is important that companies maintain their own salary transparency reports, prepared according to the specificities of the occupations and, above all, with an analysis of the requirements of article 461 of the Brazilian Labor Law - CLT. This applies both to the need for biannual publication and as a result of requests for information from the Labor Prosecutor's Office or other inspection entities.

Precisely because of the precariousness of a judicial decision of a provisional nature, any company interested in not disclosing its report on the day immediately following the revocation or modification of FIEMG's decision must be prepared to adopt the appropriate judicial measures to avoid the publication.

Update on 03/26/2024, at 7:57 p.m.:

The preliminary injunction that suspended the obligation to publish salary transparency reports was revoked. At the request of the Federal Government, the President of the Federal Regional Court of the 6th Region, Judge Mrs. Monica Jacqueline Sifuentes, suspended the effects of the preliminary injunction previously granted to FIEMG, resuming the need to publish the reports of the Ministry of Labor and Employment on companies' websites and social media until 03/31/2024

Companies that wish to prevent the disclosure of the report, at this time, must adopt the appropriate legal measures before the courts.

We remind you that not disclosing reports within the deadline stipulated in Decree 11,795/2023 and MTE Ordinance 3,714/2023 may lead to the payment of a fine of 3%, calculated on the payroll of the company, limited to the amount of 100 minimum wages.

Category: Labor and employment

March 21 was established by the United Nations (UN) in 1976 as the International Day to For the Elimination of Racial Discrimination, in memory of the massacre that took place on March 21, 1960, in South Africa, during the Apartheid regime.

In a peaceful demonstration attended by about 20,000 people against the Pass Law – which required black people to carry identification cards showing the places they could go – the local army fired at the protesters. The attack left 69 dead and 186 injured and became known as the "Shaperville Massacre".

The fight against racial discrimination is an old international struggle, long before Apartheid. In Brazil, although there were previous movements, including the promulgation of the International Convention on the Elimination of All Forms of Racial Discrimination in 1969,^[1] the agenda gained strength with the Federal Constitution of 1988.

The new constitutional charter established the crime of racism as non-bailable and imprescriptible (article 5, item XLII), dealt with and regulated by Law 7,716/89 and Law 14,532/23, which equates racial insult to the crime of racism.

There is no doubt that the topic is extremely important, both nationally and internationally. Keeping the issue in the spotlight helps combat the scars left by centuries of enslavement. The discussion should also take place in spheres that may seem to play a secondary role in the fight for the elimination of racial discrimination, but which have an important impact on this fight, as is the case of labor/employment law.

The reader may be wondering what the employer, employee or workers in general and the labor/employment laws have to do with this agenda. The answer is: everything.

March 21 serves to draw attention to important issues that affect all of society and is an opportunity to reflect on the role of labor relations in this historic struggle.

The Federal Constitution itself provides, in article 7,^[2] item XXX, that any type of difference in salary, exercise of functions and admission criteria due to sex, age, color or marital status is prohibited. 

Before establishing any employment relationship, therefore, the employer must guarantee equal access to the hiring process for all, regardless of race or ethnicity.

It is also considered a crime, subject to imprisonment of two to five years, to deny or prevent employment in a private company due to discrimination or prejudice based on race, color, ethnicity, religion or national origin.^[3]

This does not mean that the company cannot establish specific selection processes for certain groups, the so-called positive discrimination, as established in article 4, item II, of the Statute of Racial Equality.^[4]

What needs to be clear is the company's need, the requirements of the position, and the justification of the criteria established for the process. A case that illustrates the subject well is the much-talked-about trainee program exclusively for black people carried out by Magazine Luiza in 2020.

At the time, the Labor Court understood that the program was fully valid, based on the Federal Constitution and the Statute of Racial Equality, which establishes policies to promote racial equality and combat discrimination, in addition to creating reparation mechanisms for victims of racism.

This is a historical reparation in a country that, for years, used the regime of slavery to organize its society.

In the Statute of Racial Equality there is an express provision that it is the duty of the State and society to guarantee equal opportunities, regardless of skin color or ethnicity (Article 2). This concept of "society" naturally encompasses companies and employers in general.

The principle of the social function of the company and of ownership is one of the pillars of our legal system. This principle involves precisely the responsibility of companies to contribute to society. In addition to profit, they must seek to promote equality, create jobs, respect the environment and ethical practices in the exercise of their activities.

Another rule that regulates the subject is Law 14,553/23, according to which companies must declare race and ethnicity in labor/employment documents, which is a way to corroborate the commitment of the private sector and labor law to promote racial equality.

We also highlight the issue of equal pay. As already addressed in several articles on our portal, this topic has been treated by the government with extreme attention, with the proximity of the deadline for companies with more than 100 employees to prepare the Salary Transparency Report, instituted by Law 14,611/23. Although the focus is currently on gender equality, it is expected that, in a next stage, other aspects will be addressed, such as racial equality.

Employers Should Be Mindful of Their Obligations

It is the employer's role to allow access to job positions to all on an equal basis, in addition to ensuring a healthy work environment from a physical and psychological point of view, prohibiting any and all discriminatory practices in their establishments and refraining from practicing any discriminatory act.

In addition to being considered crimes, discriminatory acts such as hindering or preventing access to the labor market, hindering career progression with the institution of totally subjective and unjustified criteria, allowing the adoption of expressions or jokes of a discriminatory nature also characterize, in the labor sphere, the so-called "moral harassment".

All these acts are punishable by compensation to the victim and may generate various administrative penalties, such as investigation by the Labor Public Prosecutor's Office and administrative fine, among others.

Other points that employers should be aware of:

• failing to provide the necessary equipment on equal terms for all employees;
• prevent the employee's functional advancement or other form of professional benefit; and
• provide differential treatment in the workplace – especially in relation to salary.

These practices are classified as a crime by Law 7.716/89 and punishable by imprisonment of two to five years, in addition to administrative fines and sanctions from the Public Prosecutor's Office.

In addition to all the pecuniary effects and judicial and administrative penalties already mentioned, it is necessary to consider the reputational impact in the event of a conviction for moral harassment as a result of racial discrimination or any act of discrimination related to skin color.

Thus, on March 21st, in addition to remembering the reasons that marked the date in the past, we take the opportunity to draw the attention of our readers, customers and partners to the theme of racial discrimination, especially to the role of companies as fundamental agents in the fight for racial equality.

We must all be allies of the government in the fight for the elimination of any form of discrimination, not only to avoid the penalties mentioned here, but also to fulfill the social function provided for in the Federal Constitution and collaborate in the construction of the just and egalitarian society that we so much desire.

Therefore, we encourage employers to inform themselves on the topic. It is necessary to study, promote and disseminate actions to combat racial discrimination and to deepen its obligations, as well as to know the tools available for the fulfillment of this social role.

Concluding and proposing an answer to the title of this article, labor law is an important and essential tool to combat racial discrimination, ensure equality, isonomy and the creation of a society that is always and necessarily inclusive.

^[1] Decree 65.810/69

^[2] Article establishing minimum workers' rights

^[3] Law 7.716/89, article 4

^[4] Law 12.288/10

Category: Environmental

The Amazon Summit, one of the greatest international events of the year, will take place in Belém, capital of the state of Pará, on August 8th and 9th.

Heads of state from all the eight countries that compose the Amazon Cooperation Treaty Organization (Organização do Tratado de Cooperação Amazônica or OTCA) will attend the meeting: Bolivia, Brazil, Colombia, Ecuador, Guyana, Peru, Suriname and Venezuela. Leaders from other countries interested in environmental issues involving the Amazon rainforest, such as France and Norway, are also expected to attend the event.

OTCA is the only socio-environmental group in Latin America. The organization was founded in 1995 by the signatory countries of the Amazon Cooperation Treaty (Tratado de Cooperação Amazônica or TCA), signed in 1978 by the eight Amazonian countries mentioned above.

TCA was incorporated into the Brazilian legal system through Federal Decree 85,050/80. The treaty emphasizes the importance of collaboration between Amazonian and outlines a set of actions aimed at achieving "equitable and mutually profitable results, as well as for environmental preservation, besides conservation and rational use of these territories’ natural resources" (Article I).

Among these actions, it is worth mentioning:

• ensuring broad freedom of commercial navigation along the Amazon River and other international Amazonian rivers (Article III);
• promoting scientific research and the exchange of information and technical personnel between the countries’ authorities (Article VII);
• coordinating health services, with the purpose of improving the region’s sanitary conditions and improving methods of preventing and combating epidemics (Article VIII);
• promoting studies in order to establish or improve road, river, air and telecommunications interconnections (Article X);
• promoting measures aiming at conserving ethnological and archaeological resources located at the Amazon area (Article XIV).

The Amazon Summit reinforces TCA provisions, and its main objective is to settle a common policy intending on the region’s sustainable development, through declarations from the treaty’s member states.

For the first time, countries are seeking cooperation to enable the establishment of a unique position in global discussions concerning the Amazon region. The topics to be discussed are the main challenges in the region, including climate change, organized crime, energy transition and social development of communities.

The final statements arising from the discussions held at the Amazon Summit will be presented during the general debate of the United Nations General Assembly in September.

Shortly before the start of the summit, from August 4th to 6th, the so-called Amazon Dialogues will take place. In this period, civil society and other interested parties will have the opportunity to actively discuss new strategies for the Amazon region through seminars, debates, exhibitions, and cultural performances.

The General Secretariat of the Presidency of the Republic (SGPR) released, on June 14th, a conceptual note about the Amazon Dialogues. According to the document, the activities will be split into meetings organized by the federal government, with broad social participation, and self-organized meetings by civil society, academia, research centers and government agencies.

There will be five sessions, and reports of each of them will be produced and presented by five representatives of civil society to the leaders of the Amazonian countries during the summit.

According to the conceptual note, after several consultations with the main stakeholders (Amazonian peoples and communities), dozens of topics were identified to be discussed, such as:

• combating and preventing deforestation, and the sustainable management and conservation of the forest;
• climate change;
• cooperation to prevent and combat environmental crimes in the Amazon;
• management and restoration of the Amazon river basin;
• cooperation between Amazonian countries;
• the role of civil society in the sustainable development of the Amazon;
• health and food safety;
• combating Amazonian poverty;
• reduction of regional inequalities;
• challenges of gas, mining and oil projects; and
• climate-environmental financing and favorable environment for bio-business in the Amazon.

To better organize  the Amazon Dialogues, Ordinance SG/PR 155/23 established a technical working group to “define the structure and organization of the Amazon Dialogues, mobilize civil society for the event, organizing the initiatives in seminars for debates and exhibitions.”

The Ministry of Environment and Climate Change also published Ordinance MMA GM/MMA 553/23, establishing the working group to organize the Amazon Summit. It is worth mentioning the diversity of the group, composed by a representative of each of the following bodies, as determined by article 2 of the Ordinance:

• Executive Secretariat;
• Extraordinary National Secretariat for Deforestation Control and Territorial Environmental Planning;
• National Secretariat for Climate Change;
• National Secretariat for Biodiversity, Forests and Animal Rights;
• National Secretariat of Urban Environment and Environmental Quality;
• National Secretariat of Bioeconomy;
• National Secretariat of Traditional Peoples and Communities and Rural Sustainable Development;
• Brazilian Forest Service (Serviço Florestal Brasileiro or SFB);
• Special Advisory on International Affairs;
• Brazilian Institute of the Environment and Renewable Natural Resources (Instituto Brasileiro do Meio Ambiente e dos Recursos Naturais Renováveis or Ibama);
• Chico Mendes Institute for Biodiversity Conservation – Chico Mendes Institute; and
• National Agency for Water and Basic Sanitation (Agência Nacional de Águas e Saneamento Básico or ANA).

The meeting of several participants also occurs in the preparatory phase of the event. About 140 organizations of indigenous peoples, quilombolas, traditional communities and civil society (at regional, national and international levels) sent a letter to the Amazonian countries’ presidents, to Brazilian President’s International Office, to Itamaraty, to OTCA and to the Ministries of Foreign Affairs of the Amazonian countries requesting, in general, “spaces for the active and effective participation of indigenous peoples, quilombolas, traditional communities and civil society in the planning and development of the Amazon Summit.”

This effective and active participation could be materialized, for instance, through:

• autonomously appointed representatives;
• organizations of diversified working groups, so that their proposals and opinions influence the governments determinations;
• transparency mechanisms that allow the documents and issued reports to be public; and
• channels to receive contributions and suggestions.

Pará gains prominence as a venue for environmental discussions

Pará is becoming increasingly important in the environmental agenda especially due to the several international events taking place in its area.

In 2021, for example, Belém hosted the World Bioeconomy Forum, becoming the first venue to host such an event outside of Finland. This year, in addition to the Amazon Summit, the 1st Amazon Environmental Judicial Summit – Judges and Forests at Pará State Court of Justice is scheduled for August. In 2025, the capital of Pará will host the 30th UN Conference of the Parties on Climate Change (COP 30).

The Amazon Summit is fundamental to the implementation of measures towards the region’s sustainable development. In an unprecedented move, the expectation is that the eight countries that have sovereignty over the Amazon Rainforest develop with the interested groups an agenda focused on the protection and ecological conservation of the Amazon.

As an immediate political consequence of the event, the Amazon Summit is expected to strengthen OTCA by boosting cooperation among its member states and intensifying joint actions to address the region's environmental and socio-economic challenges.

Category: Telecommunications

Obtaining funding for projects on competitive conditions has historically challenged telecommunications services providers, especially small providers (“Prestadoras de Pequeno Porte” or PPPs).

Facing this scenario, the Ministry of Communications (MCom), alongside the National Bank for Economic and Social Development (BNDES) and the Financier of Studies and Projects (FINEP), has been working to operationalize financing mechanisms using resources from the Fund for the Universalization of Telecommunications Services (FUST) and the Fund for the Technological Development of Telecommunications (FUNTTEL).

By 2025, BRL 2.2 billion in resources from these sectoral funds are expected to be made available to finance the expansion of telecommunications networks in the country. Added to these figures is BRL 1.16 billion already allocated from FUST to BNDES last year, totaling more than BRL 3.3 billion available in various funding modalities and targeted at companies of all sizes.

In addition, MCom is currently constructing a platform with data on regional internet providers to provide critical information for financial agents and facilitate the analysis and release processes to make funding resources available.

BNDES

In the telecommunications sector, BNDES has the specific programs BNDES Finame FUNTTEL and FUST, BNDES Finem – Telecommunications, FUST BNDES and FUNTTEL BNDES.

BNDES Finame FUNTTEL assists telecommunications services providers and suppliers of specialized goods and services for the sector, while BNDES Finame FUST is aimed explicitly at micro, small or medium-sized internet providers. Both modalities focus on financing the acquisition of telecommunications equipment, optical fiber cables, or associated working capital, limited to 30% of the total financing amount.

The BNDES Finem – Telecomunicações program is aimed at investments in the universalization of broadband in Brazil and the implementation, expansion, and modernization of telecommunications networks. The minimum amount of financing is BRL 20 million for PPPs and BRL 40 million for other companies.

FUNTTEL BNDES aims to fund investments by the Brazilian telecommunications industry in innovation, expansion of production capacity, and acquisition of equipment developed or produced in the country’s plans. In turn, FUST BNDES finances investments to expand and improve the quality of networks and services in schools, cities, and rural areas. Both are aimed at funding starting from BRL 10 million.

FINEP

FINEP is a public company linked to the Ministry of Science, Technology, and Innovation (MCTI) that aims to support projects and studies of interest to Brazil’s economic, social, scientific, and technological development.

FINEP offers FINEP 5G, using FUNTTEL resources, in two modalities. The first, called Research, Development and Innovation, focuses on developing technological solutions enhanced by adopting 5G technology. Special conditions apply to proponents’ projects with annual gross operating revenue of up to BRL 300 million, headquartered in the North, Northeast or Midwest Regions of Brazil or with investment in internal Research and Development equal to or greater than 10% of their Net Operating Revenue.

The second modality, called Networks, aims to implement the winners’ projects from the 5G bidding process in Brazil and install private 5G networks.

FINEP Aquisição Inovadora Telecom, on the other hand, is targeted at Brazilian companies of any size. It finances the acquisition of technologies developed by innovative national companies.

In addition, FINEP also has the product FINEP Telecom, which focuses on innovative activities in the sector. In this modality, companies with revenues of more than BRL 90 million will use the Direct Support to Innovation – FINEP Telecom, with special conditions, while those with revenues lower than the mentioned amount will receive resources within FINEP Inovacred Telecom.

Thus, we see that, although obtaining resources through funding has been a historical problem in the telecommunications sector in Brazil, especially for smaller providers recent MCom initiatives involving BNDES and FINEP offer a diversified portfolio of funding options, with different objects to support companies operating in the sector.

This represents a relevant opportunity, especially for smaller companies, which will be able to obtain funding under competitive conditions from these entities, receiving resources to work on expansion and innovation projects in their businesses.