Publications

Category: Litigation

In times of "overinformation" and an increasingly digital society, where a quick acess in a search site can lead to any content anywhere in the world, discussions involving the right to be forgotten – i.e., the withdrawal of personal information from websites and mass media – and its (in)compatibility with the right to freedom of the press are increasingly complex.

The discussions gained emphasis on the world legal stage in 2014, with an important precedent set by the Court of Justice of the European Union (EU) in a case involving the right of a person to have his name excluded from searches made through websites that related him to journalistic articles that, although reporting true facts, would be causing damage to his personal life.^[1]

According to this precedent, the European Court has recognised the right of an individual to have his personal data erased from the Internet.^[2]

In Brazil, due to the absence of specific legislation, the debate on the right to be forgotten has been outlined by the Higher Courts.

In December 2021, the Third Panel of the Superior Court of Justice (STJ) concluded the trial of Special Appeal 1,961,581/MS, under the rapporteurship of Minister Nancy Andrighi. The case had as background the suitability or not, based on the institute of the right to be forgotten, of imposing on mass media the obligation to exclude journalistic articles about the practice of crime from which the defendant was subsequently acquitted.

Applying the understanding signed by the Supreme Federal Court (STF) in a trial in February 2021 (Theme 786), it was understood that the right to be forgotten, because it is incompatible with the Brazilian legal system, does not justify the imposition of the obligation to exclude articles published in the media, provided that the facts in them do not go beyond the limits of the right to freedom of the press.

The STJ granted the special appeal for considering that the right to freedom of the press provided for in Article 220, §1, of the Brazilian Federal Constitution was not exercised with abuse. For the rapporteur minister, although the press is not absolutely linked to the disclosure of uncontroversial facts, there must be a diligent and careful action both in the investigation and in the disclosure itself, in order to meet, at least, the requirement of verisimilitude.

Not only that but in addition to meeting the requirements of veracity and relevance, according to which the media must provide information relevant to social interaction, journalistic activity is committed to safeguarding the rights of personality, that is, it cannot, under any circumstances, be exercised with the objective of "defaming, insulting or slandering".

For the ministers of the Third Panel of the STJ, the right to freedom of the press is the rule and can only be mitigated when the content conveyed is untrue, not relevant to social interaction and/ or violates the rights of the personality of the individual subject of the news. In this sense, despite the fact that the defendant was subsequently acquitted of the crime for which he was accused, there was no doubt about the veracity and public interest of the information disclosed at the time (2009) by the applicant, as it was in fact related to the criminal sphere. Furthermore, the defendant did not claim at any time that the news was intended to offend his honor.

From this trial, the Third Panel of the STJ updated the position of that Court, based on the understanding of the STF, because, in previous judgments, the Fourth and Sixth Panels had already granted validity to the right to be forgotten, conceptualizing it as "(...) right not to be remembered against his will, specifically with regard to discreditable facts, of a criminal nature, in which he was involved, but latter acquitted."^[3]

For the Higher Courts, therefore, the preponderant factor for favoring or not the right to be forgotten is the fact that the exercise of the right to freedom of the press has been considered legitimate or illegitimate, depending on whether or not the rights of the party's personality are violated.

It should also be highlighted that the approaches of the Third Panel of the STJ and the STF differ from that adopted by the Court of Justice of the EU, which in itself demonstrates the complexity of the issue and indicates that discussions involving the right to oblivion will continue to be brought to Brazilian Courts, despite the legal incompatibility pointed out by the STF between this right and the Brazilian Federal Constitution.

In any case, it is unquestionable the advance of the theme in the Brazilian Judiciary and its relevance in our society, to the extent that, regardless of the fact that the right to freedom of the press is not considered absolute, it must prevail whenever exercised with respect to the principles of ethics and good faith. What remains now is to follow how the Legislative Branch will behave in the face of the changes that occur at all times in the information society, increasingly dynamic, and whether these changes will force our higher courts to review the application of the institute of the right to be forgotten.

^[1] The news linked to the name of the plaintiff concerned the real estate auction due to non-payment of taxes.

^[2] Conjur site - Right to erase data and the decision of the European court in the Case of Google Spain

^[3] Habeas Corpus 256,210/SP, Minister Rapporteur Rogerio Schietti Cruz, Sixth Panel, judged on 3.12.2013; EDcl on REsp 1121199/SP, Minister Rapporteur Luis Felipe Salomão, Fourth Panel, judged on 27.3.2014.

Category: Tax

In a unanimous judgment, the 1st Section of the Superior Court of Justice (STJ) granted the claim of the National Treasury to reaffirm its position regarding the possibility of maintaining the seizure of bank deposits via the BACENJUD system even though the taxpayer subsequently is enrolled on a program to pay such tax credit executed in installments.

The decision was taken in Repetitive Theme 1.012/STJ, and the following thesis was fixed as a general orientation:

The seizure of financial assets of the taxpayer in the BACENJUD system, in case of enrollment on a tax installment program, will be:

• lifted if the concession to the program was granted prior to constriction; and

• the seizure is maintained if the concession to the program occurs at a time post-constriction, subject, in this case, the exceptional possibility of replacing the amounts with bank bail letter or insurance guarantee, in view of the peculiarity of the specific case, by irrefutable proof of the need to apply the principle of least onerosity.

The rapporteur, Minister Mauro Campbell Marques, stressed that the jurisprudence of the STJ is firm in the sense that the enrollment on ta tax installment program will have effects to suspend the enforceability of the tax credit (Article 151, VI, ctn), without extinguishing the obligation.

Such circumstance, according to the Minister, legitimates the maintenance of the preexisting constriction incident on the debtor's assets, until the debt is fully paid. The possibility of the tax authority shall be ensured to resume tax enforcement in the event of non-compliance with the payments on the tax program.

Despite the position of the Supreme Court regarding the maintenance of seizure in case of adhering to the installment at a time after constriction, it is important to highlight that the taxpayer was assured the possibility of replacing the amounts pledged by guarantee insurance or bank bail letter, when it is shown that such amounts may compromise the regular activity of the taxpayer,  attention to the principle of lesser burden.

In such cases, it will be up to the taxpayer to effectively demonstrate the serious damage caused by constriction as a main ground to authorize its replacement.

It would be important for the Supreme Court to examine the progressive and proportional release of the value of the seizure, adjusting it to exclude the exact size of the portion of the debt already paid. This is because, maintaining the full blocking of the amounts until the end of the installment, there will be excess guarantee, causing serious damage to the taxpayer, especially in the chances of long-term installments programs.

Like what minister Napoleon Nunes Maia Filho defended^[1] at the time of the STJ, "the execution must be processed in a calibrated manner, to achieve the purpose of the execution process, that is, the satisfaction of the credit, with the minimum sacrifice of the debtor (...) there is no reasonableness or common sense of equity in the orientation that accepts restrictions superior to the needs of satisfaction of the tax credit. The excess of guarantee is something that does not have the allowance of law and of the shallowest common sense of Justice".

Therefore, once the gradual payment of the installments was verified as a result of the conclusion of the installment payment agreement, the debtor should be assured of the proportional release of the constricted amounts, in order to maintain the equivalence between the tax debt and the guarantee of execution.

Because it is a judgment submitted to the rite of repetitive appeals, the understanding signed by the Supreme Court in the judgment of Repetitive Theme 1.012/STJ should be followed in cases dealing with an identical issue.

^[1] REsp n. 1.266.318/RN, rapporteur Minister Napoleon Nunes Maia Filho, First Class, judged on 12/7/2017, DJe of 12/14/2017.

Category: Banking, insurance and finance

Legal entities and investment funds incorporated in Brazil must submit a report to the Central Bank of Brazil detailing investments in their quotas and/or shares held by foreign investors, or the outstanding short-term trade debts owed to non-residents, on December 31, 2021, in the following situations:

(a) legal entities must submit this report when, on December 31, 2021, they had a net worth equivalent to or over USD 100 million and, simultaneously, any direct ownership held by non-resident investors in their capital stock, regardless of the amount;

(b) legal entities must submit a report with respect to their current liabilities with non-resident lenders by means of debt instruments when, on December 31, 2021, they had an outstanding balance in short-term trade debts (due within 360 days) equivalent to or over USD 10 million, regardless of any foreign equity ownership in their capital stock; and

(c) investment funds must submit a report when, on December 31, 2021, they had a net worth equivalent to or over USD 100 million and, simultaneously, quotas directly held by non-resident investors, regardless of the amount.

The reporting obligation mentioned above does not apply to the following persons and administrative bodies:

• individuals;

• direct administrative bodies of federal, state, Federal District, and municipal governments;

• legal entities who are debtors in the transfer of foreign loans granted by institutions headquartered in Brazil; and

• nonprofit entities maintained by the contributions of non-residents.

The report must be electronically submitted to the Central Bank through the website www.bcb.gov.br between July 1, 2022, and 6 PM on August 15, 2022.

The manual containing detailed information on the content and requirements of the report is available on the same website.

Those responsible for this report must store the supporting documentation for five years, counted as of the base date of the report, available for submission to the Central Bank upon request.

Failure to submit the report, or submitting a report that does not comply with the applicable regulations, subjects the violator to a fine of up to BRL 250,000 under article 66 of BCB Resolution No. 131, of August 20, 2021.

The Census of Foreign Capital in Brazil aims to compile statistics on the external sector, especially the International Investment Position, to subsidize the development of the economic policy and support the activities of the economic researchers and international agencies.

(BCB Circular No. 3,795/16, Law No. 13,506/17 and BCB Resolution No. 131/21.)

Category: Tax

Taxpayers were surprised earlier this year by an important decision of the Superior Court of Justice (STJ) in the case file of Special Appeal 1.826.124/SC. The 1st Class of the Court unanimously recognized the possibility of customs review even after the customs clearance has been submitted to verification procedures (i.e., having gone through inspection channels that require more detained analysis of imported goods). The decision is in line with what has been strongly defended by taxpayers, especially in cases relating to the tax classification of products.

In order to understand the discussion and why the Position of the Supreme Court is relevant to all those who import goods, it is important to recall some concepts.

The import customs tax procedure consists of four phases: declaration processing, customs verification, customs clearance and customs review.

At the customs verification, the tax auditor identifies the importer, checks the goods and the correction of information relating to nature, tax classification, quantification and value, in addition to confirming compliance with all obligations, tax and customs (or requesting changes), in order to perform the customs clearance of the goods.

Through an automated system, imports are subjected to channels – such as in the distribution of a lawsuit to the judge – in which there will be more or less detailing of information and requests from the authorities.

This procedure may be automatic, when the goods are directed to the green channel, or it will be conditioned to the document verification (yellow channel), added to the physical verification of the goods (red channel) or the initiation of special customs control procedure (gray channel), to verify evidences of fraud in the import operation.

Especially in situations where the goods are directed to the red channel, it is common that technical reports to support discussions related to the tax classification of goods are requested.

This is because, once the import has been submitted to that channel, the tax authority is required to carefully analyze all the information and elements to confirm that the imported good is consistent with that reported in the import documents. After this procedure, the goods can be released - customs cleared.

Even after all this procedure and regardless of the chosen channel and the analysis carried out for the release of a particular good, Article 638 of the Customs Regulation provides for customs revision procedure.

In nutshell, it allows the authorities to, within five years from the import (statute of limitation period), recheck the regularity of the payment of taxes, the proper use of tax benefits and the accuracy of the information provided by the importer in the import declaration.

The legal controversy lies in this possibility of customs review itself.

Taxpayers argue that there is no need for customs review over cases that have already passed through the yellow, red and gray verification channels, because on these occasions the goods were thoroughly analyzed by the tax auditors themselves in relation to payment, information declared, nature of the goods – including analysis by experts specialized in the imported goods.

The customs review, therefore, would imply the express approval of the taxpayer's correctness, with the final customs clearance.

The taxpayers' argument is even stronger in relation to the red and grey channels, in which the analysis for the purposes of clearing the goods requires the physical analysis by the the customs inspector, who confirmed, after reviewing  the process and the imported goods, that the customs clearance could occur as it was declared by the importer..

In cases where such an analysis has already taken place with tax authorities implementing the customs review, taxpayers believe that,  the legal criterion originally adopted has changed, the effect of which, to the limit, could only be applied for future operations.

Taxpayers base their understanding on articles of the National Tax Code, which impose limits on the performance of the inspection. Moreover, said articles, due to their scope, could be perfectly applicable to cases of customs review.

More specifically, taxpayers make use of the following:

• article 100, that restricts the applicability of retroactive effects when there is a change of legal criterion;
• Article 149, which identifies the situations in which a tax assessment can be reviewed by the auditor (highlighting the situation in which the fact was not known or was not proven at the time of the previous accordance – error of fact); and
• article 24 of the Law on Introduction to the Rules of Brazilian Law (LINDB), which foresees the invalidation of legal situations fully constituted with base in subsequent change of general orientation – common in the scenarios of customs review, which occurs after the taxpayer has carried out numerous import processes, including discussions with the inspection about its correction.

This understanding of the taxpayers, for a long time, was accepted by the STJ^[1] and the Administrative Council of Tax Appeals (Carf),^[2] whose jurisprudence established the impossibility of changing the legal criterion and the following application of retroactive effects of said “new position” to the customs clearance completed.

In other words, both the administrative courts and the STJ agreed that the previous analysis carried out by the inspection (e.g. red channel) confirmed the correction of imports, which is why it would no longer be possible to demand from the importer a new change in imports and the payment of differences in taxes.

Nevertheless, this jurisprudence has been altered in recent years, culminating in the of the Special Appeal 1,826,124/SC.

The appeal was based on an lawsuit filed by a taxpayer that was importing the goods before the Regional Court of the 4th Region.

The judgment of the Regional Court was in the sense that the possibility of customs review was restricted to the hypothesis of customs clearance performed through the green channel – when the goods are automatically cleared, without any verification.

As the decision was favorable to the taxpayer, the National Treasury appealed and the matter proceeded for consideration by the STJ.

The First Chamber of the STJ, responsible for re-analyzing the case, considered that the legislation governing the matter does not bind the tax authorities' right to review the regularity of the payment of taxes to a certain type of customs verification channel to which the goods have been submitted.

This understanding is aligned with the one already signed in the Second Panel of the Court, in the judgment of Special Appeal 1.201.845/RJ, in which it was decided that the first opportunity (customs verification) does not hinders the second (customs review) - which arises after customs clearance - in which the tax auditorwill revisit all acts practiced in the first procedure.

In this case, ministers adopted the premise that the Customs verification requires expedited analysis, because the goods are deposited on behalf of the taxpayer (with the burden of paying for surcharges) and, in addition, its permanence hinders the activities of the tax auditor, who needs to attend other customs clearances in the queue. Thus, it is legitimate that the inspection can review these acts practiced quickly (subject to the green channel).

In the case under discussion, the existence of Technical or Expert’s reports was not mentioned. The First Chamber of STF supported the decision on prior cases and the legislation only.

However, in that particular case, the situation differs from that discussed in the process analyzed by the First Chamber more recently. This is because, in the Special Appeal 1.201.845/RJ, the discussion concerns the beginning of the statute of limitation period, when the inspection does not make any requirement five days after the end of the customs verification. In such case, authorities only performed the analysis afterwards, based on the fact that through "examination in its Laboratory of Analysis, disputed the classification attributed at the time by the Appellant, considering as correct another classification".

The specific case examined at that time, therefore, differs greatly from what happens with many taxpayers, who, after carrying out extensive work with the customs supervision – red channel – to confirm the regularity of the tax classification of their products, are targeted with future audit procedure.

Although the Judgment of the Supreme Court was not subject to the Repetitive Cases systematic, the decision has the potential to negatively impact the processes that are already under discussion, especially in the judicial sphere.

In the administrative sphere, although currently the case law is not favorable to the taxpayer, the Special Appeal case mentioned above was judged before the extinction of the quality vote (therefore, it could have a different conclusion nowadays). Under CARF (second instance of the administrative court), the prevailing understanding so far is unfavorable to taxpayers.

For a better understanding of the situation: in the Administrative Proceeding 10314.732822/2013-04, judged by the Superior Chamber of Tax Appeals (CSRF), the decision was that customs clearance does not represent the hard confirmation of the taxes due or approval of the inspection, since this only occurs with the customs review (express approval) or with the course of the satute of limitation period (tacit approval). For this reason, customs clearance would not be cvered with sufficient legal value to be defined as a "legal criterion". However, in the case, the appeal was dismissed by a vote of quality (reason why nowadays it could have a different approach).

On the other hand, recently, the discussion has gained a chapter under CARF. In the trial of the Administrative Proceeding 10909.003996/2007-10, the 1st Panel of the 4th Chamber of the 3rd Section canceled a tax assessment aimed at the collection of taxes as a result of tax reclassification, on the grounds that the customs review is improper in the case of goods cleared through the red channel, where, by legal obligation, the responsible tax auditor shall confirm the composition and tax classification of the goods.

The result was a pro-taxpayer tiebreaker due to the extinction of the quality vote.

As the precedent of the STJ is not binding, for the processes that are still in discussion in CARF there is still a chance of the jurisprudence being reversed in favor of taxpayers.

However, the decision shows, once again, that the courts do not always adopt the same reasoning, leaving taxpayers at the mercy of discrepant decisions, without being sure how the outcome of their case will be, even if confirmed by the authorities themselves at a previous time.

^[1] REsp 1112702/SP, Rel. Minister LUIZ FUX, FIRST CLASS, judged on 10/20/2009, DJe 06/11/2009 – g.n.

REsp 1079383/SP, Rel. Minister Eliana Calmon, Second Class, judged on 18/06/2009, DJe 01/07/2009

Ag 918.833/DF, Rel. Min. José Delgado, First Class, DJ. 11.03.2008

[2] Process No. 12719.000127/2005-34, Appeal 344.510, Judgment 3102-00.684, 3rd Section, 1st Chamber, 2nd Ordinary Class, Session: 26.05.2010.

Process No. 10814.005331/2003-76, Appeal 139,812, Judgment 3202-00.023, 3rd Section, 2nd Chamber, 2nd Ordinary Class, Session: 14.08.2009.

Process No. 12466.004542/2002-33, Appeal 127,930, Judgment 301-30,892, 3rd Council of Taxpayers, 1st Chamber, Session: 01.12.2003

Category: Aviation and shipping

Fabio Falkenburger, Marina Estrella, Pedro Amim, Vitor Barbosa and Julia Souza Torres

Immediately after approval by the Federal Court of Auditors (TCU), the National Civil Aviation Agency (Anac) published, on June 6, the the notice to bid and concession agreement of the 7th round of airport concession, in addition to scheduling the public auction for August 18.

Clarifications about the documents may be requested from June 8 to 27, through an electronic form provided by Anac.

15 airports shall be conceded in three different blocks. The highlight is the Block SP/MS/PA/MG, which contains Congonhas Airport. Pursuant to Anac newsletter, the airports to be granted in the 7th round correspond to 15.8% of the domestic movement of passengers. The format of the concession of airports in three blocks and their minimum initial contributions and estimated values of contracts are:

• The General Aviation Block will be composed of the airports of Campo de Marte/SP and Jacarepaguá/RJ. The minimum bid (initial contribution) is R$ 141.4 million and the estimated value for the contract is R$ 1.7 billion.

• Block Norte II will be composed of the airports of Belém/PA and Macapá/AP. The minimum bid (initial contribution) is R$ 56.9 million and the estimated value for the entire contract is R$ 1.9 billion.

• The BLOCK SP/MS/PA/MG will be composed of Congonhas/SP, Campo Grande/MS, Ponta Porã/MS, Corumbá/MS, Santarém/PA, Marabá/PA, Parauapebas/PA, Altamira/PA, Montes Claros/MG, Uberlândia/MG and Uberaba/MG. The minimum bid (initial contribution) is R$ 740.1 million and the estimated value for the entire contract is R$ 11.6 billion.

The concession term will be of 30 years for all blocks. Extensions will only be admitted in extraordinary situations and for only another five years.

The notice to bit allows the participation of Brazilian or foreign legal entities, supplementary pension entities and investment funds, alone or in consortium. However, it does not allow the participation of a legal entity or its subsidiaries and controllers in more than one consortium to submit a proposal for the same block. Furthermore, airlines companies will not be allowed to participate in the concession, except as consortium members with less than 2%, considering the sum of their holdings.

As in the other rounds of airport concessions, the notice requires that the participant bidding alone or, if in a consortium, one of the members of this, is an airport operator that has operated an airport with the following minimum movements, in at least one of the last five years:

• For the General Aviation Block, 200,000 passengers or, alternatively, 17,000 aircraft movements (landings and takeoffs).

• To Block North II, 1 million passengers.

• For Block SP/MS/PA/MG, 5 million passengers.

As in the previous round, it shall be allowed to hire a technical assistant if the winning bidder does not meet the technical qualifications (airport operation qualification) required by ANAC. In other words, it will be possible to fill the qualifications requirements with the hiring of an airport operator to assist in the operational management of the block. To do so, it will be necessary to present a commitment to contract such a technical assistance, which shall be presented among the bidding documents. The technical assistant must meet the criterion of movement of passengers and aircraft listed above.

Originally Santos Dumont/RJ airport would be granted in the 7th concession round, however, amid political controversies and reformulations in the configuration of the concession, the airport will be conceded in the 8th round, scheduled for 2023, in the same block of Galeão /RJ airport.

Despite the absence of one of the ‘crown jewels’, the news of the confirmation of the 7th round is received by the market with much relief and enthusiasm. After all, the pace of concessions is maintained in a key segment for the recovery of the aviation sector, which seeks to reach pre-pandemic operating levels. Congonhas' presence in the package raises expectations around the round, which is likely to have fierce competition and generate high revenue for the government.

Category: Litigation

A controversy surrounding the rules of citrus production recently reached the Supreme Court (STF) through the Direct Action of Unconstitutionality (ADI) 7.045, filed by the Brazilian Democratic Movement Party (MDB). The action questioned the constitutionality of the requirement to produce citrus seedlings with substrate that does not contain soil,^[1] established in Article 28 of the Normative Instruction 48/13 (IN 48/13), the Ministry of Agriculture, Livestock and Supply (Map).

The court did not analyzed the merits of the ADI since Minister Carmen Lucia, rapporteur of the action, in December 2021, pointed out procedural defects and denied continuation, a decision that passed in judgment in February this year.

By the weight of this culture in the country's economy - Brazil is a world leader in the production and export of oranges and concentrated juice – it is worth making a brief history of the facts that serve as a context for the formulation of Article 28 of IN 48/13 and to evaluate whether the norm established by it hurts the Constitution.

The State of São Paulo concentrates the largest production of orange and orange juice in the world^[2]. It develops excellent work in the area of research and development,^[3] vital activity for the modernization of the sector and its adaptation to the growing regulatory requirements, both internally and externally. These requirements are expressed, for example, in state^[4] certification requeriments  of independent bodies.

Particularly in the citrus industry, there is an increasing demand for the quality of products and the way they are produced, in addition to the concern about the impacts on the environment and the way the social benefits of this activity are distributed.

Some of these issues were already somewhat present in the late 1990s when there was a change of technology in the installation and production of seedling nurseries and citrus seeds. The measure aimed to prevent the spread of diseases that impacted citrus production in the country and that could endanger the environment, and consumer health and impact the economy.

Until 1997, the production of seedlings for citrus planting in the state of São Paulo occurred in the open, which facilitated the spread of diseases, especially those whose contamination occurs directly through the soil.^[5] With Ordinance CATI-7/1998,^[6] the marketing and transport of rootstocks and citrus seedlings produced in this environment were prohibited, which contributed to containing the spread of diseases and pests.

Currently, all the production of citrus nurseries in São Paulo follows state and federal legislation on the subject and seeks to align with the technological and scientific advances achieved in the area.

Article 28 of IN 48/13 is part of this context. But, at the disposal that "the production of citrus seedlings will be allowed only with the use of a substrate that does not contain soil", is he in front of the Constitution?

At the federal level, Article 1 of the Law 10.711/03 establishes that the national system of seeds and seedlings, "established in accordance with this law and its regulation", "aims to ensure the identity and quality of the material of multiplication and plant reproduction produced, marketed and used throughout the national territory".

That is, there is an express legal authorization of regulation for infralegal acts. The same interpretation may be given to Article 23, Caput, and §4, which conditions the certification process of seeds and seedlings and production to compliance with "the relevant standards and standards".

In addition, Article 2 of the Federal Decree 10,586/20, which regulates Federal Law 10.711/03, establishes that the Map is responsible for "the edition of the complementary acts and norms provided for in this Decree".

Article 54, which states that the "seedling production process comprises the production of propagating material and the production of seedlings in the nursery or in vitro propagation unit, in accordance with the provisions of a complementary standard, shall also be noted, and is finalized with the issuance of the sales invoice by the producer", and Article 102, which provides that "commercial operations of export and import of propagating material shall be carried out in accordance with the provisions of this Decree and complimentary standard".

It is concluded, therefore, that the provisions of IN 48/2013 followed the federal legislation on the matter, before the express authorization for the Map to regulate the production of seedlings and seeds.

From the point of view of the Constitution, the Supreme Court has a consolidated understanding that the "constitutional text of 1988 is clear when authorizing state intervention in the economy, through regulation and regulation of economic sectors", provided that in accordance with the principles of the economic order.^[7]

For all this, it does not seem possible to affirm that Article 28 of IN 48/2013 violates Federal Law 10.711/03 or the Constitution and, therefore, would not fit the questioning under ADI 7045.

^[1] In 2017, the deadline for producers to meet this standard ended.

^[2] This concentration brings us a relevant data: for every five glasses of orange juice consumed in the world, three were produced in the country. Information on the citrus industry and the orange market can be found on the website of the National Association of Citrus Juice Exporters (CitrusBR). Available in: https:// https://citrusbr.com/estatisticas/. Access: 3.4.2021.

^[3] See the agronomic institute (IAC), which maintains in Cordeirópolis, interior of the state, the Sylvio Moreira Citrus Center, and also several partnerships with various associations and foundations.

^[4] In this scenario, the newly created "Seal More Integrity" Award, through Ordinance 402 of February 23, 2022, of mapa, is highlighted, aimed at rewarding companies and agribusiness cooperatives that develop good practices of integrity, ethics, social responsibility and environmental sustainability.

^[5] For example, the Phytophthora (Nicotianae Phytophthora, which is the common cause of rot of the foot and root, and Phytophthora Palmivora, which causes brown fruit rot, as well as root rot in poorly drained soils with high groundwater). Information available at: https://citrusbr.com/noticias/greening-prejudica-manejo-de-patogeno-na-florida/. Access: 2.4.2022. And nematodes, organisms of varying sizes and abundant in soil and water. Information available at: https://maissoja.com.br/o-que-sao-nematoides/. Access: 2.4.2022.

^[6] SÃO PAULO (State). Ordinance CATI 7, of February 10, 1998. Official Gazette of the State, Executive Branch, São Paulo, 13 Feb. 1998. Section 1.

^[7] "(...) the constitutional text of 1988 is clear when authorizing state intervention in the economy, through the regulation and regulation of economic sectors. However, the exercise of such prerogative must be adjusted to the principles and foundations of the Economic Order, in accordance with Art. 170 of the Constitution. Thus, the faculty granted to the State to create norms of state intervention in the economy (...) does not authorize the violation of the principle of free enterprise, the foundation of the Republic (art. 1) and the Economic Order (art. 170, caput) - (RE 422.941 - Rel. E. Ministro Carlos Velloso DJ 24.03.2006).