Publications
- Category: Labor and employment
In order to ensure the solidity, stability, and regular operation of the Brazilian Financial System, the Brazilian Monetary Council (CMN) issued Resolution No. 4,797/20 on April 7, establishing until September 30 of this year, among other issues, prohibitions on increasing the compensation of officers and members of the board of directors of financial institutions and other institutions authorized to operate by the Central Bank of Brazil (Bacen).
However, due to various questions regarding its implementation, on May 29 the CMN issued Resolution 4,820/20, which revoked CMN Resolution 4,797/20, reestablished the prohibitions determined, and extended them until December 31, implementing improvements in wording and clarifications.
As for the prohibition on the increase in compensation, the new resolution established that:
- financial institutions are prohibited from increasing the compensation, fixed or variable, including in the form of an advance, of officers and members of the executive board and audit committee;
- the amounts subject to this prohibition may not be the subject to future disbursement obligations;
- the concept of variable compensation includes bonuses, profit sharing, deferred compensation payments, and other performance-related compensation incentives;
- the variable compensation may not exceed, either in nominal amounts or in percentages, the compensation paid in the same period of the previous year; and
- increases in compensation, fixed or variable, whose concession procedures were completed before April 7, 2020, are not subject to this prohibition.
The scope and limits of the resolution have generated a number of questions and discussions among the institutions over the last few months. In order to clarify them, the Bacen recently published answers to frequently asked questions regarding the rule (FAQ), clarifying, among other points, that the prohibition on increasing compensation also includes simple readjustment for replacement of inflation or salary matching, even if provided for generically in the institution's compensation policy or defined in collective bargaining agreements.
Since then, much has been discussed regarding how to make the prohibitions imposed by the CMN, as clarified by the FAQ, compatible with the other legal obligations arising from collective bargaining related to the readjustment of salaries of employees of financial institutions subject to the supervision of the Bacen, applicable even to directors and officers hired as employees.
Could the CMN restrict the application of salary readjustments established in salary matching or defined in collective bargaining agreements?
Salary readjustment on the annual base date, as established by a collective bargaining agreement or agreement by means of free collective bargaining between the labor and trade unions representing professional and economic categories, respectively, is provided for by law[1] and constitutes a right guaranteed by the Federal Constitution to employees, due to the recognition of the validity and normative character of collective bargaining agreements.[2]
In this context, non-compliance with obligations established in collective bargaining agreements exposes institutions to labor claims and collective actions by labor unions representing their employees, who may request not only the payment of salary differences resulting from the non-application of the annual salary adjustment, duly adjusted for inflation and accrued interest, but also collective bargaining penalties and even potential indirect termination of employment contracts.
On the other hand, non-compliance with the restrictions imposed by CMN Resolution No. 4,820/20 exposes the institutions subject to the supervision of the Bacen to the penalties and measures provided for in Law No. 13,506/17.
In view of this situation, should the prohibitions established by the CMN remain in force in their current form, associations and trade unions representing the institutions subject to the supervision of the Bacen should negotiate with their employees' labor unions salary readjustments for directors and officers hired as employees that are compatible with the prohibitions of the resolution.
Among the possible paths to be adopted through collective bargaining for the application of the restrictions imposed, we envision:
- postponing the negotiation of the salary adjustment for this group of employees until a period after December 31, 2020; or
- establishment of permission for institutions to negotiate salary adjustments individually with this group of employees after December 31, 2020.
For now, however, all that remains to be done is to await the developments on the subject.
[1] Article 10 of Law No. 10,192/2001: Wages and other conditions relating to work continue to be fixed and revised on the respective annual base date through free collective bargaining.
[2] Interpretation of article 8, XXVI, of the Federal Constitution, and article 611 of the Consolidated Labor Laws.
- Category: Aviation and shipping
By Fabio Komatsu Falkenburger, Marina Estrella Barros, Vitor Guilherme da Silva Barbosa and Vittoria Psillakis Mickenhagen
The air sector was one of the hardest hit by the effects of the covid-19 pandemic. Domestic and international travel have become practically unviable due to the closure of borders and social distancing. Per data from the International Air Transport Association (Iata), worldwide demand for flights decreased 54% and 7.5 million flights were cancelled, leading to a reduction of more than US$ 419 billion in revenues and a loss of market value for all companies in the sector.
Airlines have high operating costs involving expenditures on fees paid to the government and airports, salaries, and maintenance of aircraft. In addition, the change in the price of the dollar during the pandemic increased expenditures on fuel and lease payments. The significant decrease in revenue and the rise in the dollar have severely affected the payment capacity of many companies, especially those in emerging countries, where currency variation is a major problem. To avoid even more serious consequences, some countries have developed financial rescue plans.
The United States government reached an agreement in April of this year to allocate $25 billion to bail out major U.S. airlines, including American Airlines, Delta, United, and Southwest. The intention is for 70% of the loan to be for the payment of employees, without the need to return the money. The other 30% would be reimbursed in 10 years. On the other hand, companies will not be able to dismiss employees until September of 2020 or impose wage cuts. In addition, the U.S. Treasury will invest approximately US$ 100 million in the acquisition of shares in the companies. Companies participating in the agreement must refrain from repurchasing shares or paying dividends until September of 2021 and must agree to executive compensation limits until the end of March of 2022.
Another example of a country that has established measures to mitigate the consequences of the current crisis in the air sector is Germany. Lufthansa, the largest national airline and one of the largest in the world, has lost market value, suffering a reduction of approximately 50% in the price of its shares traded on the stock exchange. The airline and the German government closed a 9 billion euro support agreement. The package takes into consideration the needs of the company and the taxpayers and employees of the Lufthansa Group. In addition to the loan, the German government is expected to become the company's largest shareholder by acquiring 20% of its shares in a transaction involving some 300 million euros. Even so, the company will maintain its private management, with minimal government participation in corporate management and limited voting rights.
The Italian government has decided that in order to maintain Alitalia it will need to adopt more drastic measures. The Italian airline was already facing great financial difficulties before the pandemic and in 2017 it was placed under state supervision. The government has announced that it intends to nationalize the company and invest large amounts to keep it operating without having to fire its employees.
Some countries in the Middle East are also already taking steps to help the region's major airlines. According to Iata, the loss for these companies should increase to US$ 4.8 billion in 2020. The Dubai government has already committed itself to supporting Emirates and injecting capital into the company, although it has not yet announced any specific amount.
Also in the Middle East, the Egyptian airline El Al Israel, which has extended its suspension of operations until June 30, has not yet received financial support and is still without capital to pay its debts and resume operations. El Al has sought government guaranteed loans worth $400 million to survive during the crisis. Of this amount, US$ 150 million would come from the purchase of shares in the company by the state and the remainder from a loan.
In Brazil, the air market situation is no different. According to the National Civil Aviation Agency (Anac), in May 2020 there was a 91% reduction in demand for domestic flights and 97.6% for international flights compared to May of 2019. Due to the impact of the pandemic on the sector, Brazilian airlines will also receive government support. The National Economic Development Bank (BNDES) will offer a line of financing through private financial institutions. The official figure has not yet been released, but it is expected to be between R$ 4 and 7 billion. According to the Ministry of Infrastructure, 60% of this amount will come from the BNDES, 30% from bond issuances in the market and 10% from private banks. Brazil's major airlines - Latam, Azul, and Gol - are still negotiating the terms of this package with the government.
The difference in amounts between the aid packages made available by the Brazilian government and those of other countries is significant. Brazilian airlines have suffered losses in the billions equal to or even greater than most international companies and depend on the contribution of these funds to get through the crisis and continue with their operation without resorting to local bankruptcy or reorganization mechanisms. Despite the scenario, the Minister of Infrastructure, Tarcísio Gomes de Freitas, says that the situation of Brazilian airlines is under control and that they are confident that the BNDES line of credit will be granted.
Considering the strategic importance of air transport service, timely government assistance, such as that adopted in other countries, is increasingly needed. The future of Brazilian airlines remains permeated with uncertainty.
- Category: Aviation and shipping
On July 8, the House of Representatives approved the new wording of Executive Order No. 925/20 (MP 925), which establishes emergency measures for the Brazilian air sector due to the covid-19 pandemic.
Initially published on March 18 of this year, the original wording provided for the possibility of extending the deadline for payment of fixed and variable contributions due from airport concessionaires and established a period of 12 months for reimbursement of amounts relating to the purchase of airline tickets. MP 925 was the first reaction of the federal government to try to prevent a collapse of the domestic air market, which was practically paralyzed due to movement restrictions imposed to contain the spread of the coronavirus.
With validity about to expire, MP 925 was approved by the House with some important inclusions and awaits consideration by the Federal Senate. If the final draft of authored by Representative Arthur Oliveira Maia is approved without amendment, the following provisions will be converted into federal law.
Fixed and variable contributions
The amounts from by the airport concessionaires as fixed and variable contributions and due this year may be paid up to December 18, 2020, with the updates due calculated based on the National Consumer Price Index (INPC). Mere postponement of the payment of contributions will not give rise to economic and financial rebalancing of the contracts by the federal government.
Reimbursement of air tickets
Refunds due for cancellation of flights between March 19 and December 31, 2020, may be made by airlines within 12 months of the date of the cancelled flight. Reimbursement may be replaced with the granting of a credit to the consumer for an amount equal to or greater than the amount of the ticket cancelled. The credit will be valid for 18 months and may be used by the consumer himself or by a third party to purchase products or services offered by the company.
Wherever possible, carriers must offer the possibility (i) of rebooking on a company flight or one operated by another carrier, or (ii) rebooking the ticket under the same conditions as the ticket originally purchased and at no additional cost. Consumers will also be allowed to choose (i) a credit for the amount corresponding to the ticket, without any penalties being applied, or (ii) to withdraw from the flight, in which case reimbursement must be made within 12 months, subject to any contractual penalties. In this case, if the withdrawal pertains to a ticket purchased seven days or more in advance of the date of boarding, and if it is done within 24 hours from the receipt of the ticket, the penalties will not be applied.
Changes to the Brazilian Aeronautical Code - liability for damage to passengers and cargo
The new wording brings in proposals to amend the Brazilian Aeronautical Code (CBA - Law 7,565/86) that were not contemplated in the original text of MP 925. It was suggested that a new article (251-A) be created providing that the compensation for non-economic damages resulting from failure to perform the contract will be conditional on the demonstration by the passenger (or shipper/consignee of the cargo) of the actual occurrence of the damage. If the proposal is not vetoed by the President of Brazil or modified by the Senate, claims for compensation for non-economic damages shall be subject to proof of their actual existence.
The text also seeks to amend the rule dealing with carrier liability in cases where delays occur due to force majeure or determination by the aviation authority. The new wording provides that the carrier shall not be liable for damages arising from delays only if it proves that, for reasons of unforeseeable circumstances or force majeure, it was impossible to take the measures appropriate and necessary. The requirement of proof of inability to adopt the measures does not exist in the current wording of the CBA.
A new paragraph is being proposed to define as unforeseeable circumstances or force majeure (i) landing and take-off restrictions due to weather conditions, unavailability of airport infrastructure, order by civil aviation authorities or other government authorities; or (ii) decree of a pandemic or publication of acts of government due to a pandemic.
Subsection I of article 264 of the CBA may also be amended. The current version exempts the carrier from liability for damage to cargo when it proves that the delay was caused by an order of the aviation authority or by facts the effects of which could not have been foreseen, avoided, or prevented. The House's suggestion is that such exemption should only occur in the event of the unforeseeable circumstances or force majeure highlighted in the previous paragraph.
Guarantee Fund for Length of Service (FGTS) for pilots and airline workers
In response to a request made by Caixa Econômica Federal, the Representatives inserted a provision stipulating that pilots and airline workers with an FGTS escrow account and who have their salary suspended or reduction as a result of the pandemic will be entitled to withdraw the funds, up to the limit of the balance existing in the account, in six installments of: (i) R$ 3,135.00, in cases of total suspension of salary, or (ii) R$ 1,045.00.
National Civil Aviation Fund (FNAC)
Another novelty is the proposed amendment to Law No. 12,462/11, which provides for the creation of the FNAC. The new wording provides that the fund's resources may also be invested in (i) the development, expansion, and restructuring of public concession airports, provided that the investments do not constitute an obligation of the concessionaires; (ii) the cost of any expenses arising due to civil liability vis-à-vis third parties, in the event of damage caused by acts of war or related events against aircraft registered in Brazil operated by airlines.
The biggest novelty, however, is the possibility of using the resources to guarantee loans taken out before December 31, 2020, by by airport concessionaires, regular air transport service providers, and ancillary air transport service providers that prove losses due to the pandemic.
A measure that was initially simple and emergency in nature was embodied in the amendments proposed by the House of Representatives. The health crisis caused by covid-19 has caused significant changes in the world aviation market, affecting labor relations, company business models, and commercial relations. Of all the possible changes to be implemented should MP 925 be converted into law, the most promising is the new rule regarding application of FNAC resources. The permission for them to be used as collateral is a positive signal to the market and may be crucial for the survival of some companies in the sector. Access to credit will certainly be less costly if banks and investors have their resources guaranteed by a fund with billions in assets.
MP 925 has already been referred to the Senate and is awaiting approval to be converted into law. The only certainty in the midst of chaos is that aviation will yet go through some turbulence.
- Category: Restructuring and insolvency
Challenged by the new reality imposed by the covid-19 pandemic, agencies making up the Judiciary have been issuing a series of acts and adopting a multitude of measures that seek not only to adapt the modus operandi of the Judiciary in Brazil to the social isolation rules, but also to provide alternatives that allow for the prevention or rapid and less costly resolution of disputes.
Among the solutions available for business conflicts, including those related to bankruptcy law, are the initiatives taken by different courts to encourage the use of mediation and conciliation.
The courts of appeal in the states of São Paulo and Paraná were pioneers in such measures. Already in April of this year they disclosed, respectively, GC Ordinance No. 11/2020 and the creation of a new modality of Judicial Dispute Resolution Center: the Business Reorganization Cejusc.
Along the same lines, on June 24th Normative Act No. 17/20, promulgated by the Rio de Janeiro Court of Appeals (TJRJ), was published and entered into force, aiming at the implementation of a special system for handling disputes related to business reorganization and bankruptcy, the RER, through which "businessmen, business companies," and "other economic agents" (article 1) may initiate procedures for mediating disputes arising from the covid-19 pandemic involving legal transactions for the production and circulation of goods and services.
Under the terms of Normative Act 17/20, the objective of the RER will be to promote mediation on issues related to bankruptcy law, both in the pre-litigation phase and in the midst of proceedings already initiated, regardless of the level of appeal in which they are being handled. This shall occur without the interruption of the action and deadlines provided for in Law 11,101/05 (LFR), unless there is a consensus between the parties or a supervening judicial order (article 2 and 13).
The following are included within the concept of "mediations on issues related to bankruptcy law”: (i) mediation between debtor and creditors regarding the ascertainment of claims and assignment of value to assets encumbered with a security interest in the respective incidental proceedings (article 2, paragraph 1); (ii) mediation between the debtor's partners and shareholders (article 2, paragraph 4); (iii) mediation regarding the participation of regulatory entities in the judicial reorganization process, in cases involving concessionaires or permissionaires of public services and regulatory agencies; (iv) mediation on lease disputes involving real estate of companies in economic and financial difficulty (article 2, paragraph 2); (v) regarding claims created during the period of effectiveness of the state of public calamity, even if the taxable event is subsequent to the filing of the petition for judicial reorganization, in order to allow the continuity of essential services of the company in difficulty or under judicial reorganization (article 2, paragraph 7); and (vi) involving creditors not subject to judicial reorganization, pursuant to paragraph 3 of article 49 of the Bankruptcy and Reorganization Law, or other non-bankruptcy creditors.
Within the scope of these mediations, and prior to the filing of any judicial reorganization, it will be possible to negotiate the amount of the debts and the forms of payment (article 2, paragraph 8). Furthermore, in the cases in which the petition for judicial reorganization has already been filed in court by several companies in the same economic group (by means of so-called procedural consolidation), agreements between creditors and debtors shall be permitted regarding whether there will also be substantial consolidation of the reorganization, breaching the asset barriers between such companies, where a single notice to creditors and the same plan for judicial reorganization shall be prepared, etc. (article 2, paragraph 3).
Mediations on classification of debt claims are prohibited and, in any case, renegotiation of judicial reorganization plans already proposed must observe the respective classes of creditors (article 3).
Settlements obtained through these mediations must not dispense with deliberation by the general meeting of creditors with respect to the matters required by law, nor may it set aside the control of legality to be exercised by the magistrate at the time of ratification.
Also according to the Normative Act No. 17/2020, requests for establishment of mediation must be accompanied by documents essential to understanding the dispute, containing a claim and cause of action necessarily related to the consequences of the covid-19 pandemic and observing the competence of the business courts (articles 8 and 9).
Such request should be sent to the Permanent Center for Consensus Methods of Dispute Resolution (Nupemec), of the TJRJ (e-mail
The initiative to implement a special arrangement that gives concrete tools to those who wish to seek a consensual resolution for certain disputes is positive not only because it is suited to the moment we are living, but also because it gives the parties an opportunity to truly consider and adopt the path of negotiation before starting litigation or even during the course of the bankruptcy process, which is often extremely lengthy.
This weighting is applicable mainly in the face of decisions such as the 2nd Circuit Court for Bankruptcy and Judicial Reorganizations of the District of São Paulo[1] rendered on the same date that Normative Act No. 17/20 was published. It proposes a re-reading of the right of access to the judiciary for companies in crisis, defending the idea that economic agents, when filing for judicial reorganization, must bear the burden of proving that they have engaged in prior settlement talks with their creditors, made reasonable proposals, without the measures adopted having been sufficient to reach a consensual resolution that would allow the crisis to be overcome. According to Judge Paulo Furtado, companies in crisis, in order to demonstrate their interest in the suit, should also prove that they considered resorting to out-of-court reorganization, a mechanism provided by the Bankruptcy and Reorganization Law which, although faster and less costly than a judicial reorganization, has not been much used.
The São Paulo court decision also appointed, since the beginning of the judicial reorganization process, a mediator to assist the group in reorganization in discussions with its stakeholders (banks, tax authorities, employees, public authorities, among others) in order to obtain adequate and quick solutions.
Faced with all these novelties, there is no doubt that the exceptional situation we are experiencing will pass, but that its impacts will leave lasting (perhaps eternal) marks on the way we deal with crises in general and the means of solving them, including conciliation and mediation, already provided for in article 3 of the New Code of Civil Procedure.
[1]Decision dated June 24, 2020, issued in Case No. 1050778-50.2020.8.26.0100 (judicial reorganization of the Enpavi Group).
- Category: Environmental
Instituted by Law No. 12,305/10, the National Solid Waste Policy (PNRS) defined as one of its instruments reverse logistics systems for the application of shared responsibility for product’s life cycles. Such systems consist of a set of actions, procedures, and means, after the use of products, to make viable the collection and return of solid waste to the business sector for reuse in its cycle, in other production cycles, or for another environmentally appropriate final destination.
The PNRS lists products and sectors subject to the obligation to establish a reverse logistics system, leaving open the possibility of expanding this list, considering primarily the degree and extent of the impact of the waste generated on public health and the environment, in addition to the technical and economic feasibility of the system. According to article 15 of Decree No. 7,404/10, reverse logistics systems may be implemented through three instruments, which cover the regulations issued by the public authorities.
Thus, on June 5, Decree No. 10,388/20 instituted the reverse logistics system for drugs, limited to those for domestic use that have expired or are in disuse, exclusively for human use, industrialized, and handled, in addition to their packaging, after disposal by final consumers. A commercial establishments are defined by the decree as a legal entity that offers these home remedies, while manufacturer has been widely regarded as the legal entity that manufactures or has manufactured home remedies, on its behalf or under its brand name. Thus, brand owners are also considered manufacturers, regardless of who is responsible for the manufacturing process itself.
With these definitions, the decree, in its article 6, presents the situations of non-application of reverse logistics of medications. We highlight the health services waste generators whose activities involve the stages of waste management from services related to human or animal health care, acupuncture, piercing, tattooing, beauty and aesthetic salons, clinics and medical and dental offices and personal hygiene products, cosmetics, skin care products, perfumes, and sanitizers.
The decree also creates the obligation to establish a reverse logistics system and gives guidelines for its implementation, enabling the hiring or creation of a management entity, a separate legal entity, with the objective of structuring, implementing, and operating the system. Adhesion to the management entities will be voluntary, and more than one entity may be created to implement the system. The management entity is not to be confused with the representative entity, which represents the interests of the private sector for collaboration, support, and assistance to companies.
When the decree enters into force (180 days after the date of its publication), phase 1 of the structuring and implementation of the reverse logistics system will begin. Within 90 days, entities representing manufacturers, importers, distributors, and traders of home medicines will establish a performance monitoring group responsible for monitoring the implementation of the system. After the group is established, within 90 days a mechanism will be structured for the group to provide information, through an annual report, on the volume of medicinal products that have been delivered in an environmentally suitable manner.
Phase 2 will start 120 days after completion of phase 1 and will include qualification of service providers, preparation of a communication plan, and installation of fixed points for receiving medicines. For better effectiveness, it is provided that expired or unused household drugs are managed as non-hazardous waste during the stages of disposal, temporary storage, transportation, and sorting, until the transfer to the treatment unit and environmentally appropriate final destination, provided that there are no changes in their physicochemical characteristics and that they are kept in conditions similar to those of the products in use by the consumer. Likewise, the decree exempts the activities of receiving, collecting, storing, and transporting these medicines from environmental authorization or licensing. The transport may be carried out by the same vehicle that distributes the medicine for sale.
Due to the particularities and risks of the products and in view of the hierarchy imposed by the PNRS for solid waste handling and management, the decree provides that the environmentally appropriate final destination of expired or unused household drugs should be, as a priority, incineration, followed by co-processing and, finally, class I landfill for hazardous products.
Pharmacies and drugstores will be considered fixed waste reception points and will be obliged to acquire, make available, and maintain container dispensers, in the proportion of at least one fixed point for every 10 thousand inhabitants, in municipalities with a population of over 100 thousand inhabitants. In addition, they must record and report on the waste transportation manifest the mass of waste received and, if necessary, make available a place for primary storage at the commercial establishment. The decree also sets the schedule for the acquisition of the dispensers, such that in the first two years of phase 2 they should be made available only in cities with a population of over 500,000 inhabitants.
Manufacturers and importers are assigned the obligation to transport the expired or unused household medications discarded by consumers at the secondary storage points to the environmentally appropriate treatment unit and final destination. This transport should be funded in a shared manner by manufacturers, importers, and logistics operators. The environmentally appropriate destination of the drugs, on the other hand, should be financed directly by the manufacturers and importers.
- Category: Social security
The discussion regarding the statutory limitations period applicable to actions for refund of amounts unduly paid to supplementary pension entities, based on unjust enrichment, is longstanding before the Superior Court of Justice (STJ). As a rule, the controversy lies in whether to apply the ten-year or three-year limitations period, provided, respectively, in articles 205 and 206, paragraph 3, subsection IV, both of the Civil Code of 2002 (CC/02).
Until recently, it was possible to state that the case law[1] of both private law classes of the STJ, based on the unjust enrichment of the entity, had been settled around the three-year period (article 206, paragraph 3, IV, of the CC/02), as decided by the 2nd Section in the judgment on Repetitive Topic No. 610/STJ, which addressed the issue from the point of view of health plan operators. However, the issue won another chapter before the STJ in June of this year.
By a majority, the 3rd Panel[2] found that the statutory limitations period for A refund is ten years (article 205 of THE CC/02), since enrichment of the pension entity had a legal issue as its cause, namely the prior contractual relationship with the plan participants. This would therefore not constitute a case of unjust enrichment, which would lead to the three-year statutory limitations period. At the time, Justice Ricardo Villas Bôas Cueva dissented and Justice Marco Aurélio Bellizze recused himself.
The 3rd Panel based its understanding on a precedent of the Special Court,[3] the highest body of the STJ, to the effect that "the discussion regarding the undue collection of amounts in a contractual relationship and undue payment does not fit within the three-year period, whether because the legal nature of the cause, in principle, exists (prior contractual relationship in which the legitimacy of the charge is discussed), whether because the action for refund of overpayment is a specific action.”
Although the case decided by the Special Court did not deal with undue charging for a supplementary pension, but rather for noncontracted telephone service, the Justice writing for the court, Justice Paulo de Tarso Sanseverino, found that the situation is similar, because, in the course of a benefit plan, there was undue charging of contributions, a refund of which was claimed.
In principle, the case decided by the 3rd Panel was classified as Representative Controversy No. 121/STJ[4] for potential assignment to the procedure for repetitive appeals, in order to reaffirm the STJ's guidance on the issue in a precedent qualified as being one of mandatory observance by the lower courts, under the terms of article 927 of the CPC/15. However, in the light of the Panel's amendment of the case law, the reporting judge rejected the indication of the subject as representative of the controversy.
Considering that the 4th Panel has precedents in the opposite direction of that of the 3rd Panel, the issue may be submitted to a procedure to resolve dissent by the 2nd Section, which is composed by both panels and has competence to standardize private law issues at the STJ. In this scenario, it is important to provide some comments on the new understanding of the 3rd Panel.
- According to Justice Ricardo Villas Bôas Cueva, "it is not enough for the claim to be based on a prior contractual relationship between the parties to call for the application of the ten-year limitations period." This is so because article 205 of the CC/02, since it is a residual rule, should be applied in an exceptional manner, only when it is found that there is no specific provision of law, which is gathered from the wording itself: “A time-bar occurs in ten years when the law has not set a shorter period."
In this sense, the Justice continues, it is necessary to examine the nature of the claim in order to define the statute of limitations applicable: (i) if it results directly from the contract, it is ten years; or (ii) if it does not have any direct relationship with it or constitutes a logical consequence of recognition of some nullity, in whole or in part, of the agreement entered into, it is three years.
- It cannot be disregarded that the 2nd Section, on three occasions, under the system for repetitive appeals, found for application of the three-year period in cases in which unjust enrichment arises from a prior contractual relationship, namely: a) claims of nullity of a readjustment provision for health care plans or insurance contracts (Topic No. 610/STJ);[5] b) claims to repeat indebtedness of a farm credit note contract (Topic No. 919/STJ);[6] and c) claims to refund amounts paid as brokerage commission (Topic No. 938/STJ).[7]
Despite the particularities of each case and the guidance that the theories defined in the repetitives appeals be applied exclusively in their specific scenarios,[8] the logic employed by the 2nd Section in the aforementioned repetitive appeals may be applied to situations involving supplemen tary pension plans, at least in relation to Repetitive Topic No. 610/STJ, cited in various precedents on the topic that defined as correct the statute of limitations of three years, with a basis on article 206, paragraph 3, IV.
In line with such precedents, since the claim is based on the absence of a legal cause for the collection of the contributions paid into the supplementary pension plan, even if there is a contractual relationship between the parties (termination of adherence), one should apply to the scenario the limitations period of article 206, pargraph 3, IV, CC/02, which sets at three years the limitations period for claiming compensation for unjust enrichment.
- The new understanding of the 3rd Panel indicates a change in the jurisprudential guidance of the STJ and, naturally, may be replicated in other cases. However, it is important to point out that, in the specific situation, Justice Marco Aurélio Bellizze, who cast the winning vote on Topic 610/STJ, recused himself from voting, which may have contributed to the result.
- In the case examined, the entity report the existence of at least 55 precedents from the STJ regarding an identical issue involving beneficiaries of State Law No. 4,819/58. The three-year limitations period was applied in all of them. Several of them have become final and unappealable, and in 16, it occurred after the filing of a motion to resolve dissenting opiniosn by the beneficiaries, which was duly rejected.
The sudden change in the Court's dominant stance, without any new fact from the social, economic, and/or legal point of view, compromises the stability of legal relations and goes against the legal obligation of the courts to keep the case law stable, complete and coherent (article 926 of the CPC/15).
In order to safeguard the rights of both the insured and entities that have lawsuits in progress, it would be prudent to submit the matter to the sieve of the 2nd Section of the Superior Court of Justice for it to review, or for it to maintain, the Court's understanding and potential incompatibility with the theories established in the repetitive appeals. If the case law is overturned, the possibility of relaxing the effects of the decision must be assessed, for the theory established to be applied only to appeals lodged after the publication of the respective appellate decision, in accordance with article 927, paragraph 3, of the CPC/15.
This is justified by the institutional role of the STJ in giving the final word on the interpretation of infra-constitutional law. It is clear that the change in its understanding represents a real change in the applicable normative act, the retroactive effects of which must be examined by the Court.
[1] AgInt no REsp 1674510/SP, opinion drafted by Justice Nancy Andrighi, Third Panel, decided on June 8, 2020, published in the Electronic Gazette of the Judiciary on June 10, 2020); (AgInt no AREsp 1.322.956/SP, 3rd Panel, published in the Electronic Gazette of the Judiciary on February 1, 2019), and (AgInt no REsp 1.717.109/SP, 4th Panel, published in the Electronic Gazette of the Judiciary on November 20, 2018.
[2] REsp 1803627/SP, opinion drafted by Justice Paulo de Tarso Sanseverino, Third Panel, decided on June 23, 2020, in the Electronic Gazette of the Judiciary on July 1, 2020.
[3] EREsp 1523744/RS, opinion drafted by Justice Og Fernandes, Special Court, decided on February 20, 2019, published in the Electronic Gazette of the Judiciary on March 13, 2019.
[4] The following were also qualified: REsp No. 1838337/SP; REsp No. 1838335/SP, and 1838334/SP, in order to define “the statutory limitations period for the repayment of contributions paid into the supplementary pension plan known as ‘Plan 4819,’ the illegality of which was recognized in court.”
[5] (REsp 1360969/RS, Opinion drafted by Justice MARCO BUZZI, written for an Appellate Decision by Justice MARCO AURÉLIO BELLIZZE, SECOND SECTION, decided on August 10, 2016, published in the Electronic Gazette of the Judiciary on September 19, 2016)
[6] (REsp 1361730/RS, Opinion drafted by Justice RAUL ARAÚJO, SECOND SECTION, decided on August 10, 2016, published in the Electronic Gazette of the Judiciary on October 28, 2016)
[7] (REsp 1599511/SP, Opinion drafted by Justice PAULO DE TARSO SANSEVERINO, SECOND SECTION, decided on August 24, 2016, published in the Electronic Gazette of the Judiciary on September 6, 2016)
[8] (REsp 1756283/SP, Opinion drafted by Justice LUIS FELIPE SALOMÃO, SECOND SECTION, published in the Electronic Gazette of the Judiciary on June 3, 2020)