Abstract
This contribution describes some of the Brazilian instruments used for collective redress, pointing out their main features and uses. It explains the origins of the Brazilian “class action” (currently named ação civil pública) and the relation between this action and the so-called “popular action” (still in use, but with a more restricted field of application and less effectiveness). The contribution focuses on the practical use of these instruments, outlining some jurisprudential restrictions and data, which may be useful to emphasize the importance of mass and collective litigation in Brazil. It also presents a critical analysis of the Brazilian judicial system, particularly focusing on the new Code of Civil Procedure, and the so-called “system of precedents” created by the new Code. Finally, it deals with a number of the features of this Code, presenting some of the new tools developed to face mass and complex litigation in the Brazilian system, particularly underlining the function of precedents and of the Brazilian “ancillary proceeding for solving repetitive questions”, a tool similar to the English Group Litigation Order which allows for the collective management of claims on related issues of law.
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Notes
- 1.
- 2.
Normally, in Brazil, the party that loses the case must pay the costs of the opposing party’s attorney. This is called “succumbency” (sucumbência, in Portuguese), which can be freely translated as burden of defeat or loss of suit expenses. In popular actions, the rule of succumbency does not operate.
- 3.
The only case in which such a request can be denied is in the case of public interest, properly justified.
- 4.
In this case, any citizen can initiate another popular action, provided that he presents new evidence.
- 5.
This Act has been amended many times since its introduction, permitting, nowadays, the protection of any diffuse or collective right.
- 6.
About the public civil action, see also Marinoni et al. (2017), Arenhart et al. (2017), Venturi (2007), Mancuso (2016a), Gidi (2008), Mazzilli (2000), Milaré (2015), Mendes (2014), Souza (2017), Almeida (2011), Lenza (2003), Vigliar (2001), Dinamarco (2001), Carvalho Filho (2007), Zaneti (2006), Leonel (2016), Rodrigues (2009).
- 7.
Although the civil inquest was designed as a tool only for the Public Prosecutor’s Office, the agreement mentioned in the text was not. The “conduct adjustment agreement” (termo de ajustamento de conduta) can be used by all the public organizations allowed to initiate a collective action in Brazil. Nevertheless, the most common user of this tool is the Public Prosecutor’s Office.
- 8.
See, Sect. 4.2.
- 9.
São Paulo is the richest and most developed state in Brazil, and this is the reason for choosing it when discussing these mechanisms.
- 10.
The CEBEPEJ—a private organization, also dedicated to gathering information and planning actions in the field of the judicial branch—has some interesting data. According to research conducted between 2002 and 2006, in São Paulo, the Public Prosecutor’s Office was able to execute 8553 agreements (4899 of them were accomplished voluntarily, without need of enforcement). Just to compare these numbers, it is interesting to note that in the same period the São Paulo Public Prosecutor’s Office initiated 12,216 public civil actions (while other entities—that have locus standi in collective protection—initiated 1899 actions). As may be noted, the number of consensual solutions was very high, almost equaling the number of collective actions initiated.
- 11.
More recently, this Act was modified to establish that collective res judicata only operates within the limits of the court’s jurisdiction (e.g., in the city, the state or the region that it has authority over; we will return to this subject further on).
- 12.
- 13.
The expression is widely used in Brazilian doctrine and courts to represent the systemic view of all the Acts that deal with collective protection. In fact, the two statutes indicated in the text are just the main sources of Brazilian collective redress. Many other Acts discuss diffuse rights, such as the Children Protection Act, the Elderly Protection Act, the Writ of Mandamus Act and the Investor Act. All these statutes shall be interpreted as though they belong to a single unity. This is the idea behind the “microsystem” mentioned in the text.
- 14.
Mass rights are referred to by the Act as “homogeneous individual rights” (direitos individuais homogêneos). Nevertheless, they are better defined as the typical mass rights that authorize, in the USA, the use of class actions.
- 15.
- 16.
The difference between these two categories is, from my point of view, irrelevant and should be abolished. Despite this, it is used by the Writ of Mandamus Act to narrow the use of collective writs, which, according to the Act, may not be used to protect diffuse rights. The rule’s constitutionality is doubtful, and it is one of the few cases where the distinction may be of some use.
- 17.
Brazilian doctrine usually makes a distinction between the protection of collective rights (diffuse and collective rights) and the collective protection of individual rights (homogeneous individual rights), although the public civil action may protect both kinds of interests.
- 18.
The requirement of this prior existence, for more than a year, may be disregarded by the judge, in consideration of the relevance of the case or the interest protected.
- 19.
Using the same criteria employed by the Public Civil Action Act, if no individual presents himself to claim enforcement of the judgment in his own benefit, the amount of the award shall revert to the public funds, designed for the protection of diffuse and collective rights.
- 20.
It is true, however, that the Superior Court of Justice—the higher court in interpreting federal law—stated, in a binding judgment, that the initiation of a collective action implies the automatic suspension of all individual actions on the same subject. This is not the rule present in the CDC, but an attempt to give more power to collective actions, clearly exceeding the legislative will.
- 21.
The same effect is given to criminal judgments, which can also benefit possible victims.
- 22.
There is a huge debate about the constitutionality of this “in utilibus” transfer, especially because the subject-matter of the collective action is the diffuse or collective right (and not individual rights). Nevertheless, if the idea of issue preclusion (presently adopted by Article 503 of the Code of Civil Procedure) is correctly understood, there is no more room for this question.
- 23.
A modification was introduced in Article 16, L. 7.347/1985, establishing that res judicata, in public civil actions, shall be limited to the territorial jurisdiction of the court that decides the case. Doctrine fiercely criticizes the rule, pointing out either its unconstitutionality, or its lack of technique, or its irrationality. Obviously, such a rule can only be related to homogeneous individual rights, since diffuse and collective rights are indivisible and cannot be divided per jurisdiction. As for mass rights, the purpose of offering collective protection is precisely to preserve equality and to avoid repetitive litigation. This being so, there is absolutely no reason for the restriction just mentioned (except the intention to reduce the effectiveness of collective actions).The issue is still open for debate in Brazilian courts. The Superior Court of Justice tends to state (and has decided in this sense sometimes) that, although the rule is constitutional, it only relates to homogeneous individual rights and, whenever the collective action is initiated in a State capital, those limits do not apply and the judgment can affect individual interests all over the country.
- 24.
That is the reason for some important amendments, such as the one mentioned above—the limitations to res judicata—or Article 2-A, L. 9.494 (introduced in 2001), which imposes severe restrictions to collective actions managed by associations, particularly against federal, state or municipal governments.
- 25.
- 26.
Despite this number, the report mentions that 63% of the people who had a dispute in 2009 did not seek judicial relief. This shows the level to which the reputation of the judicial system has been brought into disrepute, a state of affairs caused mainly by its costs, its delay and its bureaucracy.
- 27.
The data are taken from the national report on litigation, available at http://www.cnj.jus.br/programas-e-acoes/pj-justica-em-numeros. Accessed 7 June 2018.
- 28.
“Second appeal” is an expression used in this text to refer to an appeal directed to a Brazilian superior court, either in case of violation of federal law or in case of violation of the Constitution. Mainly, it represents an extraordinary appeal, which concerns the standardization of the interpretation of law, rather than reexamining all the questions of the case.
- 29.
The data are taken from the Brazilian National Counsel of Justice (http://cnj.jus.br/noticias/cnj/79833-mecanismos-auxiliam-na-reducao-de-recursos-ao-stj. Accessed 7 June 2018). The data compare the number of second appeals received by the Superior Court of Justice from 2005 until 2014. The repetitive second appeals mechanism was first used in Brazil in 2008, and it is possible to see the impact of its use in managing the cases under this court’s jurisdiction.
- 30.
The new Code of Civil Procedure—trying to overcome a number of flaws of the earlier regulation—provides several criteria for selecting the cases which may be brought on appeal and helps to distinguish cases; it also offers some guidelines by which to determine the participation of the interested persons in the judgment.
- 31.
- 32.
- 33.
These reasons, in Brazil, are normally provided for important statutes and can be used for the interpretation of these laws. The reasons underlying the Code of Civil Procedure are available at https://www2.senado.leg.br/bdsf/bitstream/handle/id/512422/001041135.pdf?sequence=1. Accessed 7 June 2018.
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Arenhart, S.C. (2018). The Brazilian Collective Redress System. In: Uzelac, A., van Rhee, C. (eds) Transformation of Civil Justice. Ius Gentium: Comparative Perspectives on Law and Justice, vol 70. Springer, Cham. https://doi.org/10.1007/978-3-319-97358-6_13
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