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October 2008
Number: XXXI

This month’s newsletter highlights the ruling of the 7th Panel of the Higher Court of Labor (TST), which establishes that contributions to the INSS shall be calculated on the basis of the agreed sum, whether or not this agreement has been reached subsequent to the case having been settled in court.

In addition, it draws attention to two rulings of the Supreme Court (STF), the first compelling service-providers to pay COFINS and another that provides exemption from the need for a CND under some circumstances.

It also reports on the new rulings of the Higher Court of Justice (STJ) in the light of the new law on multiple appeals. The relevance of this lies in the fact that, when a special appeal has been lodged by multiple plaintiffs, all the other similar cases will be suspended. After a ruling on the first case is reached, appeals that are identical in substance may be considered individually by special jurisdictions and the courts should review those rulings handed down that are in disagreement with the suspended cases.


National Association for Sanitary Surveillance (ANVISA) “Blank form” for Certificados de Livre Prática (CLP) is suspended The National Sanitary Authority (Anvisa) has, as of October 6th 2008, suspended the system which allowed the issuing of the Federal Collection Form (Guia de Recolhimento da União) with the sum of zero and the use of a single inspection fee for the issuing of many CLPs within a period of 90 days.		ENVIROMENTAL LAW New law on the scientific use of animals Published on the 8th October 2008, Law n° 11.794, which regulates Article 225, § 1º, clause VII of the Federal Constitution, lays out the procedures to be followed when using animals in scientific experiments.

ARBIRATION Claim of Exemption The 3rd Panel of the Higher Court of Justice (STJ) has rejected the claim of exemption, on the grounds that the commencement of a lawsuit impedes the ability to abide by a contract. The Higher Court of Justice considered the request made to the court not to include the sum retained and declared that the lawyers’ fees are due, should exemption be granted or not, so long as there is an adversary. (RESP 944.917/SP)		Owners of listed buildings altered prior to acquisition are exempt from the obligation to restore them The 1st Panel of the Higher Court of Justice (STJ) exempted the new owner of a building listed in 1938 from the obligation to rebuild it as it was at the time of being listed. The Court understood that because the acquisition occurred almost 30 years after the character of the building was substantially altered, the owner is not obliged to restore the original features.

LABOR LAW TST Electronic Publications Since October 1st 2008, the Higher Court of Labor has been making its publications available exclusively through the Electronic Justice Register. The sum agreed in a labor settlement prevails over ruling regarding calculation of INSS The 7th Panel of the Higher Court of Labor has ruled that in labor-law suits, when the parties reach an agreement after the ruling, irrespective of whether an employee/employer relationship has been acknowledged, contributions to the INSS will be based on the sum agreed in the negotiation. (RR 648/2003.055.15.00-3)		PROCEDURAL LAW Dispensation granted with regard to notification of objection to compliance with a court order, where a deposit has been made in court The time limit within which a debtor must notify his or her objection to a compliance with a court order begins at the time when a deposit of the contested sum is made in court. In view of this, the 3rd Panel of the Higher Court of Justice (STJ) has granted dispensation regarding notification of objection to compliance with a court order, as is already deemed to have occurred when the sum of the debt was deposited.

TAX LAW COFINS contributions for service providers The Supreme Court of Justice (STF) has ruled that service providers associations regulated by law will have to pay the Contribuição para Financiamento da Seguridade Social (COFINS), as the Court understood ordinary law to be subordinate to supplementary law, because there is no hierarchy between such laws, only different powers of jurisdiction. The decision to stipulate a timetable for the implementation of the new regulation was not approved. (RE 377457 e 381964) Exemption from the CND In ruling on Direct Unconstitutionality Lawsuits 173 and 394 (ADIs), the Supreme Court of Justice understood that taxpayers who wish to move abroad, register or alter contracts, as well as register contracts in registry offices no longer need to show the Debt Clearance Certificate (CND).		Election of forum for commercial representation The 4th Panel of the Higher Court of Justice (STJ) has ruled that, notwithstanding the fact that a litigant company may be larger than the other, if both are able to defend themselves adequately in the district established in the contract of commercial representation signed by both parties, the contract (including adhesion contracts) must be followed. (REsp 540.257-RS) First judgments on multiple appeals Based on Law n° 11,672/2008, the 2nd Panel of the Higher Court of Justice (STJ) decided that telephone companies may charge customers for providing information on data from company statutes. In a second ruling on the new law, the 1st Section of the Court rejected the payment of Income Tax on monies supplementary to pensions and withdrawals from such contributions for a private pension. (REsp 1.012.903)

Manager owes Income Tax (IR) for profit sharing The Higher Court of Justice (STJ) has ruled that the participation of managers taking part in corporate profit- sharing schemes constitutes participation in results and tax is therefore payable on this under the provisions of article 2° of Decree Law 1,814/1980. The provision laid out in article 10 of Law n. 9,249/1995 (exemption from income tax on distributed profits) was not applied because the company and the manager are different parties and so a distinction between the corporate and the managers’ earnings can be made. (REsp 884.999-BA).		ABRIDGEMENT Abridgement N. 361-STJ. A notification of a formal decision to file for bankruptcy on the part of an indebted company must show the name of the person who received it.

This month, the articles “Privatização dos Aeroportos Brasileiros – boa ou má notícia”, by Viviane Moreno Lopes and“Pedidos de restituição: uma análise à luz do decreto-lei nº 7.661/45 e da lei nº 11.101/05”, by Jussara Barros de Araújo, can be consulted at www.trigueirofontes.com.br.

Roberto Trigueiro meets the Governor of Pernambuco at AMCHAM/São Paulo

As honorary member of AMCHAM/PE, Mr. Roberto Trigueiro Fontes chaired the debate staged by the American Chamber of Commerce in São Paulo, with participation of the Governor of Pernambuco, Mr. Eduardo Campos, and Mr. Luiz Delfim, Vice-President of the Regional Board of AMCHAM/PE.

3rd Brazilian Congress of Law Firms

Trigueiro Fontes’ labor law adviser, Mr. Antônio J. Peres Picolomini gave a talk at the 3rd Brazilian Congress of Law Firms, organized by the Law Firms Union of the States of São Paulo and Rio de Janeiro. Mr. Antonio Peres spoke about the legislation regarding the contracting of staff in so far as it applies to law firms and he also acted as master of ceremonies for the Closing Speech of the Congress delivered by the Supreme Court Judge, Marco Aurélio Mello.

AMCHAM/PE pays homage to Trigueiro Fontes Advogados.

One of our partners, Juliana Oliveira de Lima Rocha, represented the firm at a luncheon party held by AMCHAM/PE. On the occasion, tribute was paid to the firms with the best attendance at the meetings of the Chamber of Commerce in the first semester and Trigueiro Fontes Advogados received a letter of acknowledgment.

CESA/BA meets the President of the TJBA

Lawyer Henrique Silva de Oliveira and other members of the Bahia branch of Centro de Estudos de Sociedades de Advogados (CESA/BA) met with Chief Justice of the Court of Justice of Bahia, Dra. Silvia Zarif, to offer support in improving the work of the Judiciary.

Removal of bureaucratic procedures and export barriers are debated at FIEPE

One of our partners, Ana Carolina F. de Melo Brito, representing the OAB/PE, was present at the launch of a study outlining the main hindrances to the competitiveness of exporters and to the “Cutting Red Tape Program”, which seeks to improve the business environment in Brazil.

EDITORIAL BOARD composed of members Vanessa Arruda, Antônio Carlos Acioli and Luiz Gustavo Meira Moser, coordinated by partner Ana Carolina Brito.

The information disclosed herein does not necessarily represent the Firm's opinion. Disclosure limited to the Firm's Client's or persons connected thereto. Disclosure authorized subject to indication or origin.

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