NEWSLETTERS, ARTICLES AND MEDIA
NEWSLETTERS
Hightlights
In this issue, we highlight the approval of the Provisional Measure (MP), which changes the form for taxation of profits earned by Brazilian multinationals originating from foreign controlled companies and publication of Law No. 12964, amending Law No. 5859, adding Article 6-E.
Another important news item concerns Brazilian Environmental Protection Agency (IBAMA) Normative Ruling No. 3, which deals with new guidelines on completing and submitting the Annual Report on Potentially Polluting Activities and Users of Environmental Resources (RAPP).
Enjoy Reading!
Legal Bulletin
CIVIL LAW
The finance entity must deliver leasing release documents to the third party purchaser of the vehicle
The Fourth Panel of the Superior Court of Justice (STJ) ordered a finance entity, assignor in a leasing agreement, to provide to the purchaser of the vehicle the documents required for transfer of ownership of the asset with the State Department of Transportation (Detran), under penalty of a daily fine of R$200.
The decision was rendered by majority decision of the panel, which followed the opinion of Justice Luis Felipe Salomão in a case in which the appellant purchased a vehicle subject of a lease from another private individual.
The buyer assumed the remaining installments and paid off the vehicle. However, the finance entity did not provide the agreement release declaration necessary for the automobile to be transferred before Detran, alleging that it had not been notified of the sale, did not consent and had not given its express agreement with the assignment. (Special Appeal 1036530)
Registration of execution prior to the provisional remedy does not violate the stay in the special appeal
The Second Section of the Superior Court of Justice (STJ) dismissed the complaint which sought to suspend provisional enforcement of the judgment, which guarantees to three companies from Rio Grande do Sul compensation for default in a real estate development co-participation agreement.
At the lower court level, the compensation request was granted. The State of Rio Grande do Sul Court of Appeals decided that in addition to losses and damages the companies would also be entitled to the contractual penalty of 10% of the estimated contract amount for the development.
The probate estate of one of the sisters appealed to the STJ. The special appeal filed by the estate was received and is awaiting judgment. (Special Appeal 1187243)
CIVIL PROCEDURE
Statute of limitations must be calculated according to the most recent law
In case of succession of a law, the statute of limitations must be calculated according to the latest rule established by computing the elapsed time under the former law. The decision taken by the Second Panel of the Superior Court of Justice (STJ) modifies the decision by the Federal Regional Court of Appeals (TRF4). (Special Appeal 1434755)
PROCEDURAL AND MATERIAL LABOR LAW
Law No. 12964, of April 8, 2014
Published on April 9, 2014, Law No. 12964, which amends Law No. 5859 of December 11, 1972 to add Article 6-E, which provides regarding a fine for violation of the law on domestic work. This law shall enter into force after one hundred and twenty (120) days from its official publication.
4th Panel of the Superior Labor Court considers the appeal within the same term with the subsequent remanding of the records
“INTERLOCUTORY APPEAL IN THE MOTION TO REVIEW. ORDINARY APPEAL NOT HEARD. RECORDS REMANDED AFTER THE STATUTORY TERM. As there is a possible violation of Article 5, LV of the Federal Constitution, the Interlocutory Appeal is granted for processing of the Motion to Review. Interlocutory Appeal heard and granted. MOTION TO REVIEW. ORDINARY APPEAL NOT HEARD. RECORDS REMANDEDAFTER THE STATUTORY TERM. There is a curtailment of the right to a full defense when the appeal filed timely is not heard due to the remanding of the records by the attorney after the statutory term (Art. 195 of the Code of Civil Procedure). Motion to review heard and granted.”(Superior Labor Court - Motion to Review-244300-93.2009.5.02.0090, Rapporteur: MARIA DE ASSIS CALSING. Judgment Date: March 26, 2014, 4th Panel, Publication Date: April 4, 2014)
Regional Labor Court of the 3rd Region invalidates collective bargaining agreement rule determining that the time card can only be punched after the workers put on their uniform
“COLLECTIVE RULE THAT EXCLUDES THE RIGHTS OF THE EMPLOYEE. CRITERIA FOR INTERPRETATION OF THE RULE. It is true that the principle of right to contract freely between the parties enshrined in Article 7, XXVI of the Constitution of the Republic prevails. However, based on the criteria of interpretation of the rule, the predominant view is that the normative instrument, despite the force bestowed on it by the Constitution, can never supersede the law. To the contrary, it is subordinate and cannot strip the worker of a right ensured to him under the law except in extraordinary cases and even so the excluded right is offset with another, created by the collective rule itself, so that the employee is not harmed.”(Regional Labor Court - 3rd Region - Ordinary appeal -17th Region, Ordinary Appeal 01777¬2012¬107¬03¬00¬0, Rapporteur: ÉRICA APARECIDA PIRES BESSA. Judgment Date: April 4, 2014, 4th Panel, Publication Date: April 4, 2014)
SOCIAL SECURITY PROCEDURE AND LAW
Federal Supreme Court approves new Binding Precedent
The Federal Supreme Court (STF) unanimously approved on April 9, 2014 Binding Precedent 33, establishing up to the enactment of the complementary constitutional law regulating the constitutional provision on special retirement of public servants, that the same rules in force for workers subject to the General Social Security System shall be followed. The wording of binding precedent 33 will be as follows: “The General Social Security Regime rules apply to the special retirement under Article 40, paragraph 4, section III of the Federal Constitution, until publication of the specific complementary law”.
The Prosecution Office may act in defense of social security rights
“SOCIAL SECURITY AND CIVIL PROCEDURE. TERMINATION ACTION. BINDING PRECEDENT 343 OF THE FEDERAL SUPREME COURT (STF). INAPPLICABILITY. PUBLIC CIVIL ACTION. HOMOGENEOUS INDIVIDUAL RIGHTS. ELDERLY AND INCAPACITATED. PROSECUTION OFFICE STANDING TO SUE. SOCIAL INTEREST OF THE BENEFIT. CLAIM OF INADEQUATE PROCEDURAL MEANS ELECTED VIA REJECTED. ASSISTANCE BENEFIT. ARTICLE 34, SOLE PARAGRAPH, OF LAW 10741/03. 1. According to pronouncement 63 of the Court: ‘Binding Precedent 343 of the Federal Supreme Court is not applicable in termination actions dealing with constitutional matters’. Preliminary Defense Rejected. 2. Pursuant to the interactive case law of the Federal Supreme Court, the Prosecution Office is permitted to promote, through the collective action, the defense of individual homogeneous rights, because they are a form of collective rights, provided that the object of review has necessary social relevance. Moreover, Article 74, section I, of Law 10741/03, the Prosecution Office shall open the civil investigation and the public civil action for protection of diffuse interests and rights or collective rights, non-transferable individual and homogeneous rights of the elderly (page 34 of the electronic document 2).”(FEDERAL SUPREME COURT (STF) - APPEAL TO THE FEDERAL SUPREME COURT 788.838 RIO GRANDE DO SUL, Rapporteur: RICARDO LEWANDOWSKI. Single Judge Decision, Publication Date: March 25, 2014
TAX LAW
Court approves Provisional Measure that amends taxation of multinational companies.
The plenary session of the Court approved on April 2, 2014, the vote of Provisional Measure 627/13, which changes the form of taxation of profits obtained by Brazilian multinationals arising from its foreign controlled companies. Payment can be made in eight years, provided that 12.5% of the profit shall be incorporated into the balance sheet in the first year. The matter shall be referred to the Senate and shall lose effect if not voted by the 21st of the month.
The new rule attempts to resolve a conflict in the courts on the taxation of profits of controlled or associated companies abroad, given that the payment system may be chosen by the companies from January 2015, but Provisional Measure allows for anticipation to January 2014, with this option however will result in the acknowledgment of a debt.
Some rules were imposed in the Provisional Measure such as for the company to exercise the option under the new system, its controlled company cannot be subject to the sub taxation regime (less than 20% tax rate); must not be located in a country with favored taxation (tax haven); nor have active income equal to or greater than 80% of its total income.
Active income is itself defined by the Provisional Measure as that obtained directly from own business activity, excluding income from royalties, interest dividends or rents, for example. In case of merger, acquisition or closing of the company, for example, the payment of taxation must occur by the date of the event. Upon issuing the MP, the government estimated that the budget impact of the new system will be R$1.38 billion in 2015, R$1.52 billion in 2016 and R$1.67 billion in 2017. (Source: http://www2.camara.gov.br/camaranoticias/noticias/POLITICA/465213-CAMARA-APROVA-MP-QUE-ALTERA-TRIBUTACAO-DE-EMPRESAS-MULTINACIONAIS.html)
REGULATORY LAW
Bill No. 154/2014 is distributed to the CCJR - Constitution, Justice and Drafting Committee
In late March 2013, Bill No. 154/2014 was assigned to the São Paulo Legislative Assembly’s Constitution, Justice and Drafting Committee, which obliges manufacturers, importers, distributors and merchants of vegetable or animal oil and fat to structure and implement reverse logistics systems, through the return of the products after use by consumers, independent of the public service for urban cleaning and solid waste management.
The justification for creation of the bill given by Author, Representative José Bittencourt, is based substantially on pollution, under the justification that one liter of cooking oil pollutes about twenty thousand (20,000) gallons of water, according to data from Companhia de SaneamentoBásico do Estado de São Paulo (Sabesp).
These detrimental effects of incorrect disposal of vegetable or animal origin fats and oils motivated the creation of the Bill, because Federal Law No. 12305 of 2010, which establishes the National Solid Waste Policy does not include these types in the list, and thus it is appropriate for state law to supplement such list.
Thus, he justifies that the inclusion of vegetable or animal origin fats and oils and products that must be targets of reverse logistics is just the natural outgrowth of the expansion of the environmental protection system that has been practiced in the State of São Paulo. (Source:http://www.al.sp.gov.br/propositura)
Normative Ruling No. 3 of February 28, 2014
Normative Ruling No. 3 of the Brazilian Environmental Protection Agency (IBAMA) was published on February 28, 2014, which addresses the new guidelines on completing and delivering the Annual Report on Potentially Polluting Activities and Users of Environmental Resources (RAPP).
All the companies and potentially polluting activities and users of natural resources listed in Exhibit VIII of Law 6938/1981 (National Environmental Policy) are required to deliver the RAPP. The delivery of RAPP for the year 2013 will be in the period from April 1, 2014 to May 31, 2014. The breach of such deadline can generate fines that reach R$100,000.00.
The Law has been in force since its publication.
(Source: http://www.lex.com.br/legis_25330027_
INSTRUCAO_NORMATIVA_N_3_DE_28_DE_FEVEREIRO_DE_2014.aspx)
CRIMINAL LAW AND CRIMINAL PROCEDURE
Pending administrative proceeding discussing offset of tax debts does not suspend the criminal action.
CRIMINAL LAW AND CRIMINAL PROCEDURE. ART. 1, II, LAW No. 8137/90 - CRIMES AGAINST TAX SYSTEM - COMPENSATION OF DEBT WITH CERTIFICATE OF JUDGMENT DEBT OWED BY GOVERNMENT - SUSPENSION OF CRIMINAL ACTION - IMPOSSIBILITY - APPEAL GRANTED. 1. “The pending administrative proceeding in which a possible right of tax debt offset is discussed with any credits before the Tax Authority does not have authority to by itself suspend the course of the criminal action, as the tax credit on which the criminal prosecution rests is duly constituted. (Internal Interlocutory Appeal to the Panel in Special Appeal 1233411.DF, Reporting Justice JORGE MUSSI, FIFTH PANEL, decided on September 4, 2012, electronic Judicial Gazette of September 14, 2012,) 2. Appeal granted to determine the normal progress of the criminal action. (Superior Court of Justice (STJ) - Special Appeal: 1293633 DF 2011/0273584-1, Reporting Judge: Justice MOURA RIBEIRO, Judgment Date: March 25, 2014, T5 - FIFTH PANEL, Publication Date: Electronic Judicial Gazette of March 31, 2014)
Company is convicted for requesting a criminal record in the hiring process
CRIMINAL PROCEDURE. COVERT LISTENING DEVICE. PERFORMED BY ONE OF THE INTERLOCUTORS LACK OF KNOWLEDGE OF THE OTHER (APPELLANT HEREIN). UNLAWFULNESS. NON-OCCURRENCE. CRIMINAL ACTION. STAY. SUPERVENING ACTION FOR CONDEMNATION. REQUEST DISMISSED AS GROUNDLESS. MOOT. 1. It is settled before this Superior Court and the Federal Supreme Court that the covert listening device with the aim of protecting oneself against unlawful conduct does not require judicial authorization. 2. The request for a stay in the criminal action is moot in light of the supervening conviction of the defendant. Precedents. 3. Ordinary appeal dismissed as groundless and the remainder of the appeal denied. (Superior Court of Justice (STJ) - Habeas Corpus Appeal: 31356 PI 2011/0225222-0, Reporting: Justice MARIA THEREZA DE ASSIS MOURA, Judgment Date: MARCH 11, 2014, T6 - SIXTH PANEL, Publication Date: Electronic Judicial Gazette of March 24, 2014)
Trigueiro Fontes News
(i) Ana Carolina Ferreira de Melo Brito, partner of Trigueiro Fontes Advogados, was invited to teach a course on Civil Procedure in Practice and the New Code of Civil Procedure offered by INEAP - National Institute of Education and Professional Improvement in Recife-PE.
(ii) Pedro de Franco Carneiro Franco, partner of Trigueiro Fontes Advogados, coordinated the Environmental Law Study Group of FIESP, which discussed sustainability as a competitive factor.
(iii) Luciano Coelho, lawyer at Trigueiro Fontes Advogados, was invited to teach courses in Public and Private International Law at FAMETRO (Faculdade Metropolitana de Manaus).
(iv) Pedro Franco Carneiro and Ana Paula Maia, partners of Trigueiro Fontes Advogados, participated in the CIESP business round in the city of Vinhedo/SP.
(v) Rodrigo Chauvet, partner of Trigueiro Fontes Advogados, was invited by PUC/RJ to teach classes in the Economic Administrative Law II Course.
(vi) Trigueiro Fontes’ Rio de Janeiro office hosted the 1st Meeting of the Administrative Law Study Group, which aims, among others, to study administrative law.
EDITORIAL BOARD formed by members: Cintia Michelle Pinheiro, Paula Leonor Mendes Fernandes Rocha and Mariana Vianna Martinelli, coordinated by partner Miriam Nascimento Carreira. The information disclosed herein does not necessarily represent the opinion of the Firm. Dissemination restricted to Firm clients or related persons. Dissemination authorized provided that with indication of the source.
