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August 2009
Number: XXXXI |
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In this month’s edition, we highlight the publication of the new Writ of Mandamus Law that passed into law on 8/7/2009, revoking the previous law. In the legislative alterations plan, our newsletter also informs alterations in the Civil Procedural Code and Consumer Code.
There is also an important decision related to maintenance handed down by the Federal Supreme Court (STF) regarding the “Correios” monopoly for the postal service.
We have also included the new deposit amounts for appeals for the filing labor claims, published by the Superior Labor Court (TST) and that shall be effective on 8/1/2009. Companies should comply with such alteration in order to avoid decisions that are judged as vacated appeals.
Enjoy the reading. |
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CONSTITUTIONAL LAW
New Writ of Mandamus Law
On 8/7/2009, Law No. 12.016/09 passed and will regulate procedures for filing a writ of mandamus as set forth in Article 5, Items LXIX and LXX in the Federal Constitution. Drawn up by the Presidential Staff, the new law, among other alterations, will put on grant enforcement authority to agencies in political parties and administrators of self-regulating governmental bodies as well as directors of legal entities and individuals when carrying out their public service duties. Among those entitled to file a collective writ of mandamus will be political parties with representation in Congress, unions and trade associations created at least one year ago.
STF Decides to Maintain “Correios” Monopoly
By a majority vote the STF dismissed a motion for Arguments on Non-Compliance with Fundamental Precepts No. 46 (ADPF No. 46) filed by the Brazilian Association of Distribution Companies (ABRAED) in order to impede the monopoly of the Empresa Brasileira de Correios e Telégrafos (ECT) in the postal service. (ADPF/46). |
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CIVIL LAW AND CIVIL PROCEDURE
New Changes in the Consumer Defense Code
Article 31 in the CDC will now be in effect with a sole paragraph that sets forth provisions on information on refrigerated products offered to consumers, due to the modification introduced by Law No. 11.989/09 published in the Federal Daily Gazette (DOU) on 7/27/2009.
Priority Extended in Procedures
In order to extend priority in processes for judicial and administrative proceedings for the elderly and disabled persons, Law No. 12.008/98 published in the DOU on 7/30/2009 amended Articles 1.211-A, 1.211-B and 1.211-C in the Civil Procedural Code and added Article 69-A to Law No. 9.784/99, which regulates administrative proceedings under the auspices of the federal government administration.
STJ Unable to Judge in a Common Appeal the Merit of a Writ of Mandamus Extinguished at the Source
The Superior Court of Justice (STJ) cannot judge in a common appeal the merit of a writ of mandamus extinguished at the source without judging the merit. The 2nd Panel understood that the similar application of the “theory of the mature case” contained in Article 515, §3 in the Civil Procedural Code, which authorizes the court to examine, for the first time, the merit of an action on which there is initially a revision function, is forbidden by the Federal Constitution (RMS 27017) |
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SOCIAL SECURITY LAWS
The STJ vetos the hybrid retirement system with benefits from diverse laws
It is impossible to jointly apply retirement benefits set forth in different laws. For the 5th STJ Panel it is unlawful to apply rules that establish in one a higher ceiling and in another a more advantageous updating. The reporting judge for the appeal, Justice Jorge Mussi, explained that the application of the rule in force at the time of obtaining retirement rights is valid for both the benefit ceiling as well as for its revisions, including in relation to the method of determined the benefit salary. (Special Appeal 1106893) |
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COMPETITION LAW
The SDE Issues a Complaint Analysis Form
On 7/3/2009, the Economic Law Secretariat with the Ministry of Justice (SCE) issued SDE Directive No. 51 that grants the Competition Violation Complaint Analysis Form. The document include the main competition violations in bidding proceedings, among which are collusion among bidders or cartels, “blocking” in trade floor sessions, consortiums among competitors to participate in bidding proceedings and the operation of trade associations and labor unions in cartels or facilitating practices. In addition, examples were given that initially are being defined in Law 8.884/94, but affect competition laws because they are contrary to juridical precepts, such as defrauding micro-companies or small business statutes, active and passive corruptions and overpricing. |
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TAX LAW
Interest to be charged on CPMF Payment Not Withheld Due to Injunction Later Cancelled
Default interest and fine on CPMF tax collected after cancellation of the injunction that impeded its collection. The understanding of the 1st STJ Panel is that after the injunction was cancelled, taxpayers must comply with the obligation in all legal effects required as a result of delay caused by the suspension, whose cancellation has retroactive effects (ex tunc). (AgRg in Ag 1093332)
Indemnification not Taxed
The 2nd STJ Panel understood that the amounts received as indemnity for moral or material damages shall not incur income tax since they do not imply in generating wealth. An indemnity does not increase the net worth of the injured party, but provides compensation in cases of moral damage through monetary substitution. (REsp 1068456) |
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LABOR LAW
Temporary Stability Impedes Adherence to PDV
The SDI – 1, when judging the ERR- 37428/2002-902-02-40, understood that an employee with temporary stability due to an occupational accident may not adhere to the Voluntary Dismissal Plan offered by the company (PDV).
No Moral Damage in Investigation against Employee
The 8th TST Panel judged that conducting an investigation on the financial operations in a bank account by one’s employer bank does not characterize the existence of moral damages in cases in which the bank employee requests a loan in his/her capacity as a client. For the TST, the investigation does not configure breaking the claimant’s bank secrecy, who sought to renegotiate a debt, buy only an internal and predictable procedure resulting from the commercial activity developed by the employer. (RR 1310/2003-035-12-00.0) |
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ENVIRONMENTAL LAW
STJ Upholds Ruling Prohibiting Burning Sugarcane Bagasse
The 2nd STJ Panel upheld a ruling by the São Paulo Court that prohibits burning bagasse as a preparatory method to harvest sugarcane in the interior of the State of São Paulo. Producers alleged that the decision violated Article 27 in the Brazilian Forest Code (Law No. 4.771/65), which prohibits the use of fire in forests and other forms of vegetation, but sets forth an exception: it authorizes the use of fire if local or regional peculiarities justify such practice in agrarian and forest activities. At any rate, the law establishes that the government must grant permission for burning. However, the Panel understood that the legal proviso does not apply to industrial activity and considering the need for sustainable development, today there are modern instruments and technologies that may substitute burning without harming this economic activity. (REsp 1094873) |
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Advertisement on Employee’s Uniform Not to Be Indemnified
The 6th TST panel, when judging the RR-657/2006-001-01-00.1, understood that the use of advertising on the uniform of an employee at a retail company shall not bring about indemnification for moral damages. According to the ruling of Reporting Justice Aloysio Corrêa da Veiga, there is no abuse of any law or any illegal act by the company when the uniform delivered to employees contains advertising “as a method of communication with consumers in order to influence the sale of its products while at work and during working hours.”
New Appeal Deposit Amounts
The TST disclosed a new table for the amounts related to appeal deposit limits, as per Article 899 in the CLT. To file a common appeal the amount will be R$5,621.90 and for reviewing an appeal, motions, special appeal and appeals in severance pay claims, the amount will be R$11,243.81. The new amounts will become effective on 8/1/2009. |
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This month you may read the articles “PRELIMINARY HEARING”, written by the reviser in the Civil and Arbitration areas, Fábio de Possídio Egashira and “WIND ENERGY: GOOD WINDS BLOWING FROM RIO GRANDE DO NORTE”, written by Carlos Rosemberg Fernandes Jr., Unit Coordinator at Natal/RN. |
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Trigueiro Fontes Honored at AMCHAM/PE
The American Chamber of Commerce in Recife (AMCHAM/PE) held a lunch to honor the companies that most participated in the Chamber’s events in the first half of the year, as TRIGUEIRO FONTES was one of the 15 companies that participated the most. At the event, the partner Juliana Oliveira de Lima Rocha represented the firm.
Units in NATAL and RIO DE JANEIRO Change Address
The regional offices of TF Attorneys, located in Natal, RN and Rio de Janeiro, RJ, and commanded by Carlos Rosemberg Fernandes Júnior and Ana Paula Sá Borges, respectively, will have new addresses as of the month of July, which may be verified at www.trigueirofontes.com.br. The changes of address seek to expand the area available and increase the quality of the installations due to the significant growth experienced by both offices
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EDITORIAL BOARD composed of members Antônio Carlos Acioli, Carlos Rosemberg Fernandes Jr. e Rodrigo da Fonseca Chauvet, 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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