Brazil: The Supreme Federal Tribunal And The “General Repercussion” Requirement

The requirement that appeals to the Supreme Federal Tribunal (SFT) have a general repercussion was introduced by Constitutional Amendment 45/04, in the context of the recent reform of the Brazilian Judiciary, and is now found in articles 543-A and 543-B of the Code of Civil Procedure, added by Law 11,418/06.

The new criterion for admission of appeals to the SFT arises out of the SFT's jurisdiction, as Brazil's highest court, to protect and uphold the Federal Constitution. The concept of general repercussion is intended to ensure that only questions that are truly relevant to Brazilian society are heard by the court, improving the effectiveness and efficiency of the SFT's work by excluding appeals that reflect only the unsuccessful party's unwillingness to accept defeat. The requirement of general repercussion thus delimits the scope of the SFT's general jurisdiction to ensure the constitutionality of state action, since its specific jurisdiction is already defined by the exhaustive list of entities that may bring actions for a declaration of unconstitutionality in art. 103 of the Federal Constitution.

The requirement of general repercussion differs from both the petition for a writ of certiorari adopted by the Supreme Court of the United States and the former Argument on Relevance imposed under Amendment no. 3 to the SFT's Rules. The difference lies in the fact that while certiorari and the Argument on Relevance require the appellant to show the relevance of the issue under appeal, the court may deny leave without giving reasons for its decision. In the case of general repercussion, the STF is bound by article 93(IX) of the Federal Constitution, which requires that all judicial decisions must be supported by reasons, on pain of nullity.

Under articles 543-A and B of the Code of Civil Procedure, the court must consider the importance of the case from an economic, political, social and legal point of view in determining whether it meets the requirement of general repercussion, and appeals that have a general repercussion in any one of these aspects will meet the requirement. Furthermore, the appellant must demonstrate that the questions raised in the appeal transcend the interests of the parties, and have an impact that goes beyond the confines of the particular case, as required under art. 322 of the SFT's Rules.

Although the elements that demonstrate the general repercussion of a case are subjective in nature, both the legal literature and the precedents have imposed limits on the concept, which facilitate the decision-makers' task.

In its economic aspect, general repercussion is demonstrated by the impact of the case on national economic policy, the productive sector, essential public services (collective transportation, telephone services, energy, basic sanitation) or the development of the private sector. A general repercussion will also be considered to be present when the STF's decision will create a leading precedent by granting a right that could be claimed by a considerable number of persons. A case will also have a general economic repercussion when it concerns a violation of Title VII of the Federal Constitution, "The Economic and Financial Order", covering arts. 170 to 191.

A case will have a general social repercussion when the issues it raises involve collective or general rights protected by the Constitution in matters of education, housing, health or social security, or, in other words, the issues that can be raised in citizens' actions, public civil actions and petitions for judicial review in the collective interest. The case must also affect the actual circumstances of a significant number of people. The same criterion applies in cases of substitution of parties where, for example, an employers' association represents all its affiliated companies. In effect, this aspect is similar to the requirement that the case transcend the interests of the parties, in that the decision will produce effects beyond the appellant and respondent in the appeal.

On the legal plane, a general repercussion will be shown to exist when the issue involves the interpretation or scope of a legal concept or principle of law. It will also exist when the constitutionality of legislation has been challenged in the courts for good reasons, or when the court below has found that legislation is unconstitutional. In this context, article 543-A §3 of the Code of Civil Procedure, which provides that a case will have a general repercussion when it challenges a decision contrary to one of the SFT's Restatement of Precedents (Súmula) or the dominant position in the court's precedents, is simply a more objective statement of one of the circumstances in which a case can be considered to have a general legal repercussion.

Lastly, an appeal will have a general repercussion on the political life of the nation when the subject matter of the case affects Brazil's relations with other countries or international organizations, relates to conflicts between public political entities or involves public economic policy or governmental directives.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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