Last Thursday, July 18, 2019, Resolution No. 5,849 — by means of which the National Land Transportation Agency ("ANTT") established a new set of rules and parameters for the calculation of national minimum freight rates — was published on the Official Gazette. Yesterday, nevertheless, upon a request made by the Ministry of Infrastructure, such resolution was suspended by ANTT.
The result of technical studies prepared by the University of São Paulo ("USP") and of a public hearing in which more than 500 contributions were submitted, the new resolution aims at complying with art. 6 of Federal Law No. 13,703/2018, according to which minimum freight rates should be set by ANTT through a "technical and widely publicized procedure, with the participation of representatives" of the affected groups. Resolution No. 5,820/2018, which was enacted by ANTT on May 30, 2018, had not been preceded by such measures.
However, as it resulted in freight rates lower than those set forth in Resolution No. 5,820/2018, Resolution No. 5,849/2019 quickly drew opposition from truck drivers — upon whose complaints the Ministry of Infrastructure asked ANTT, yesterday, to suspend the new resolution. Almost immediately, ANTT held an extraordinary meeting and granted the Ministry's request: by means of Resolution No. 5,851/2019, the Agency reinstated Resolution No. 5,820/2018 "until further decision by ANTT's Board of Directors." The Ministry of Infrastructure officially stated that there were "conceptual differences, regarding the value of freight rates and their price floor, which may affect the income of truck drivers", and that a consensus would be sought with such group.
The reinstatement of Resolution No. 5,820/2018, nevertheless, may lead to new legal hurdles: the National Congress Joint Committee entrusted with the analysis of Provisional Measure No. 881, of April 30, 2019, (the so-called "Provisional Measure of Economic Freedom") proposed to grant an amnesty for all fines arising from the violation of Resolution No. 5,820/2018 — explaining that, since such resolution had not complied with the requirements set forth by art. 6 of Federal Law No. 13.703/2018, it was "inconsistent" and caused "legal uncertainty". The approval of a statute embodying such position will deprive Resolution No. 5,820/2018 of meaningful effects — which may lead to additional pressure by dissatisfied truck drivers.
The Supreme Federal Court ("STF") is yet to rule on the constitutionality of Federal Law No. 13,703/2018 — in lawsuits the judgment of which is scheduled for the 4th of September 2019. Earlier this year, the Chief Federal Prosecutor rendered a legal opinion stating that the setting of mandatory minimum freight rates was constitutional. If ANTT had drafted a set of mandatory rates deemed to be satisfactory by all the affected economic groups, the STF would now be in a comfortable position to hold that Federal Law No. 13,703/2018 is constitutional. Conversely, political and social pressure over ANTT for the enactment of higher minimum freight rates may lead to a new wave of motions to the Federal Supreme Court — which may have to bear the responsibility of solving the conflict.
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