Ongoing legislative discussions on expanding the list of entities with standing to file public civil actions in Brazil

Fernando Dantas Motta Neustein

Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados, São Paulo

fdantas@mattosfilho.com.br

Isabela Campos Vidigal Takahashi de Siqueira

Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados, São Paulo

isabela.vidigal@mattosfilho.com.br

Caroline Visentini Ferreira Gonçalves

Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados, São Paulo

caroline.visentini@mattosfilho.com.br

Jéssica Tolotti Canhisares

Mattos Filho, Veiga Filho, Marrey Jr e Quiroga Advogados, São Paulo

jessica.canhisares@mattosfilho.com.br

The Brazilian Public Civil Action Law (Law No 7,347/1985) provides that public civil actions are the procedural vehicle for the protection of diffuse and collective rights, these being considered as pertaining not to one individual but, rather, to a group or society as a whole – such as public and social property, the environment, consumer rights, and the honour and dignity of racial, ethnic and religious groups, among others. Law No 7,347/1985 also lists the following entities with standing to file public civil actions: (1) the Public Prosecutor’s Office; (2) the Public Defender’s Office; (3) the Federal Union, states, municipalities and the Federal District; (4) governmental agencies, public companies, foundations and government-controlled corporations; and (5) civil associations existing for at least one year.[1]

The goal of this list is to allow different branches of society to file public civil actions, to ensure that they all are duly represented in court regarding their collective rights. Indeed, the popularisation of public civil actions in Brazil can be attributed to the broad spectrum of entities with standing to file these cases. For instance, the Public Prosecutor’s Office has had an active role in defending the rights of Brazilian society, since it has the institutional duty to protect non-waivable individual rights and social rights.[2] The Public Defender’s Office has the institutional role of defending the rights of the needy,[3] including by filing public civil actions. The Federal Union, states, municipalities and the Federal District, as well as governmental agencies, public companies, foundations and government-controlled corporations also defend a wide range of diffuse and collective rights such as the environment, economic order and social and public assets. Governmental agencies (such as the Protection and Consumer Protection Foundations – ‘PROCONs’) may also defend consumers’ rights. Finally, civil associations close this broad spectrum by ensuring that civil society is duly empowered: they have standing to file public civil actions by proving that: (1) they have existed for at least one year; and (2) their statute sets forth an objective of protecting the right involved in the public civil action.

Nonetheless, several bills of law presented to the Legislative Branch in the past decade aim at enlarging the range of parties entitled to file public civil actions – such as bills of law No 5139/2009, 370/2015, 2770/2015, 2943/2019 and 1641/2021. They intend to authorise public civil actions to be filed by political parties and the holder of an electoral mandate.

The declared goal of providing different entities with standing to sue is to enhance access to justice and the protection of diffuse and collective rights by ensuring further representation of different branches of the society. Bill No 370/2015 argues that the holder of an electoral mandate is the one who best represents the public interest, since they were elected by the people and should have the prerogative of filing a public civil action on behalf of the people whom s/he represents.[4] Similarly, bill No 2770/2015 argues that political parties have an historical importance in the defence of rights in Brazil and should be included in the list of entities with standing to file such lawsuits.[5]

The key issue, however, is whether expanding the list of entities with standing to file public civil actions would enhance representativeness as intended by these bills, or if, as the authors of this article believe, it would merely increase litigation. 

Firstly, the issues that may be raised in public civil actions filed by political parties or by the holder of an electoral mandate can also be brought by those who currently have standing to file these cases. For example, matters related to religious minorities or the dignity of racial groups could be addressed in public civil actions filed by the Public Prosecutor’s Office, the Public Defender’s Office or civil associations. Therefore, considering that the existing list of entities with standing to file public civil actions seems to have proven itself to be sufficiently representative of diffuse and collective rights, it is debatable whether there would be any effective gain by allowing further entities to file class actions in Brazil.

The proposed changes would probably increase litigation in an already highly litigious environment. Brazil is known for having a huge number of pending lawsuits with direct impact on the courts’ capability to provide justice in a timely manner. According to the National Council of Justice, at the end of September 2021 there were more than 310,000 public civil actions and class actions pending before Brazilian courts.

In addition, the inclusion of political parties and holders of electoral mandates in the list of parties allowed to file public class actions may encourage lawsuits based on political issues which could transform courts into a stage for political discussions and public civil actions on a path for enforcing agendas or public policies that have not been considered or accepted by the Executive and/or Legislative branches.

Providing holders of electoral mandates with standing to file public civil actions would also present another inconvenience: the transitory character of their statute, which contrasts with the permanent character of the representation exercised by entities who currently have standing granted by the law. Debates would arise at to their representativeness once their mandate is finished, possibly resulting in impacts over their standing to sue.

In summary, it is highly debatable whether expanding the list of entities with standing to file public civil actions would be necessary or adequate in a country facing courts’ overload such as Brazil. Even if such expansion were found to be convenient, the proposals seeking to empower political parties and holders of political mandate to file such cases probably won't improve the quality of our litigation environment.