Fernando Dantas M Neustein
Mattos Filho Advogados, São Paulo

Pedro Henrique Reschke
Mattos Filho Advogados, São Paulo

Laura Lambert da Costa
Mattos Filho Advogados, São Paulo

Structural litigation in Brazil and Bill 3/2025

In June 2024 the Chair of the Brazilian Federal Senate established a Commission of Scholars to draft a bill of law about ‘structural litigation’, that is, collective litigation that deals with structural problems. The goal was to establish a body of law to govern complex systemic disputes that allegedly cannot be resolved through the use of conventional collective litigation techniques because such disputes require prospective, gradual and long-lasting solutions, often involving dialogue, cooperation and negotiation among multiple stakeholders. In October 2024, the Commission of Scholars approved a draft bill, which was subsequently submitted to the Senate. Bill 3/2025, or the ‘Structural Litigation Bill’, is currently still pending before the Senate.^[1]

According to the supporters of this Bill, although Brazil has employed structural techniques to address these issues for several decades, most notably in environmental cases such as the Coal Public Civil Action (ACP do Carvão) from 1993 and the reparation agreements concluded following the Brumadinho and Mariana dam disasters, there is a need for a dedicated statutory framework for structural collective litigation.

Legal scholars argue that structural litigation is directly inspired by the complex structural injunctions imposed by the US Supreme Court in cases such as Brown v Board of Education of Topeka^[2] and that the creation of a statutory framework is the only way to properly deal with complex cases. However, this premise deserves scrutiny, as it ignores the fact that traditional civil procedure already offers several flexible tools to address these types of problems. Arguing that an entirely separate type of procedure is needed to address these issues is an overstatement of the limitations of the current rules. Even in the US context, structural litigation has faced criticisms of this nature.^[3] 

In spite of this much needed scrutiny and the lack of regulations, structural cases are already a reality in Brazilian legal practice. The National Justice Council (Conselho Nacional de Justiça or CNJ), an administrative and supposedly non-jurisdictional body within the court system, recently issued internal rules about such cases, Recommendation No. 163/2025, which provides general guidelines on how to handle structural cases.^[4] Both the Supreme Federal Court (Supremo Tribunal Federal or STF) and the Superior Court of Justice (Superior Tribunal de Justiça or STJ) have recognised structural cases as a specific and separate category of cases, with the former even going as far as creating a specific department to manage such cases.^[5]

The growing attention being paid to structural litigation, when taken in context, is not surprising. Historically, there has been growing pressure from scholars and lawmakers to make collective lawsuits more flexible and less rule bound, with the aim of granting more case management powers to courts. One such attempt was Bill 5,139/2009, which proposed a wide-ranging set of reforms to Law 7,347/1985 (or the Public Civil Action Law). One of the goals of this Bill was to make collective lawsuits more flexible and less bound by ordinary procedural rules, but it was rejected after having been the target of widespread discussions and criticisms by the legal community.

The provisions set out in the Structural Litigation Bill

This gradual crescendo now seems to be reaching a new climax with the Structural Litigation Bill. The Bill proposes the creation of ‘structural lawsuits’ as a special procedure, separate from ‘regular’ collective lawsuits, that is to be applied in cases where the underlying issue demands an equally complex solution, involving multiple parties and dynamic decision-making that responds to changes in reality instead of being bound by the limits of the claims made by the plaintiff and by the rules of procedural preclusion. The decision should be prospective, establishing guidelines for what is to be done in the future, instead of solving a problem that happened in the past. Considering that they often deal with areas where the law is vague or unclear, structural lawsuits also favour consensual solutions between the parties instead of adjudicated decisions.^[6]

The Structural Litigation Bill is short, containing no more than 16 articles, and it provides a very roughly defined outline of a procedure, which leaves most of the gaps to be filled by the judge in each case. After the court grants the processing of the case as structural, parties and the court should work together to build a ‘structural plan’. The court then monitors the implementation of this plan until it considers that the necessary measures have been sufficiently adopted. For this reason, structural litigation also lacks a traditional merits-based decision that decides the plaintiff’s claims and gives rise to the possibility of enforcement.

This scarcely defined outline of a proceeding means that the courts are granted ample case management powers to create the solutions specific to each case. However, this flexibility baked within this type of proceeding appears to have gone too far, foregoing the application of traditional procedural rules that play an important role in ensuring the full applicability of the constitutional rights to due process,^[7] especially from the perspective of the defendant, whose rights seem to be treated as a secondary concern within the Bill, framed from the perspective of the interests of the plaintiff or the collective.

This is particularly concerning in light of the provision set out in Article 14^[8] of the Structural Law Bill, which provides for the possibility of a two-way exchange of procedural techniques and rules between structural lawsuits and non-structural lawsuits, providing no parameters for when such an exchange may happen other than requiring that the techniques be ‘compatible and adequate’ for each type of procedure and that techniques should be applied to a case that deals with an issue of a similar nature to structural cases, which, again, are two very wide criteria that are to be applied at the court’s full discretion, with very little in the way of parameters. The broad nature of this rule means that the corrosion of due process rules contained within the Structural Litigation Bill may also find its way into non-structural cases.

The red flags

These due process concerns are better explained using concrete examples of three characteristics of the Structural Litigation Bill that reflect the inherent tension between the model proposed by the Structural Litigation Bill and fundamental procedural guarantees.

The first is the rule on the stability of the claim. Under traditional civil procedure, applicable to ordinary collective lawsuits, the claims made by the plaintiff in the first brief filed in the case serve as a strict roadmap that must be followed by the court, which is barred from granting more than what the plaintiff has requested (an ultra petita decision is that which goes beyond the plaintiff’s claims, and the portion of a decision that does so is deemed null and void), similar to the rule barring the court from failing to hear any of the plaintiff’s requests (a citra petita decision, which gives rise to the court system’s duty to hear the remaining claims, either via an appeal or a new claim).^[9] Such strict rules are directly derived from the principle of due process, as they ensure that the defendant knows exactly what it is that is being asked of them, so that they can prepare their defence accordingly, effectively prohibiting the plaintiff from constantly adjusting their strategy as the case proceeds.

Structural litigation offers a much more flexible approach to the stability of the claim, to the extent that the Structural Litigation Bill does not require whatsoever that a claim be made in the traditional sense. The plaintiff can only point to the general problem that would require the court’s intervention, without indicating the specific measures that should be implemented. These measures are defined by the parties and the court as the case proceeds, in response to the demands of the developing structural issues. The prospect of a court ruling allowing such flexibility in regard to the claim raises legitimate concerns about due process and the fundamental rights of the parties, as it potentially allows the plaintiff to try and retry different strategies during the course of the proceedings in order to find a solution that works, while the defendant has to constantly shift their own defence to address new and unexpected fronts of the dispute. This approach sacrifices predictability, which is an essential part of any defensive strategy.

Another possible point of concern is the lack of a clearly defined fact-finding phase within structural litigation. Collective lawsuits have a well-established proceeding in regard to the fact-finding phase, wherein parties first make their opening statements in terms of the claim and defence, and the court then proceeds to identify the disputed issues of fact and of law and then establishes which party has the duty of proving each fact. Structural cases, on the other hand, are less dialectical. The Structural Litigation Bill contains no provisions in respect of a case management decision or concerning the solution to disputed issues of law. The procedure envisaged by the Bill has the immediate objective of establishing a structural plan to tackle the underlying problem, allowing little room for dispute between the parties on whether the problem exists or whether the appointed defendant is the entity that is responsible for solving it.

Lastly, the rules regarding the enforcement of decisions also raise important due process concerns in the context of the proposed Bill. The Structural Litigation Bill says little on enforcement. Its sole provision lies in Article 11,^[10] which gives the court ample powers to monitor the enforcement of the structural plan until the point in which it deems the abstract measures imposed therein to have been sufficiently implemented. This abstract and discretionary criteria to assess when a decision is enforced deviates strongly from the traditional rule of nulla executio sine titulo, where all enforcement procedures must be based on a decision (the enforcement title) that precisely defines what the defendant must do and which conditions should be met for the injunction to be considered fully enforced and the procedure to be dismissed.

This erosion of the principle of nulla executio sine titulo means that the parameters for what must be done and the standards for when such obligations have been adequately performed would be left entirely to the court’s discretion. While generic decisions are common in traditional collective lawsuits, it usually only applies to monetary awards (wherein each individual who was harmed by the collective fact may calculate their own indemnification). In all cases, structural or otherwise, injunctions should still be granted with a clear set of expectations and goals, so that the defendant knows with a reasonable degree of precision what they must do and when the courts will rule that the obligations have been performed.

Should the Bill be passed in its current form, it seems advisable that the courts use Article 14 as a means to soften the negative effect that the rules, such as those described above, may have on due process. Since the possibility of exchanging rules goes two ways, structural litigation would surely benefit from importing some of the more traditional aspects of civil procedure, such as claim stability, a clearly defined fact-finding phase and strict parameters for the enforcement of decisions.

Conclusion

Bill 3/2025 arrives at a pivotal moment for Brazilian collective litigation, as structural cases are already a reality and require proper regulation. Precisely because of this momentum, the legislature must exercise careful judgment. The flexibility proposed within structural proceedings raises legitimate concerns related to the defendant’s fundamental procedural guarantees, which is why the proposed rules should be harmonised with the procedural architecture of ordinary collective lawsuits rather than act as a corrosive force contrary to traditional due process rules.