Source: Legal Consultant - SP - 15/09/2009

The speed of the trials at the Supreme Court will reflect the increase in investments in the country. According to Minister Gilmar Mendes, president of the STF, 30% to 40% of Extraordinary Resources - those responsible for the diffuse constitutionality control in the country - deal with tax matters. According to experts, this is because the Federal Constitution goes into small details when it comes to taxes. The control of constitutionality in tax matters was the subject of a lecture by Gilmar Mendes, at the IX International Congress on Tax Law in Pernambuco, which took place in Porto de Galinhas, from 10 to 12 September.

During the three days of lectures and debates, the constitutionalization in excess of tax matters was praised and harshly criticized by experts on the subject. For some, this increases legal security in the country. For others, it decreases. Ex-Federal Revenue Secretary Everardo Maciel thinks so. According to him, what drives investments away from Brazil is the fact that every tax issue will end up in the Supreme Court. Minister Gilmar Mendes, an honored speaker, took a piece of data that can confirm this thesis: according to research done by Minister Nelson Jobim, when he was president of the STF (2004-2006), an Extraordinary Appeal took an average of 14 years to have a decision court. In urgent matters, the delay is fatal.

The slowness, then, is decreasing with the implementation of tools that free the Supreme Court from judging cases repeatedly or that are only of interest to the parties. The General Repercussion and the Binding Summary came to this end, said the minister.

He acknowledged that the two institutes are giving due importance to what the Extraordinary Appeal is entitled to. The action is the way that the citizen can question the constitutionality of a law, since the actions of concentrated control, as ADI, ADC and ADPF, only some institutions have authority to use. Today, the Supreme Court is already able to declare a law unconstitutional and enforce it in all cases.

Extraordinary Resources are also already being rewarded for modulating the effects of their decision, which guarantees acts that have already been completed and only affects future ones. For many experts, modulation is the key to legal certainty. Minister Gilmar Mendes said that the first case of modulation in constitutionality incidental control was the discussion about the number of councilors in the city of Mira Estrela in São Paulo. The STF considered the increase in the number of councilors to be unconstitutional, but decreed that its decision would only take effect for the next candidacy. This is to avoid cutting councilors' mandates and calling into question laws passed by them.

Unconstitutional Amendment

Brazil is today one of the most advanced countries in controlling the constitutionality of amendments to the Constitution, says Gilmar Mendes. He says that this control started when the court was provoked to analyze the constitutionality of the Constitutional Amendment that created the IPMF, later called CPMF.

In the specific case, it was decided that the tax could only apply to the following year in respect of the constitutional principle of priority. The paradigm went much further: the Supreme Court decided that not even a Constitutional Amendment can alter or violate the fundamental rights provided for in the Constitution. What's more, ministers have decided that Article 5 does not exhaust all fundamental rights. The previous one, for example, is not part of Article 5, but it is a fundamental right that cannot be violated even by a Constitutional Amendment.