Proposed Constitutional Amendment concerning relevance criteria for Special Appeals is approved

On July 13, the House of Representatives approved Proposal for Constitutional Amendment (PEC) PEC 39/2021, which establishes, within the scope of the Brazilian Superior Court of Justice (“STJ”), the relevance criteria for special appeals to be considered by Justices (a special appeal is a modality of appeal that parties can file in order to challenge decisions of second-degree courts that have contradicted or denied validity of a federal law or treaty, or have interpreted them differently from another court of the Federation). Given that such proposal had already been brought before the Senate, the text now advances for promulgation.

In summary, the STJ will have a ‘filter’ similar to the Supreme Court (related to the widespread public impact introduced by EC 45/2004). In order for a party to successfully present its case before the STJ through the special appeal, such party must provide evidence of relevance regarding non-constitutional (i.e. inferior to constitutional) federal law matters discussed in the dispute. According to provisions of paragraph 1, which will be added to Article 105 of the Brazilian Federal Constitution, if two-thirds of the Ministers in charge of evaluating the appeal understand that the abovementioned relevance does not exist, the STJ will no longer examine the appeal filed by the party in question. The ‘filter’ implemented through the EC (Constitutional Amendment) is aimed at decreasing the number of appeals that eventually reach the STJ.

According to EC 45/2004, the referred relevance will be presumed in the following scenarios:

(i) criminal proceedings in general;

(ii) actions against misconduct in public office;

(iii) demands whose value exceeds 500 minimum wages;

(iv) proceedings that can result in ineligibility;

(v) in the event that the contested judgment contradicts the dominant case law of the STJ; and

(vi) in other cases provided for by law.

If the case does not fit into the scenarios above, the appellant will be responsible for convincing the STJ that it meets the relevance criteria in order to enter judgment in Brasília. As such, the lawyer’s argumentative role becomes even more significant.

Demarest’s Dispute Resolution team is available to assist and advise our clients throughout such important stage of their case and to provide any further clarification that may be necessary.