The discussion on the constitutionality of state laws that provide for the mandatory extension of promotional campaigns to all customers – new or pre-existing ones – of services of a continuous nature had another chapter in the judgment of Direct Actions of Unconstitutionality 6,191, 6,333 and 5,399 (ADI 6,191, ADI 6,333 and ADI 5,399). However, it was not a final chapter, because the Supreme Court's decision was restricted to promotions related to telecommunications and education service providers.
ADI 6,191 and ADI 6,333 were proposed by the National Confederation of Educational Establishments (Confenen), while ADI 5,399 was filed by the National Association of Cell Phone Operators (Acel). The lawsuits questioned Law 15.854/15 SP and Law 16.559/19 PE, according to which providers of continuous services (such as telecommunications, education, water, electricity, health plans, cable TV, internet providers, among others) are obliged to offer their old customers the same conditions offered to fresh consumers. In case of non-compliance, fines could be imposed.
At the trial, the Supreme Court ruled, by majority of votes, that the mentioned state laws were unconstitutional. For this, the Court based its decision on two main arguments, one of formal order and another of material order.
From a formal point of view, the Supreme Court pointed out that the contracts established between consumers and telephone operators or educational institutions are civil matters and, therefore, are subject to legislation that can only be created by the Federal Union, not by States. In addition, it was recalled that the Court had previously decided that only the Federal Union could legislate on education and telecommunications.
Regarding the material argument, the court pointed out that the state laws violate the constitutional principles of free enterprise and proportionality. The granting of discounts indiscriminately to old clients would hamper suppliers to seek new customers, which would breach the free enterprise principle. Furthermore, requiring service providers of an ongoing nature to amend the contracts already established would cause disproportionate damage.
Considering the arguments used by the Supreme Court, although the object of the actions are specific laws of São Paulo and Pernambuco, any similar state law would also, in principle, be unconstitutional. States with similar laws should, then, submit to the decision.
It is important to highlight that the Decision of the Supreme Court covered only promotions related to providers of education and telecommunications services, because the thesis created was: “the state law that imposes on private providers of teaching and cellular services the obligation to extend the benefit of new promotions to pre-existing customers is unconstitutional". Thus, by exclusion, other services of a continuous nature (such as health plans, internet providers and pay TV) would still be subject to similar state laws.
The analysis of the judgment of these ADIs leads us to believe that grounds used by the Supreme Court could also be applied to other services of a continuous nature. It is now worth following how other entities representing service providers of this nature will act, considering that there are several state and federal bills proposing that service providers are obliged to extend to their pre-existing customers the same conditions offered for new ones.
