The 3rd Panel of the Superior Court of Justice (STJ) has recently judged the Special Appeal (REsp) 1.801.518/RJ, in which the legitimacy of the Public Prosecutor's Office (MP) was discussed to promote the liquidation and collective enforcement of judgment in the protection of homogeneous individual interests or rights provided for in Article 81, sole paragraph, item III, Consumer Protection Code (CDC).
In the case under discussion, the Public Prosecutor's Office of the State of Rio de Janeiro (MPRJ) filed a public civil action (ACP) against a property developer, so that the company would review a contractual clause that provided for the retention of installments paid in case of withdrawal of the acquisition of property (between 75% and 90% to 25%). It also requested for the recognition of the right of consumers who were harmed to double the debt. The MPRJ´s pleading was granted[1], and the sentence was reformed by the Court of Justice of the State of Rio de Janeiro (TJRJ) only to rule out double repetition and collective moral damage.
With the judgment finalized, the MPRJ, in addition to requesting the conviction of the property developer to pay a fine for the alleged delay in compliance with an injunction granted by the Court on an incidental basis, began the collective compliance of the judgment, based on Article 98 of the CDC, referring to the simple return of the amounts due to the injured individuals.
When being summoned about the beginning of the execution phase, the company expressed the illegitimacy of the MP to promote the collective execution of the sentence, which was not accepted by the Court of Origin. The decision was the subject of an instrument appeal, to which the local court dismissed.
Against the judgment, the defendant filed REsp 1,801,518/RJ, arguing that only injured consumers could demand compliance with the award. This understanding was unanimously accepted by the Superior Court, confirming the Court's previous view on the subject.[2]
In the conception of the Ministers of the Superior Court, the public interest that would justify the MP's action in the collective action was overcome in the execution phase, leaving the parquet only the hypothesis of residual execution provided for in Article 100 of the CDC.
According to the vote of the rapporteur, Minister Paulo de Tarso Sanseverino, although Article 98 of the CDC admits the collective execution of the sentence by the entities legitimized in Article 82 of the CDC – among them, the MP –, at the stage of enforcement of the judgment there is no longer the social interest provided for in article 129, item III, of the Federal Constitution to justify ministerial action, since the legal interest at this stage is restricted to the patrimonial and available scope of each of the consumers admittedly injured.
In this sense, the rapporteur minister understood that, in the execution phase of the sentence, the controversy over the homogeneous character of the law is already overcome. Thus, the sentence that recognizes homogeneous individual rights – hypothesis of the case under analysis – can be executed individually, as authorized by the CDC in art. 97.
As for the residual execution hypothesis provided for in Article 100 of the CDC, the rapporteur minister considered that it was not applicable in the case under analysis, since the period of one year would not have elapsed without the qualification of interested parties, under the terms of the article. Thus, the rapporteur declared the MP's active illegitimacy to initiate the execution of the sentence handed down in a collective action - without prejudice to the residual execution, after the legal deadline.
The understanding of the Superior Court has faced criticism from some members of the legal community, who understand that the judicial function is not exhausted with the end of the knowledge phase, under penalty that the satisfaction of collective rights recognized by the judiciary is impaired. Thus, the social relevance of the implementation phase would justify the legitimacy of the MP.[3]
However, in the face of the last judgments of the Superior Court on the matter, there is a tendency to consolidate the understanding in the sense that there is no social relevance in the execution phase, which is why the MP does not have active legitimacy to promote the collective execution of judgments that protect homogeneous individual rights.
The matter under discussion will be again faced by the STJ in the judgment of RE 1.758.708/MS. Until then, it is expected that the courts of the country observe the position adopted by the STJ and move away from the legitimacy of the MP for compliance with judgment in collective action that protects homogeneous individual rights.
[1]Before the trial of the ACP, the Court determined that the property developer list the contracts signed with potentially injured consumers, under penalty of a fine of R $ 1 million, due to non-compliance with the court order.
[2] Cf. REsp 869.583/DF, 4th Class, rapporteur min. Luis Felipe Salomão, tried on 5.6.2012.
[3] This understanding is in line with the decision given by Minister Nancy Andrighi (Resp 1.028.855/SC), in which it was highlighted that the amendment of the wording of certain articles of the Code of Civil Procedure (CPC) – like the arts. 162, §1, 267, 269, and 463, Caput –, it would show that the proceedings are not necessarily exhausted by the declaration of law, and that the judicial function would only end with its effective satisfaction.
