Eduardo Maffia Queiroz Nobre Patricia Rios Salles de Oliveira July 3 2012 Role of Public Prosecution Office with respect to common individual rights Leite Tosto e Barros Advogados | Litigation - Brazil Eduardo Maffia Queiroz Nobre, Patricia Rios Salles de Oliveira Litigation IntroductionCase lawCommentIntroductionThere has been much discussion regarding the right of the Public Prosecution Office to take action in defence of collective and common individual rights. Notwithstanding the fact that the discussion started with questions over the Public Prosecution Office's right to prosecute, there is still room for discussion with regard to distribution of collective lawsuits.The first discussion under review by the judiciary was limited to analysing whether the Public Prosecution Office was permitted to sue in defence of referred common collectives and individual interests. The Consumer Defence Code, which establishes the competence attributed to the office, eventually expanded the institutional functions initially provided to it by Article 129 of the Constitution, which allowed the office to sue only when protecting diffuse and collective interests, with common individual rights excluded from said functions.Accordingly, when interpreting Article 127, it might be concluded that any protection would be limited to inalienable individual rights, thus removing the prosecution's standing to sue from the other available individual rights, even if they were common individual rights. However, when considering this issue, the Supreme Court unanimously considered that common individual rights are subtypes of collective rights, and therefore the office was permitted to sue in relation to them.Case lawThe case in question(1) examined whether the Public Prosecutions Office was permitted to sue in relation to discussions of alleged abuse in readjusting tuition fees, which notably affect consumer rights. The court considered that the office could sue when the protection of individual rights was related to inalienable rights. At the time, the Superior Court of Justice had not analysed the issue of common individual rights; it recently recognised such standing to sue in a conditional fashion.The court understood that whether the Public Prosecution Office could rule on common individual rights was conditional on the respective collective dimension of those rights or their social relevance. The federal Supreme Court agreed, authorising the Public Prosecution Office to rule in such cases.However, decisions have also been rendered by both courts providing the Public Prosecution Office with full standing to sue, without restrictions, even in defence of individual rights.CommentThere is no full understanding in regard to jurisprudence, as the Public Prosecution Office's standing to sue has been analysed in a case-by-case basis. Nonetheless, whether the office is permitted to sue should arguably be conditional on the social relevance of the common individual right intended to be legally defended.Interpreting the legislation in force, the Superior Court of Justice determined that the Public Prosecution Office had not only standing to sue, but also the right to sue. The right to sue occurs when the party petitioning the court meets the requirement of 'necessity-utility' (the simultaneous presence of two essential requirements: the need to obtain a judicial grant, and the utility that this provision will bring to the petitioner), which must be present whenever that party wishes to exercise the right of action to achieve the desired result. Moreover, it occurs when the claim is useful in practice.In the case of collective actions, the interest must be demonstrated by the group as a whole by means of the common individual interests intended to be protected.In other words, the office cannot bring a public civil lawsuit because its representative understands that certain conduct would violate an individual right (removing the common nature); this demonstration must be clear and grounded on complaints and non-conformity with society itself.Thus, while the Public Prosecution Office need not demonstrate a previous civil investigation, it should gather a significant quantity of complaints and non-conformities of people whose interest it intends to defend.Therefore, and on the grounds of recent judgments on the subject, the Superior Court of Justice will analyse intrinsic procedural requirements for the filing of collective lawsuits, which will eventually become a pattern.This interpretation is legally grounded insofar as it is common for public civil lawsuits to be filed to protect small groups of consumers, members or associates, who could easily be defended by means of an individual lawsuit with a group of plaintiffs. Thus, these measures are necessary to regulate the correct filing of actions in such cases. The same conclusion can be applied to collective lawsuits in which there is a single complaint or non-conformity by a group.Greater attention is required, specifically with regard to the protection of consumer rights, since the right to sue will be attributed only on clear demonstration that the violation is relevant, given the number of consumers potentially harmed. The Public Prosecution Office and other associations cannot sue in defence of a small group of consumers (opposed to the total number of potential harmed individuals), or even in defence of isolated claims. In such situations, the collective defence, which holds extremely importance, cannot be used, under penalty of committing total distortion.For further information on this topic please contact Eduardo Maffia Queiroz Nobre or Patrícia Rios at Leite Tosto E Barros Advogados by telephone (+55 11 3847 3939), fax (+55 11 3847 3800) or email ([email protected] or [email protected]).Endnotes(1) Case 163,231-3.