By Diogo Albaneze Gomes Ribeiro

Bill No. 2,481/2022 is currently under consideration and seeks to make significant changes to the Federal Administrative Procedure Law (Law No. 9,784/1999).

In addition to innovations such as those seeking to regulate the use of artificial intelligence in electronic administrative proceedings [1], to give consequences to administrative silence, to set deadlines for concluding administrative proceedings and to provide for suspensive effect (as a rule) for administrative appeals, the bill reinforces premises such as the application of the Law of Introduction to the Rules of Brazilian Law (LINDB) to administrative proceedings, the subsidiary or supplementary application of the Code of Civil Procedure, and the possibility of alternative dispute resolution methods, among others.

Although not all of the bill’s provisions bring something new to administrative proceedings, experience shows that, in relations between the public administration and private parties, certain explicit statements give managers comfort and certainty.

After all, scattered rules can be difficult to apply in practice, so restating in the Administrative Procedure Law that certain rules must be respected can serve an important educational purpose.

Nationwide application and encouragement of consensual solutions

The bill’s first major innovation is the nationwide application of the Administrative Procedure Law, requiring all entities of the public administration, as well as the Legislative and Judicial Branches, the Public Prosecutor’s Office and the Courts of Auditors, at all levels of the federation, to comply with it.

This nationwide application, grounded in the Constitution itself (article 22, item I), would, if approved, bring much more rationality and predictability to the conduct of these proceedings, above all by providing normative unity. Indeed, the concurrent competence of the Federal Government, the states and the Federal District does not cover the enactment of general procedural rules (which fall within the exclusive competence of the Federal Government), but rather legislating on procedures in procedural matters [2].

Procedures in procedural matters correspond, for example, to the rules defining how certain procedural acts will be carried out, which may vary according to the practices and customs of each region, such as the form/manner of service of notices.

Another important aspect of the bill, in line with dispute resolution best practices, is the inclusion of the principle of the pursuit of material truth, together with encouragement of consensual solutions with private parties (article 2).

The possibility of negotiating and formalizing agreements (article 68-E) is one of those additions that is not new, but serves to encourage the use of appropriate dispute resolution methods – including mediation, negotiation, dispute boards and arbitration (article 68-F) [3].

Procedural agreements, binding statements and compliance with STF decisions

Continuing along the path of consensualism and following premises already applicable to judicial proceedings, the bill introduces procedural agreements (article 25-A), providing that bodies and entities may, by consensus with the private party, agree on changes to the procedure to adjust it to the specifics of the case, before or during the proceeding – which includes, for example, agreeing on a schedule for procedural acts.

One of the prominent issues today is legal certainty – not only regulatory and contractual legal certainty, but also certainty arising from decisions made in the most diverse and routine administrative proceedings.

This principle embodies the idea of no surprises and predictable decisions. In other words, it is essential that individuals know in advance, and according to objective criteria, not only the legal rules applicable to certain conduct, but also the established understanding, if any, regarding the application of a given legal rule to analogous cases.

It follows that, when deciding its cases, the public entity should, as a rule, follow the understanding already consolidated in favor of individual rights, in order to preserve equal protection. Following precedents is one of the most efficient and objective ways to enforce respect for the constitutional principles of impersonality, equality and equal treatment.

Along these lines, the bill includes interesting provisions, to the effect that when a decision in a given administrative proceeding can be extended to other similar cases, the competent authority may, after a reasoned opinion from the legal department, give it binding and normative effect (article 48-J).

In addition, it provides that the administrative authority may issue a binding statement to make mandatory the application of a final court decision or a decision issued by a collegiate body whose content can be extended to similar situations (article 49-K).

Finally, the bill reinforces premises set out in the Code of Civil Procedure, to the effect that the administrative or oversight authority must, on its own initiative or upon request, apply to similar cases the decisions of the Federal Supreme Court in abstract constitutional review, binding precedent statements, judgments in incidents of assumption of jurisdiction or resolution of repetitive claims and in repetitive extraordinary and special appeals, and the statements of precedent of the Federal Supreme Court on constitutional matters and of the Superior Court of Justice on infra-constitutional matters (article 49-L).

Procedural acts, administrative res judicata and automatic suspensive effect

Regarding procedural acts, the bill: (1) clarifies that in electronic proceedings, any act may be performed until 11:59 p.m. on the last day of the deadline (article 23, § 2); (2) favors conducting proceedings electronically (article 47-A); and (3) establishes that procedural deadlines will be counted in business days (article 69-B).

Administrative res judicata was also addressed, preventing the administration, at the same level, from deciding a matter whose merits have already been decided with respect to the same parties and facts. This prevents the natural alternation of power from leading to frequent and undesirable swings in what has already been effectively decided by the State.

Another relevant aspect is the automatic suspensive effect (unless a specific legal provision states otherwise) of administrative appeals. This provision brings much more rationality to proceedings and avoids judicial measures having to be brought early while administrative appeals are pending.

Under the current system, since appeals filed in administrative sanctioning proceedings do not have automatic suspensive effect, the interested party must ask the deciding body to grant it. If this request fails, the party must turn to the courts, (almost always) transferring the discussion of the merits of the administrative proceeding to the courts, even while the administrative appeal is pending.

Therefore, by granting suspensive effect to administrative appeals as a rule, the bill not only avoids premature litigation but also brings much more rationality to administrative proceedings and preserves the usefulness of the appeal.

Finally, and to highlight one last point, the statute of limitations also received attention, confirming the five-year period for punitive claims and regulating intercurrent limitation in sanctioning administrative proceedings that have been stalled without just cause for more than two years, pending action, order or judgment.

As can be seen, in addition to bringing important innovations to proceedings, the bill seeks to reinforce and clarify some rules that, although already applicable, are not always easy to put into practice. These explicit statements not only give managers comfort and certainty, but also serve an important educational purpose.

Notes

[1] The innovations introduced by Bill 2,481 regarding artificial intelligence require, for example, that the use of artificial intelligence models in electronic administrative proceedings be transparent, predictable, auditable, disclosed in advance to interested parties and allow review of its data and results.

[2] Art. 24. The Federal Government, the States and the Federal District have concurrent competence to legislate on:

XI – procedures in procedural matters;

[3] Bearing in mind that the legislation in force (Law No. 9,307/1996, Law No. 14,133/2021 and Law No. 13,140/2015) already expressly allows the administration to use alternative/appropriate dispute resolution methods, including mediation and arbitration.

Originally published by Conjur (in Portuguese).