For the electric energy sector, Theme 986 addresses a theme with more than 100,000 over-filed processes, which generally demand the exclusion of the ICMS calculation base from TUST and TUSD.
On the 2020 agenda of the Superior Court of Justice there are important judgments that involve various themes, such as, for example, the double repetition provided for in article 42, of the CDC (Theme 929); the inclusion of the Tariff for Use of the Electricity Transmission System (TUST) and the Tariff for the Use of the Electricity Distribution System (TUSD) in the ICMS calculation base (Theme 986); readjustment by age group and the burden of proof of the actuarial basis of the readjustment in collective health plans (Theme 1016); possibility of the debtor’s salary being pledged to pay attorney’s fees (REsp 1,815,055); whether a residential condominium can prohibit the offer of properties for rent through digital platforms (REsp 1,819,075), among others.
Theme 929 addresses the “discussion on the hypotheses for applying the double repetition provided for in art. 42, sole paragraph, of the CDC ”, in the context of the STJ’s judicial behavior regarding the indispensable existence of amounts unduly charged and evidence of bad faith from the creditor so that, in theory, one is faced with the circumstance of incidence of the referred legal provision, with the potential to impact millions of lawsuits in Brazil, according to the STJ Precedent Management Center.
For the electric power sector, Theme 986 addresses a theme with more than 100 thousand over-filed processes, which generally plead for the exclusion of the ICMS calculation base from TUST and TUSD, with the corrected refund of payments in the interval of five years, together with refraining from continuing these charges. These tariffs are associated with the purchase of electricity directly from sales or generation agents in the free electricity market, particularly with regard to the use of the transmission networks necessary for energy consumption.
In Theme 1016, the questions about “the validity of a collective health contractual clause that provides for readjustment by age group” and “burden of proof of the actuarial basis for the readjustment” are discussed, emphasizing that the need to affect the theme was due to to establish a specific precedent for collective plans, considering that for individual or family health plans, a thesis was set in Theme 952 regarding the validity of the monthly fee readjustment in changing the beneficiary’s age range, as long as it is provided for in the contract, in accordance with the rules of government regulatory bodies and is not applied without proper actuarial basis.
In Special Appeal 1,815,055 / SP, reported by Minister Nancy Andrighi, with a request from Minister Luís Felipe Salomão, the possibility of mitigating or departing from the rule of unaffordability of wages for the payment of legal fees is discussed, considering that these they deal with food allowances, so that the intention is to clarify the expressions “food allowances” and “food allowances”. The vote of the Rapporteur Minister understood that the legal fees do not qualify as a food benefit, such as that destined to the family subsistence of vulnerable people.
In Special Appeal 1.819.075 / RS, the question is faced whether the rental of an apartment season through a digital platform, or the offer of the property in these means, may be prohibited by a residential condominium.
The vote of the rapporteur, Minister Luís Felipe Salomão, understood that this type of restriction is not possible, since the factual situation does not fit into the concept of accommodation, nor that of commercial activity, but that of residential rental for a short period, under penalty of violation of property rights.
By: Wilson Sales Belchior
PEC nº 39/2021 – Changes in special features
The Chamber of Deputies approved on 07/13/2022 the final text of the Proposed Amendment to the Constitution nº 39/2021 (“PEC of Relevance”). Presented on 11/08/2021 by...
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