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Is the WTO TRIPS Agreement
valid and self-executing in Brazil?

The Supreme Court Decisions upholding the Self-Execution of the GATT Rounds and Codes

The Brazilian Supreme Court (STF) has always accepted the direct application of the GATT, and the court’s position can be easily perceived from almost three hundred decided cases. The Supreme Court has considered the supremacy of the GATT rounds and codes over federal statutes in certain areas of law, even where this position conflicts with later constitutional changes.

The Brazilian Supreme Court has gone as far as accepting and upholding the federalization of state matters by means of a presidential Executive Order enacting a GATT round, by which the federal executive branch agrees to eliminate taxes that were of the exclusive powers of the States, as established in the Brazilian constitution.

Some examples of Supreme Court cases upholding the direct applicability of Executive Order of enactment of a GATT agreement are as follows:


• RE #83,428, of March 09, 1975 (RTJ 77/981);
• RE #76,099, of April 07, 1975 (RTJ 73/454);
• RE #82,509, of February 10, 1976 (RTJ 78/266); • RE #83,531, of February 10, 1976 (DJ abr. 1976);
• RE #83,806, of February 10, 1976 (RTJ 78/625); • RE #84,430, of February 20, 1976 (DJ 26 mar.1976);
• RE #84,400, of February 20, 1976 (DJ 30 abr.1976);
• RE #84,010, of April 06, 1976 (RTJ 80/217) and • RE #84,892, of April 06, 1976 (DJ 8 jul.1976).

The large number of cases from the Supreme Court relating to GATT Agreements can be explained. First, judicial decisions do not have the force of binding precedents in Brazil. Second, parties in a lawsuit have a constitutional right to appeal to the Supreme Court, which does not have discretionary powers to choose the cases it wants to hear. Consequently, the Brazilian courts are continually subjected to repetition of rejected legal contentions.

Prof. Keith Rosenn explains that Brazil does have the institution of the precedent, which began in the STF in 1964 and has since spread to other courts in Brazil.26  A Precedent is a numbered capsulized legal rule, usually only one sentence in length, summarizing the holding of the court in a series of cases and precedents. Norms are enshrined in the precedent only after the case law has “firmed up” in a specific direction.27 Most deal with very ordinary questions of statute. A Typical example is #554, which provides:


“Payment of a check, issued without provision for funds, after receipt of the criminal accusation is no obstacle to proceeding with the criminal action.”28 

These case law rules exist freely, almost totally disembodied from the facts of the cases upon which they are based. The rules are technically not binding on judges lower in the hierarchy, but are usually followed because failure to do so usually assures summary reversal.

The Brazilian Supreme Court had decided so many cases referring to the self-applicability of the presidential Executive Order of enactment of GATT rounds and agreements (cases relating to conflicts of statutes), that in the late seventies the Court issued four different “precedents,”
dealing with a diversity of cases brought under several agreements. Three
examples are as follows: The Superior
Justice Court (STJ), created under the authority of the 1988 Constitution, has
issued precedents. Three of them relate to the Tokyo GATT Round, enforceable as
Brazilian domestic law until the Uruguay Round was incorporated, after the presidential
Executive Order #1,355/94.[1] The STJ’s precedents can be summarize as follows:

Precedent Supreme Court Holding Sample of Supreme Court case law with the same holding found in the Precedent
130, of December 16, 1976 SUDIN 1-01, p. 77. “The customs fees (article 66 of the Statute #3,244, of August 14, 1957) are still due after the Legislative Decree that approved the changes to the General Agreement on Tariffs and Trade GATT.” The authority cited in all the cases and the Precedent itself is the translation of the GATT Agreement AGRMS - 8831- SP. 1961 TP PANEL, OFF. GAZ. 28/09/61, P. 2077, COURT ABSTRACT REPORTER 478-01, AGRMS - 8887- SP. 1961 TP PANEL, OFF. GAZ. 15/09/61, P. 1947, COURT ABSTRACT REPORTER 476-02; RE - 9341- SP. 1962 TP PANEL, OFF. GAZ. 189/10/62, P. 3004, COURT ABSTRACT REPORTER 518-05.
131, of December 16, 1976 SUDIN 1-01, p. 77. “The customs fees (article 66 of the Statute #3,244, of August 14, 1957) are still due for goods listed on the list III of the General Agreement on Tariffs and Trade GATT” Once again, the authority cited in all the cases and the Precedent itself is the translation of the GATT Agreement, as published by the presidential Executive Order of enactment. AGRMS - 8558- SP. 1961 TP PANEL, OFF. GAZ. October 19, 1961, P. 2310, COURT ABSTRACT REPORTER 481-02; AGMS - 8827- SP. 1961 TP PANEL, OFF. GAZ. November 09, 1961, COURT ABSTRACT REPORTER 483-03; RMS - 8829- SP. 1961 TP PANEL, OFF. GAZ. December 12, 1961, P. 2879, COURT ABSTRACT REPORTER 488-01, RTJ 20-01, PG. 76; MSA - 8830- SP. 1962 TP PANEL, OFF. GAZ. June 01, 1962, COURT ABSTRACT REPORTER 501-01; AGRMS - 8831- SP. 1961 TP PANEL, OFF. GAZ. September 28, 1961, COURT ABSTRACT REPORTER 478-01; AGRMS - 8887-SP. 1961 TP PANEL, OFF. GAZ. September 15, 1961, P. 1947, COURT ABSTRACT REPORTER 476-02; AGRMS - 9656- SP. 1962 TP PANEL, OFF. GAZ. October 25, 1962, P. 3154, COURT ABSTRACT REPORTER 519-01; AGRMS - 12067- SP. 1963 TP PANEL, OFF. GAZ. November 14, 1963, P. 3945, COURT ABSTRACT REPORTER 562-01, RTJ 31-01, PG. 122.
575, of December 15, 1976 Official Gazette of January 03, 1977page 4. “Goods imported from GATT countries benefit from state sales tax exemption given to similar Brazilian products.” The supreme court cases cite articles 3-1 and 3-2 of part 2 of the Portuguese translation of the GATT Agreement annexed to the Presidential Executive Order of enactment. RE - 83428- SP. 1976 2nd Panel, of. Gaz. April 26, 1976, p. 2735, Court Abstract Reporter 1019-03, rtj 77-03, pg. 981; re - 76099- sp. 1975 1st Panel, of. Gaz. May 09, 1975, p. 3068, Court Abstract Reporter 984-01, rtj 73-03, pg. 454; re - 82509- sp. 1976 2nd Panel, of. Gaz. April 09, 1976, p. 2386, Court Abstract Reporter 1018-01, rtj 78-01, pg. 266; re - 83531- sp. 1976 2nd Panel, of. Gaz. April 09, 1976, p. 2387, Court Abstract Reporter 1018-02; re - 83806- sp. 1976 1st Panel, of. Gaz. April 26, 1976, p. 2735, Court Abstract Reporter 1019-03, rtj 78-03, pg. 625; re - 83430- sp. 1976 2nd Panel, of. Gaz. March 26, 1976, p. 2035, Court Abstract Reporter 1016-02; re - 84400- sp. 1976 2nd Panel, of. Gaz. April 30, 1976, p. 2915, Court Abstract Reporter 1020-01; re - 84010- sp. 1976 1st Panel, of. Gaz. 08/07/76, Court Abstract Reporter 1027-10; re - 84892- sp. 1976 2nd Panel, of. Gaz. July 08, 1976, p. Court Abstract Reporter 1027-12.

The Superior Justice Court (STJ), created under the authority of the 1988 Constitution, has issued precedents. Three of them relate to the Tokyo GATT Round, enforceable as Brazilian domestic law until the Uruguay Round was incorporated, after the presidential Executive Order #1,355/94.29 The STJ’s precedents can be summarize as follows:

Precedent # and date of enactment Superior Justice Court Holding Sample of Superior Justice Court case law with the same holding found in the Precedent
20, Official Gazette of July 12, 1990, p. 14682, RSTJ 16/515. The port improvement tax has a basis of assessment different from the importation tax, being legal to charge it from goods imported from GATT member countries. RESP 3143- SP, 1990, June 20, 1990, DJ. August 06, 1990, PG. 7328, RSTJ 16, PG. 531; RESP 1845-SP, 1989, June 04, 1990, DJ. June 26, 1990, PG. 6024, RSTJ 16, PG. 527; RESP 1309- SP, 1989, May 07, 1990, DJ. May 28, 1990, PG. 4729, RSTJ 16, PG. 517; RESP 1532- SP, 1989, December 18, 1989, DJ. February 02, 1990, PG. 1041, RSTJ 16, PG. 520
71, Official Gazette of April 02, 1993, p. 775, RSTJ 44/323. Cod Fish imported from a GATT member country is exempt from importation tax. RESP 21577- SP, 1992, June 06, 1992, DJ June 29, 1992, PG. 10294, RSTJ 44, PG. 368; RESP 20052- SP, 1992, April 08, 1992, DJ. May 11, 1992, PG. 6430, RSTJ 44, PG. 365; RESP 13866- SP, 1991, April 06, 1992, DJ. May 04, 1992, PG. 5851, RSTJ 44, PG. 362; RESP 12059- RJ, 1991, October 16, 1991, DJ. November 04, 1991, PG. 15672, RSTJ 44, PG. 359; RESP 10872-SP, 1991, June 19, 1991, DJ. August 26, 1991, PG. 11392, RSTJ 44, PG. 356; RESP 10635- SP, 1991, June 12, 1991, DJ. August 05, 1991, PG. 9995, RSTJ 44, PG. 354; RESP 5142- SP, 1990, December 17, 1990, DJ. February 25, 1991, PG. 1460, RSTJ 44, PG. 348; RESP 715- RJ, 1989, May 07, 1990, DJ; May 28, 1990, PG. 4728, RSTJ 44, PG. 325;
124, Official Gazette of September 12, 1994, p. 34815. RSTJ 72/139. Goods imported from GATT member countries will be exempt from tax when a Brazilian product similar to the one imported is exempt from the same tax. RESP 11845- CE, 1991, June 16, 1993, DJ. August 30, 1993, PG. 17271, RSTJ 72, PG. 164; RESP 1354- SP, 1989, March 24, 1993, DJ. May 10, 1993, PG. 8601, RSTJ 72, PG. 146; RESP 31548- SP, 1993, March 15, 1993, DJ. April 26, 1993, PG. 7179, RSTJ 72, PG. 169; RESP 20739- SP, 1992, June 24, 1992, DJ. August 17, 1992, PG. 12484, RSTJ 72, PG. 167; AGA 14953- SP, 1991, March 11, 1992, DJ. April 20, 1992, PG. 5241, RSTJ 72, PG. 141; RESP 5396- SP, 1990, February 04, 1991, DJ. March 18, 1991, PG. 2791, RSTJ 72, PG. 161; RESP 4818- SP, 1990, October 17, 1990, DJ. November 05, 1990, PG. 12425, RSTJ 72, PG. 159; RESP 1169-SP, 1989, August 20, 1990, DJ. October 01, 1990, PG. 10432, RSTJ 72, PG. 144; RESP 2990- SP, 1990, June 04, 1990, DJ. June 25, 1990, RSTJ 72, PG. 151.

All the cases listed above have reached the Superior Justice Court under the 1988 Constitutional Clause (article 105, III, c) that grants the Court jurisdiction to review, at a special appellate level, the judgments rendered at single or final level by the Federal District Courts, or State Courts, when the decision appealed infringes a treaty, or denies its applicability.  Once again, “infringement of a treaty” shall be understood as the infringement of the annex of the presidential Executive Order of enactment.

All previously listed Supreme Court sumulas were issued before the 1988 Constitution. However, the advent of the new political charter did not change the Supreme Court position and understanding. Several cases decided after the 1988 Constitution upheld the same rule citing the same sumulas. The sumulas issued by the Supreme Court on GATT, were predated the 1988 Constitution, although these are still widely used by the Court.  However, there are sumulas on GATT that were issued by other courts after the 1988 Constitution. After the 1988 Constitution, the Supreme Court only retained the jurisdiction to judge at an appellate level, decisions rendered at initial or final level, if these decisions "declare a treaty unconstitutional," as stated in article 102, III, b. Therefore, issues of direct applicability of treaties and conflicts of statutes will only reach the Supreme Court if the treaty is being challenged as unconstitutional.

The direct applicability of treaties, as suggested by articles 102, III, c, and 105, III, c, of the current Constitution is confirmed by hundreds of judgments by the Supreme Court and the Superior Justice Court. Both courts apply the Portuguese translation of the treaty as enacted by the presidential Executive Order. This has been the unchanged and uninterrupted law and the practice in Brazil since the very beginning of the republican form of government, and even before.

Thus, based on all the authorities presented above, the Portuguese translation of the WTO Agreement, together with all its annexes, should be considered as incorporated into Brazilian domestic legislation by presidential Executive Order #1,355/94, in light of the previous GATT rounds and agreements also incorporated into Brazilian domestic law by the same procedures.

It is also important to note that the system of incorporation of international agreements into Brazilian domestic law seems to fit within the requirements of article 2, A, of the Final Act, article XVI, 4, of the WTO Agreement, and article I, 1, of the TRIPS Agreement.

Considering the above conclusion, two questions remain to be answered: Firstly, what is the rank the presidential Executive Order enjoys after it is incorporated into Brazilian domestic law?; and secondly, what are the mechanisms to solve conflicts between the presidential Executive Order and other Brazilian statutes?

26 Judicial Reform in Brazil, NAFTA: Law and Business Review of the Americas, Spring 1998, IV, no.2; and Keith S. Rosenn, Civil Procedure in Brazil, 34 AM. J. COMP. L. 487, 513 (1986).
27  Id. Each tribunal has its own rules while issuing precedents. Some require unanimous decisions or an absolute majority in at least two cases. The STF requires an absolute majority of the full court. STF, Internal Rules, Article #102, ¶ 1.
28 Precedent # 554 of the STF.

29 The Tokyo Round was approved by the Brazilian Congress by the Legislative Decree #20 and #22 of May 12, 1986, and enacted by the presidential by Executive Order 92,930, of November 07, 1986, incorporating the Agreement on the implementation of article VII of the GATT, among others.