Congress approves a constitutional amendment proposal that creates a new selective criteria for the Superior Court of Justice to accept special appeals

The National Congress enacted, on July 14th, 2022, Constitutional Amendment No. 125/22, originated from Constitutional Amendment Proposal (PEC in Portuguese) 39/21, which adds paragraphs 1 and 2 to article 105 of the Federal Constitution, creating the relevance filter for the issues of federal infraconstitutional law for admission of special appeals. The goal of this amendment is to reduce the number of cases that reach the Superior Court of Justice.

With the new appeal admissibility filter, the paragraph first demands from the apellant the demonstration of the relevance of the question debated in the special appeal for society, that is, how the question discussed in the specific case is significant and of interest to society as a whole, surpassing the subjective interest of the parties. Also, the provision provides that the admission of the special appeal will depend on the approval of 2/3 of the members of the competent judging body.

The second paragraph brings the hypotheses of exceptions to the first paragraph, among which the criminal actions, the actions of administrative misconduct, the actions whose value exceeds five hundred times the minimum wage, actions that may generate ineligibility, the hypotheses in which the judgment under appeal was issued against the dominant jurisprudence of the Superior Court of Justice (STJ in Portuguese), and other hypotheses provided by law.

For issues related to intellectual property, therefore, unless the value of the case is higher than the level set in the constitutional amendment or that the apealled decision is contrary to the precedents of the STJ itself, its relevance will not be presumed to admit the appeal special and should be demonstrated on a case by case basis.

Also, the new criterion for lodging the special appeal does not invalidate the other precedents related to the exceptional appeals issued by the Superior Court of Justice or the Federal Supreme Court, which will coexist and should após be observed in the drafting of the special appeal. In fact, the new requirement for admission of the special appeal approaches the existing general repercussion requirement, applicable to the extraordinary appeal, addressed to the Federal Supreme Court.

Conceived for complex cause assessment and to standardize the understanding of Brazilian courts, the Superior Court of Justice, responsible for the analysis of special appeals, has become over the years overwhelmed and playing the role of mere revisor, moving away from the purpose that the Federal Constitution attributed to it.

Therefore, Constitutional Amendment No. 125/22 is in the same direction as Constitutional Amendment No. 45/04, which stiffened the examination of the extraordinary appeal by introducing the requirement of general repercussion, and the Superior Court is expected to see a significant decrease in its number of handled cases and an enhancememt in the quality of decisions with the systemic examination of justice at the federal level.

Constitutional Amendment No. 125/22 began to take effect on the date of its promulgation, including for ongoing lawsuits, so that special resources filed from July 14th, 2022 onwards will need to meet the new relevance filter to the analysis of your admission.

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