The topic of the so-called outsourcing is notoriously uncommon in the areas of procedural law. However, the existence of two appeals presenting the general repercussion requirements (one in the specific field of telecommunications, and another having a generic scope), already accepted by the Federal Supreme Court, as well as the recent enactment of a Bill by the Chamber of Deputies which rules the subject – and whose sanction seems to be quite likely to happen even though some changes may occur in the Senate – give rise to inquiries about the possible scenarios in view of the validity of this legal topic, considering not only the several pending lawsuits, but also the cases that have already been heard, and where that controversy took or takes place.
The considerations that follow are intended to be an analysis from the point of view of the current procedural approach, and it is made by somebody who, as one might say, has an “outside view”. But since the question has now been submitted to the Federal Supreme Court, and considering that the civil procedure is the instrument for the exercise of jurisdiction including that particular area, such an analysis seems to be justifiable. The only goal is to raise a debate on the most relevant questions.
Assuming that the law is enforced, this fact will neither determine – at least not by itself – the judgment of pending cases, nor will it affect the appeals before the Federal Supreme Court. Although the procedural law itself mentions the possibility of asserting a supervening right (article 342, I, applicable to both parties), it is necessary to consider how the substantive law may solve the problem of the enforcement of the new legislation over time, and this is an issue that, in this case, escapes the proceduralists. However, the fact that interests them is the repercussions that the new legislation may have on the subject-matter of the action as well as on the dispute resolution. At least, as a rule, a law is supposed to produce future effects, which means that it does not affect situations that are already consolidated.
Moreover, it should be noted that the proceedings are governed by preclusions, and that the pleas by the plaintiff (which in some way limit the decisions) are subject to the so-called stabilization rule. In short, the fact that the new substantive controversial situation ended up being ruled by a new law will not necessarily interfere with or impair the subject-matter of pending cases, which, exactly for that reason, convey past facts that, at least, as a rule, must be judged under the aegis of the law that was in force when they took place.
In the case of appeals before the Federal Supreme Court, the fact that no damage will be caused on account of the new law is reinforced, as it is not a matter of revoking a law that was examined under concentrated constitutionality control, which, indeed, does not even happen in the situation despite the efficacy ultra partes that the judgment will have. The enactment of a law, whose subject had not been previously regulated, will not invalidate the facts or the prior legal effects that had been produced. Also, it cannot be said that the precedents of the Superior Labor Court on the subject were being revoked because, at least in that point, the concepts of law and precedent are unmistakable – no matter how recognizably binding the latter may be (and that is not exactly the case). Besides, once the law is in force, it is not difficult to imagine that there will be claims pleading the concentrated control in it as the subject-matter of the action. And, then, the matter will really have to be dealt with by the Federal Supreme Court. One could possibly consider the new law as being an interpretative rule, suggesting that it would only have explicited what might already have been extracted from the legal system. By the time of the enforcement of the 2015 Code of Civil Procedure, there were manifestations from the scholars to support that some of the new rules had simply clarified what had already been possible to extract from the existing legal system. However, the opposite exegesis would certainly be acceptable: exactly because as the law ended up expressly allowing outsourcing (thus, having a wider scope than might ever have been acceptable), one could say that, in the past, the practice would not have been lawfully feasible. However, this debate – typical of substantive law – would not cause any damage to ongoing judgments and, at most, could be used as an argument in favor of the lawfulness or unlawfulness of outsourcing.
Partial conclusion: unless there is a better understanding, pending cases must proceed pursuant to their status, and shall respect the regular judgment of the subject-matter pleaded in them.
Apparently, the biggest difficulty will be for the lawsuits under res judicata. It will not be possible to exhaust the subject this time, due to its complexity. However, some points may be summed up, as follows:
- a) If the Federal Supreme Court decides for the constitutionality of outsourcing, it seems possible to say that the decisions that had considered it unlawful may be deconstituted – except if that court somehow modulated the effects of its decision (a situation in which the judgment of the Federal Supreme Court would be pragmatically valid as a message about the constitutionality of the new law, supposing that there is no claim for concentrated control in relation to it);
- b) This deconstitution, in theory, should happen by means of a motion for a new judgment, but without the obstacle of the precedent 343 issued by the Federal Supreme Court because, in accordance with what was decided at the time of the acceptance of the general repercussion, it is considered constitutional matter, and thus, it removes the incidence of the precedent (unless the Federal Supreme Court withdraws this legal qualification out of the litigation);
- c) However, once the constitutionality of outsourcing is confirmed, the judgments that had declared it unlawful – and that had become res judicata before the new Code of Civil Procedure – would be in accordance with the hypothesis set forth in art. 475-L, first paragraph, final part of the 1973 Code of Civil Procedure. This could allow one to say that the obligations granted in such judgments could be considered unenforceable even without a motion for a new judgment;
- d) If we stick to the above hypothesis, judgments that had declared outsourcing unlawful, but had become res judicata after the enforcement of the new CCP, would be in accordance with what is set forth in paragraph 12 of art. 525 of that statute, although with a difference: there would be a motion for a new judgment, whose expiring deadline, however, would only commence after the judgment by the Federal Superior Court (paragraph 15 of article 525 of the 2015 CCP) – having in mind that this rule itself is also constitutional…
Final conclusion: in the case of judgments that have already become res judicata – and this reasoning could, depending on the examination of concrete situations, be somehow expanded to the conduct adjustment terms already consolidated – the granting of the lawfulness of outsourcing by the Federal Supreme Court may give rise to considerable possibilities for the review of judgments against decisions based on the unlawfulness of the above mentioned practice.