• close

    Fundamental consumer rights and its perspective overview in the Brazilian Law: the importance of constitutional support. Advances and expectations after 30 years of the CDC

    Prof. Dr. Sebastião Sérgio da Silveira e Arnaldo Rodrigues Neto

    1. INTRODUCTION

    The present study aims at analyzing, under the Brazilian legal system, Consumer Rights and its Constitutional foundation. In this way, starting from the fundamental idea of a Right protected by the Brazilian Constitution, it is denoted as a substantial corollary that aims at the affirmative protection of consumers foreseen in articles 5, item XXXII and 170, item V, of the Federal Constitution, concluded by article 48 of ADCT.

    Given the importance and relevance of the theme, which is justified even more in times of global crisis as the one currently experienced by the entire world population, situations that, unfortunately, expose a number of arbitrary and inconsistent against the less favored portions of the population (in any aspect), especially the consumer class, we sought to organize the study in three parts, which will assist in the understanding and didactic disposition of the theme.

    In effect, the purpose is to ponder the constitutional protection of the consumer based on its triple function that derives from the Federal Constitution itself, which can be considered as follows: a) to promote the defense of consumers, in the list of fundamental rights and guarantees (art. 5, XXXII, of the FC); b) ensure consumer protection as a general principle of economic activity (art. 170, V, of the FC); and, finally, c) systematize this special protection through codification (art. 48 of the ADCT).

    The present study is based on bibliographic and jurisprudential research, with emphasis on the guiding constitutional principles, on consumer relations (CDC), and on the collective procedural seara in the protection of consumer rights. Furthermore, as for the approach, the research is qualitative, and the data collected is analyzed using the inductive, hypothetical-deductive, and dialectical methods.

    The research presents a structure divided into ten chapters, being the introduction, eight development chapters, and the conclusion.

    The first development chapter presents an analysis of the evolution of Consumer Law and the protective constitutional provision, followed, in a second moment, by an approach to consumer protection as a fundamental Right and the principled view of its importance for the maintenance of the economic order.

    In the third and fourth chapters, we seek to demonstrate that as the years have gone by and, consequently, with the improvement of consumer legislation, the constitutional protective norms have become more effective and appropriate through normative densification.

    Following in a peremptory manner, the fifth development chapter addresses the Consumer Defense Code itself with a panoramic view of consumer protection in Brazilian Law. While the final two development chapters address concrete issues and the current relevance of the theme to everyday, consumer situations arising from technological innovations and the emergence of new media and forms of relationships.

    2. CONSUMER RIGHTS AND THEIR CONSTITUTIONAL PROTECTION

    Since the birth of the Federal Constitution of 1988, the legislator evidenced the relevance of consumer rights by raising them to the level of fundamental constitutional rights. Thus, in an explicit way, it inserted the State’s obligation to promote consumer protection in Title II of CF-88 (Fundamental Rights and Guarantees).

    In this way, the inclusion of consumer protection in the Constitution represents the harmonization of the functions of the State, while it is responsible for intervening in situations of inequality and social imbalance when it is not possible to solve them satisfactorily through political or economic mechanisms alone.

    On the other hand, as a fundamental law, the Federal Constitution is endowed with basic provisions aimed at the organization of the State, as well as fundamental rights and guarantees, assuming a hierarchical superiority status over other types of legal rules and, therefore, serving as the fundamental substratum of validity of any and all rules aimed at consumer protection.

    In this sense, Cláudia Lima Marques (2021, p.27) asserts that “the Federal Constitution of 1988 is the origin of the tutelary codification of consumer rights in Brazil and the institutional guarantee of the existence and effectiveness of Consumer Law”.

    This is the direct and pragmatic consequence of this provision allowing for the recognition of the consumer as a new subject of rights, whether individual or collective, and of the assumption of commitments by the State to ensure his protection, assuring him the ownership of fundamental constitutional rights (Article 5, XXXII of the FC), as well as a special codified legislation (Article 48 of the ADCT) and, furthermore, the convalidation of consumer protection as a principle of the Economic Order (Article 170, V of the FC).

    Another important point brought by the original legislator was the possibility (provision) of drafting a Consumer Defense Code, according to Article 48 of ADCT, within 120 days from the promulgation of the Federal Constitution.This fact, in Brazil, occurred two years later, with the publication of the Consumer Defense Code, providing for consumer protection and other provisions (Law no. 8.078/1990). 8.078/1990).

    According to Bruno Miragem (2019, p.42):

    Article 5, item XXXII, by using the phrase “in the form of the law”, inserted a specific determination to the ordinary legislator to detail the constitutional protection. In this way, it is possible to elaborate specific protection norms, in order to perfect the protection foreseen in the Federal Constitution.

    Thus, it is evident that consumer law defines, in summary, a set of rules intended for the fulfillment of this triple constitutional consignment: to promote consumer protection (art. 5, XXXII, of the FC); ensure consumer protection as a general principle of economic activity (art. 170, V, of the FC); and, finally, organize special protection through codification (art. 48 of the ADCT).

    Without prejudice, there is also the provision of Article 129, item III, of the Federal Constitution, which established, as one of the institutional functions of the Public Prosecutor’s Office, to promote public civil action for the protection of diffuse and collective interests. This is supported by Article 81 of the Consumer Protection Code, an important milestone in the legal evolution of the protection of individual and collective consumer rights and interests.

    3. CONSUMER PROTECTION AS A FUNDAMENTAL RIGHT

    According to Article 5, item XXXII, of the Federal Constitution of 1988, the State will promote Consumer Protection. We have, therefore, a fundamental right that obliges the State to adopt certain positive provisions by means of active actions, aiming to protect consumers and, consequently, to give greater balance to consumer relations.

    In the doctrine of Cláudia Lima Marques (2021, p.26), this assertion can be understood as follows:

    To affirmatively ensure that the judicial state, the executive state, and the legislative state positively defend and protect the interests of these consumers, in the right to promote deliberate positive actions to ensure the integrity of the exercise of fundamental rights.

    In the same sense, it is evident that such support is a duty of the State, while the guarantee of fundamental rights requires the State to leave its traditional position of adversary to occupy its position as guarantor of such rights, and it is up to the government not only to act to prohibit excesses, but mainly to avoid omission.

    Turning to the exclusive core of consumer relations law, consumer protection finds its foundation in the parameter of intrinsic inequality between the subjects involved, which is no small matter. The great disparity between the entities that make up the consumer relationship is evident, leading, as a consequence, to the search for a greater balance through the normative provisions affected, thus recognizing such rights as fundamental in favor of consumers to, on the other hand, equalize and prevent the interests of the strongest entities from prevailing.

    As a conceptualization of the above, there is the need to reach equity criteria by means of laws that can rebalance such viscerally unequal relations, that is, making the maxim “treat unequals unequally according to their inequalities” to prevail.

    Bruno Miragem (2019, p. 37) ensures that the figure of factual inequality between parties of the consumption relationship is what brings legitimacy to the treatment as exposed:

    (…) Inequality, in casu, resides in the favored position of the supplier in relation to the consumer, especially due to a presupposed economic or technical power, which necessarily corresponds to a weak position and exposure of the consumer, which is conventionally called vulnerability of the latter in relation to the former.

    Thus, there is no doubt that consumer protection as a fundamental right is rooted in the intrinsic inequality of the relationships between consumers and suppliers. Undisputed fact. Thus, the State’s duty to intervene in relationships to foster the harmonization of antagonistic interests, using the principle of equality in its broadest sense, aiming to preserve consumers, vulnerable and hyposufficient entities in the conception of the Law, arises as a remedy.

    4. CONSUMER PROTECTION AND THE ECONOMIC ORDER

    In continuity, the original legislator included the “consumer’s defense” in the list of general principles of economic activity, giving it the equivalent dimension attributed to the principles of national sovereignty, free competition, private property, among others.

    According to article 170, caput, of CF-88, the economic order is based, simultaneously, on the valuation of human work and free enterprise, with the aim of ensuring a dignified existence for all, according to the dictates of social justice, and must observe the principles indicated in the clauses of said article 170.

    According to Manoel Jorge e Silva Neto (2017, p. 675): “the ‘economic order’ consists of a normative plexus, of constitutional nature, in which the option for an economic model and the way in which the State’s intervention in the economic domain should operate are fixed”.

    In effect, this conceptualization shows that the economic order is intended to ensure the dignified existence of all, obviously respecting the principle of private property. In this context, it is evident that the CF/88 was substantially concerned with the principle of the dignity of the human person by discerning the balance of forces: on the one hand, the vision of a “market economy”, of a capitalist nature, was evident, and, on the other, it sought to protect consumer protection by elevating their rights to the constitutional high ground.

    In effect, the concept applicable to economic freedom cannot be absolute under penalty of undermining the purpose of the economic order itself and the main role of consumer protection, which is aimed at ensuring the dignity of the human being.

    Therefore, the consequence of the above leads to the conclusion that the principle of consumer protection is not limited to a series of legal provisions that aim at prohibiting and/or limiting private autonomy, but something much broader and more effective, as it denotes an intervening or promotional character, of effectiveness of the constitutional precepts. According to the doctrine of Bruno Miragem (2008, p.41), the importance of the Consumer Protection Principle is evident, because it does not represent only a prohibitive or limiting content of the will of each one, but mainly an intervening or promoting commandment of the basic precepts of the Constitution.

    5. THE NORMATIVE DENSIFICATION OF CONSTITUTIONAL PROTECTION

     As a consequence of the constitutional principle of consumer protection and defense, provided in Article 5, item XXXII, of the Federal Constitution of 1988, the State is responsible for promoting the effective protection of consumer rights and interests, using, for this purpose, the fundamental rights.

    In view of this, the Consumer Protection Code solidified what was provided by CF/88, while in its Chapter III, Title I, listed those who would be the basic consumer rights, which, in turn, are elevated to the category of basic, because besides serving as a foundation for legal protection, they act as a cornerstone to support the legislative framework applicable to consumer relations.

    According to the doctrine of Leonardo de Medeiros Garcia (2011, p. 63), it is inseparable the idea that the instrumentalization of this whole complex system involving consumer relations will occur through those that would be the basic consumer rights: “(….) when listing the consumer rights, the legislator made a point of emphasizing that these are basic rights, i.e., those that will serve as a basis for guiding and instrumentalizing consumer relations”.

    Therefore, the legal provision contained in Article 6 of the CDC, when bringing what would be the basic rights, evidences the focus on consumer protection precisely because of their condition of natural vulnerability within consumer relations. Furthermore, as already mentioned, the inequality between the subjects of this polarized relationship plays an equally important role, leading the State, as it should, to interfere and dispose of such rights with the aim of balancing antagonistic interests, inherent to the economic model and the market.

    Finally, it is no less relevant to point out that the list of basic rights presented in article 6 of the CDC is merely exemplary. And this is due to a necessary and applicable logic to the context: violations of consumer law principles not considered in the aforementioned legal provision will find its normative support and foundation, thus ensuring broad legal protection, starting from the constitutional norms of consumer protection, contained in the Federal Constitution of 1988.

    6.  THE CDC AND THE PANORAMA OF CONSUMER PROTECTION IN BRAZILIAN LAW

    Before we go into the specific rights of consumers, it is important to understand the origins and the consequent evolution of consumer law, which today is certainly considered a specific branch of law.

    In this context, Consumer Law, as a set of rules and principles, aims primarily at protecting consumers from suppliers, in order to balance this naturally disparate and polarized relationship.

    Despite its recent origin as a branch of Law, globally, consumer protection has its origin in the emergence of contracts, undergoing substantial changes with the Revolutions of the 18th century (and the influence on the Contractual Theory), gaining more body and shape with the Industrial Revolution and the emergence of the “Mass Society” to finally reach other formats more polished and better prepared to regulate the social coexistence, such as the Adhesion Contracts, which, in short, act as regulatory instruments of this Mass Society.

    Thus, taking into consideration such relationships and the need for the State to intervene in the relationships between suppliers and consumers, the “consumer movement” arose in various corners of the world, so that the social function of private law is to effectively protect people from the provocations of the massified, globalized, and computerized society:

    Consumer protection, to be conferred by means of the normatization of consumer law, has become a permanent need for all developed or developing nations, urging the adoption of preventive, coercive and punitive measures to ensure consumer protection of life, health, safety, freedom of choice and equality of conditions in contracts. (DONATO, 1993, p.18-19)

    According to Newton de Lucca’s (2008, p. 48) exegesis, although present in Roman law, the need for consumer protection, in the terms that are sought today, is something that, historically, can be considered current:

    “[…] there have always been, throughout the ages, numerous manifestations aimed at protecting consumers, since Roman law. But it was something isolated, fragmented, and anodyne, without any relation to the reality of the economic power of the producing agents, as effectively occurred from the 1960s on. Such manifestations are commonly remembered, yes, but merely out of historical curiosity, and not because they can serve as a basis for interpreting the current phenomenon of consumerism.

    In fact, in the mid-nineteenth century, the “consumer movement” began to take its first steps in the United States, resulting in the decision handed down by the Supreme Court in the case of Thomas vs. Winchester in 1852, with its foundations based on the protective principles of consumer law.

    In this sense, the United States presents itself as a precursor in the fight for consumer rights with representative manifestations throughout the 19th century, with the creation of the Shermann Act, the so-called American antitrust law of 1890, as a major milestone, which fully established the idea of consumer protection in the American legal system. At the end of the 19th century, the first organization formed by lawyers in New York arose, which aimed to provide better working conditions for commercial employees, called the “New York Consumers League” founded in 1891, with the purpose of providing better relationships with the customers of commercial establishments, which later gave rise to the “National Consumers League” in 1899.

    Between the 1930s and 1940s, the consumer movement began to worry about issues involving information, quality and safety of products and services (Serrano, 2003), with emphasis on the creation of the organization “Consumers Union” in 1936, which, in turn started certain activities aimed at comparing products and services, making consumers aware through information so that they could exercise their purchasing power by choosing better quality products.

    However, one cannot forget that it was from 1960 on that this consumer movement was implemented based on the social and cultural awareness of the need to defend those who naturally occupied the weakest side of this consumer relation.

    In 1962, in a speech before the US Congress, then-President John Kennedy stressed the need for governments to start recognizing basic consumer rights and to implement state policies capable of guaranteeing them, launching a new challenge:

    Consider that ‘we are all consumers’, at some point in our lives we have this status, this social and economic role, these legitimate rights or interests, which are individual, but are also the same in the identifiable group (collective) or not (diffuse), that occupies that consumer position (MARQUES, 2021, p.24)

    In fact, the first concrete manifestations aimed at establishing real guidelines appear, culminating with the institution by the US Congress of four fundamental rights: to security; to information; to choice; and, finally, to the right to be heard.

    The consequence of the speech was huge, leading the United Nations Organization (ONU) itself to establish March 15th as the “international consumer day” and, mainly, to establish guidelines for this legislation and consolidate the idea that this is a new generation (or dimension) human right, a social and economic right, a right of material equality of the weakest.

    Parallel to the USA, Europe has seen the consumer protection trend spreading, especially since the founding of a non-governmental consumer protection entity around the world, the IOCU (International Organization of Consumers Unions).

    After the issue of numerous sparse norms, the UN (United Nations Organization), after more than two decades, approved, in 1985, Resolution No. 39/248, which established as general principles the need for governments to develop, strengthen or maintain an energetic policy for consumer protection, establishing guidelines that address physical safety, the promotion and protection of economic interests of consumers, precepts to ensure safety and quality of products and services, among other measures aimed at effective consumer protection.

    Among the provisions brought by Resolution 39/248, the UN defined some premises of consumer protection, complementing with four more rights to those proposed by the United States, namely: to redress, to education for consumption, to a healthy environment, and finally, the right to access to goods and services.

    In Brazil, we see a gradual maturing of the fight for citizens’ rights. In the 1960s, at the time of the “Brazilian economic miracle”, there were few discussions about issues pertaining to consumer rights, with emphasis on the creation of PROCON by the Government of the State of São Paulo, in 1976, the first public consumer protection agency.

    Already in the 1980s, consumer associations and civil entities for protection and defense began to emerge. In this context, it was noted that, despite the existence of laws – still incipient, but which minimally guaranteed such rights, a large portion of the population lacked information and the claims both to the government and to companies lacked representativeness.

    In 1985, the then President of the Republic José Sarney, created the CNDC – Conselho Nacional de Defesa do Consumidor (National Consumer Defense Council) through Decree No. 91.469/1985, responsible, among other things, for preparing the Project for the National Consumer Defense Policy. And, in this historical context, on the occasion of the National Constituent Assembly, installed in February 1987, it ended up harboring such international concern, inserting the consumer’s right among the fundamental rights and guarantees, establishing in article 5, subsection XXXII, that “the State will promote, in the form of the law, the defense of the consumer.”

    Moreover, as previously discussed, it gave consumer protection the status of a principle of the economic order (art. 170, item V, CF) alongside the principles of national sovereignty (item I), private property (item II), social function of property (item III), free competition (item IV), protection of the environment (item VI), reduction of regional and(clause IV), defense of the environment (clause VI), reduction of regional and social inequalities (clause VII), search for full employment (clause VIII) and, finally, the favorable treatment for small businesses (clause IX).

    It should also be noted that in the same year of 1987, IDEC – Brazilian Institute for Consumer Defense – was created, a non-profit association, disconnected from any company, government or political party, with the mission of “promoting education, awareness, defense of consumer rights and ethics in consumer relations, with total political and economic independence”.

    Likewise, consumer protection, besides being elevated with “status” to the heights of economic order principle, is also considered:

    (…) the end sought by the State itself, in achieving its common good, considering that the existence of the State itself is only conceivable to the extent that minimum and indispensable conditions are established so that every human being can be fully realized (FILOMENO, 2014, p. 1-2).

    Without prejudice, such specific constitutional provisions regarding consumer protection should be further informed and interpreted based on the fundamental principle of the dignity of the human person, as a foundation of the Democratic State of Law. In this sense, it is worth pointing out that the legislator intended to make consumer protection viable in a very strong way:

    (…) the State, through all its agencies and functions, must start from the assumption that the consumer is the vulnerable part of consumer relations, claiming, therefore, a protective intervention, both in the sense of ensuring a legal protection system and in the sense of creating bodies that prevent or repress injuries to consumers (RAGAZZI, 2010, p. 27).

    Which, in effect means that:

    Private law today suffers a direct influence of the Constitution, the new public order imposed by it, and many private relationships, previously left to the discretion of the parties, get a new legal relevance and a consequent state control, which has been called ‘publicization of private law’ (MARQUES, 2021, p. 29).

    In order to make the first constitutional rule effective (article 5, clause XXXII), of programmatic content and limited effectiveness, the legislator established, in the Transitory Constitutional Dispositions Act, a deadline of six months for the edition of the Consumer Defense Code (CDC).

    However, it was only almost two years after the promulgation of the 1988 Federal Constitution that Law No. 8.078/1990 was sanctioned, regulating, at an infra-constitutional level, the fundamental right of “consumer defense”.

    In 1990, the Consumer Defense Code was finally promulgated, with ample constitutional support. Serving as a milestone in the awareness of all citizens, it has effectively promoted the education of Brazilians about their rights and duties in consumer relations. Since it came into effect, it has substantially supported the efforts made over the years by civil and governmental entities dedicated to such a protective purpose, so that, nowadays, the consumer perceives himself as protected and, mainly, can avail himself of his rights both in terms of individual claims and, mainly, through collective protection.

    7. THE CONSUMER’S DEFENSE CODE

    The Brazilian Consumer Defense Code is based on Law No. 8078/90 and provides for consumer protection and other matters related to the subject, including issues that have not been regulated until now on diffuse and collective rights, both in material and in procedural aspects. It establishes, according to its 1st article, protection norms of public order and social interest:

    Art. 1st This code establishes norms for consumer protection and defense, of public order and social interest, in the terms of arts. 5th, clause XXXII, 170, clause V, of the Federal Constitution, and art. 48 of its Transitory Provisions.

    Based on the premise of protecting the consumer, who is the vulnerable party in the consumer relation, the CDC established cogent norms or public order, which cannot be invalidated or compromised by the will of the parties, and this is essential for the desired protection to be effective and meet the needs of consumers.

    In continuity with the provisions of the Consumer Defense Code, it is evident the legislator’s concern in conceptualizing the consumer figure according to the provisions of Article 2. Thus, in light of the codification under review, a consumer is considered to be “every natural or legal person who acquires or uses a product or service as a final recipient.” It is also up to the paragraph of the aforementioned article to bring the concept involving the format of the assimilation consumer.

    Thus, according to art. 2 of the CDC, a consumer is any individual or legal entity that acquires or uses a product or service as a final consumer. The sole paragraph of the same article equates consumer to the group of people, even if indeterminable, who act intervening in consumer relations.

    Likewise, article 17 of the CDC sets out the relevant concept of liability for the fact of the product and service, valuing the consumer figure, while, for the purposes of the Code, the eventual victims of the event are equated to all consumers.

    Therefore, the figure of the consumer by equivalence aims to safeguard the figure of those who were also victims of the event, but who are not a direct part of the consumption relationship, even though they bear the damage that resulted from the failure to provide the service or product contracted by third parties.

    On the other hand, the elements and principles that formed the basis of the Brazilian Consumer Defense Code must be rigorously analyzed, as they allow for a global understanding of the real and effective protection of consumers. Without such an approach, it becomes difficult to understand the motives and reasons, as well as the legislator’s objectives in constructing this very important instrument for protecting consumer relations.

    In light of this, constitutional principles such as the dignity of the human person and the economic order are highlighted in the scope of consumer relations, which are essential for the equitable and fair development of consumer affinities.

    First of all, the principle of the dignity of the human person in the context of Consumer Law is stated in item III of Article 1 of the Federal Constitution, which is one of the fundamental principles, as stated by the legislator.

    Such a principle speaks for itself. Human dignity has a prominent place in the legal and social context, because it is inherent to the person. Therefore, the principle of the dignity of the human person is closely related to the caput of Article 4 of the Consumer Protection Code. To wit:

    Art. 4 The National Policy for Consumer Relations aims at meeting consumers’ needs, respecting their dignity, health, and safety, protecting their economic interests, improving their quality of life, as well as the transparency and harmony of consumer relations.

    In effect, both the constitutional text and the CDC start from the premise that the consumer is the vulnerable link in the consumer relationship to reach a perspective of balance in contractual relations of this nature through effective consumer protection.

    Likewise, with the purpose of protecting the consumer, the State has surrounded itself with other protection mechanisms, such as the regulatory agencies (ANATEL, ANEEL, ANS, ANVISA, ANAC etc.) with the purpose of inspecting, controlling and regulating services and products that make up the consumer market.

    Finally, in addition to regulatory agencies, the Consumer Protection and Defense Program was created with the purpose of providing guidance to consumers on aspects related to contractual relations, in addition to also seeking to mediate possible conflicts arising from such relations and to serve as an inspector, with the purpose of avoiding possible abusive practices harmful to the most vulnerable entities.

    Also, of great relevance as a whole, consumer protection is embodied as a principle of the economic order according to the provisions of the Federal Constitution (art. 170).

    The principle of the economic order is based on two extraordinary pillars, which are the valorization of labor and free enterprise. To wit:

    Art. 170. The economic order, founded on the valuation of human work and free enterprise, aims to ensure a dignified existence for all, according to the dictates of social justice, observing the following principles (…) V – Consumer protection (…)

    In this context, although there are multiple doctrinal discussions about the economic model adopted in Brazil, it is evident, above all, that a capitalist style of society was chosen without, however, leaving out the constituent legislator’s search for the effectiveness of social rights, approaching, with the necessary considerations, the State pattern regulated by the Social Welfare.

    And it could not be otherwise, since the aforementioned article aims to protect free enterprise and the right to private property (as provided for in the Universal Declaration of Human Rights – UN 1948, among others), but it also shows the concern for protection that is based on valuing work, consumer protection, the search for a balanced environment, etc.

    Therefore, the Federal Constitution of 1988, when preaching the need for a liberal state through free trade, did not forget to think about the social side, closely correlated to the welfare of all inhabitants and, especially, with the principle of the dignity of the human person, previously mentioned.

    In other words: the principle of the economic order and the foundations that underpin our Democratic State of Law find their pillars in the valorization of labor and free enterprise, according to what is stated in Article 1, item IV, of the Federal Constitution.

    In alignment with the above, the FC provides in its article 170, item V, to ensure all citizens a life with dignity and, therefore, necessarily such a weighting must be considered for consumer protection, given its inexorable condition of vulnerability.

    Therefore, in face of the reality exposed by the adopted model of free trade, the contractual relationships become complex and polarized where the consumer may, given their vulnerability, be harmed by the stronger entity in this relationship, thus the CDC and other normative provisions related to posit positional principle of consumer protection, precisely because it appears in the position of the weakest link in the consumer relationship.

    As a result of the search for respect for the dignity, health, and safety of consumers, as well as the protection of their economic interests, the CDC has brought, over the course of its 30 years, numerous achievements, the main benefit of which is the balance between the parties in consumer relations.

    And all this only became possible from the harmonic application of the legal system, especially the constitutional principles already discussed in this work in close correlation with other principles of infraconstitutional order, among which, according to Miranda (2017), we highlight: the dignity of the human person (art. 1, III, CF); of protection (arts. 6, CDC and 5, XXXII of the FC); of trust; of precaution; of transparency; of vulnerability; of information; of the facilitation of defense; of the review of contractual terms; of the conservation of contracts; of solidarity; of equality and, mainly, the principle of objective good faith and balance in consumer relations, being always up to the parties to proceed with probity, loyalty, solidarity and cooperation in their relations.

    Also, as to the principle of good faith, see what Article 4, III, of the Consumer Defense Code states. It is a rule of conduct, a permanent duty between the parties in their relations. In view of this, article 51, IV, of the CDC determines that contractual clauses related to the supply of products and services that establish obligations considered unfair, abusive, and that place the consumer at an exaggerated disadvantage, that is, incompatible with good faith or equity, are null and void, among others.

    On the other hand, and no less important than the infra-constitutional principles highlighted, the basic consumer rights emerge from the approach of the principles that govern the consumer relationship, as from art. 6 of the Consumer Protection Code, of which we highlight Right to the protection of life, health and safety; Right to freedom of choice and equality in contracts; Right to Information; Right to protection against misleading and abusive advertising; Right to contractual protection; Right to the preventions; Right to contractual protection; Right to the prevention and repair of damages; Right of access to defense organs; Right to reversal of the burden of proof; Right to adequate and effective provision of public services.

    Such principles and, consequently, rights act in the concretion of concepts and in the consolidation of normative values aimed at protecting the interests of consumers, vulnerable entities in the context, being salutary to the adjustment of the natural imbalance arising from the consumption relation, while they express the real intention of the rule and serve as interpretative support in case of divergence or doubt in the interpretation of the law.

    8. OVERVIEW IN BRAZIL

    Over the 30 years since the Consumer Protection and Defense Code came into effect (Federal Law No. 8.078, 1990 – CDC), many were the advances and challenges faced by the consumer society, especially with the inclusion of the consumer in the current era of digital economy.

    Although our CDC was built in a historical context where many of the current digital technologies and novelties did not exist, its principles, guarantees, and rights are still contemporary, fully apt and considered within this new online panorama, as they deal with the principle rule, besides starting from the assumption of the need to adapt to the constant changes in the consumer market.

    Among the modifications that occurred throughout these 30 years of the CDC, according to Bruno Miragem (2019, p.214), the right to information is the one that: “greater practical repercussion will achieve in the daily life of consumer relations”, because the applicability of such right has gained more strength over the years and, especially, has required a greater commitment from legislators and enforcers of the Law, being, even, object of the Federal Decree no. 7.962 of 2013 (E-commerce Law), which regulates the Consumer Protection Code to provide for the acquisition of products and services in electronic commerce.

    The aforementioned E-commerce Law allowed consumers and suppliers (stores that operate through e-commerce) to have more security in their commercial relations through the provision of clearer and objective information about products and services after online contracting, in addition to establishing rules and means of service to facilitate access to consumers whenever necessary.

    With the emergence of new paradigms, the consumer market and the application of the normative provisions of the CDC are in constant change, especially with the emergence of social networks, which enabled consumers to expose, with substantial representation, the problems arising from contractual relations to which they were bound, including through platforms for mediation and composition, as well as through the new possibilities of purchasing products online, services or digital content through mobile applications, as well as new ways of entering into a contractual relationship in the so-called “sharing economy”.

    Due to such circumstances arising from the emergence of new technologies and, consequently, of new problems affecting consumer relations, the Brazilian legislator, aiming to keep up with such evolution, edited the Marco Civil da Internet (Federal Law no. 12.965, of 2014), which establishes principles, guarantees, rights and duties for the use of the internet in Brazil and the General Law of Personal Data Protection (Federal Law No. 13,709 of 2018).

    A small digression on the subject is in order here: the legislator’s concern in keeping up with the social advances resulting from new technologies is urgent and, with the proper interpretative permission, is to be praised, for without this concern, it would be impossible to overcome the challenge of the CDC’s interpretative updating in the face of the digital economy. Much criticism is made (and rightly so in many cases), but such concern on the part of the Brazilian legislator in keeping the normative framework pertaining to consumer relations up to date and, above all, contemporary, is praiseworthy – so much so that, ictu oculi, the CDC is a law that has worked very well.

    But, notwithstanding the importance of the legislative concern mentioned above, which results in a consumerist codification capable of meeting contemporary needs, there are situations in the current consumer market that are challenging and deserve to be highlighted:

    (i) the implementation of the new Positive Register created by Federal Law 12,414/2011 and regulated by Federal Decree 9,936/2019;

    (ii) the emergence of state and municipal Consumer Defense Codes (Pernambuco’s State Consumer Defense Code (State Law No. 16,559 of 2019) gained much media coverage during 2019).

    (iii) the creation of a Special Commission to issue an opinion on Bill no. 3,515/2015, which regulates consumer credit and provides for the prevention and treatment of over-indebtedness (Federal Law Project no. 3,515/2015 (PLS no. 283/2012) and updates the CDC;

    (iv) the issue of a new ordinance by the Ministry of Justice and Public Safety that regulates and updates the recall procedure (Ordinance No. 618 of 2019);

    (v) the increased adhesion of suppliers to the consumidor.gov.br platform and other online dispute resolution methods;

    (vi) the debates on de-judicialization and access to fair legal order in the consumer market (WATANABE 2019);

    (vii) the valuation of consumer time in addressing consumer demands. (BERGSTEIN, 2019).

    In a market of extreme competition, where consumers have the condition and opportunity to react to any infringement of their rights immediately in the online environment (complaints, suggestions, perceptions, etc.) new companies appear.), new companies emerge that, at the time of the CDC’s elaboration, could not even be imagined.

    These startups are now part of the consumer market, offering substantial solutions and, above all, based not only on the application and enforcement of the law, but especially in the adoption of good practices in the relationship with the consumer, an extremely important and paradigmatic concept, since it changes the view of the consumer relationship while it is essentially concerned with the consumer-supplier bond.

    But the improvement cannot stop there. The needs arise as society evolves, creating new challenges to be faced in the coming years of validity of the Consumer Code and its possible updates, a conclusion that is reached when analyzing the developments of the Superindebtedness Bill such as: the importance and role of suppliers in the Internet of Things; the new paradigms presented by sustainability and the circular economy; and the international electronic commerce of goods and services.

    Therefore, there are many challenges to be faced with the emergence of new technologies and new consumer relations, and it is up to the enforcers of the law to keep alive the concern with the constant evolution of the consumer regulatory framework.

    And it will not be an easy task to overcome them, the application of the CDC will necessarily depend on great efforts so that the achievements made over the past 30 years are replicated in the coming years, while with the new digital economy, the social digitalization process and concern with environmental issues and sustainability in the daily lives of consumers who participate actively and globally, the complexity becomes more and more Dantesque.

    As a result, there is a clear need for all the links in this chain to adapt to the new paradigms of the consumer market, and to do so immediately. The laws and norms related to consumer law tend to accompany such transformations without, however, abandoning the support provided by the principles laid out in the Consumer Defense Code.

    9. CONCLUSION

    In 1985, the UN, in its resolution 39/248, established the need for governments to develop ways to protect consumers, through guidelines that address physical safety, protection of economic interests, and standards that ensure the quality and safety of products and services.

    In Brazil, the discussions about consumer protection and defense, only gain prominence near the mentioned resolution, since there was the adoption of growth at any cost with direct reflections on the issue and decision making. It appears in an organized way with the re-democratization, with the Constituent and in the Constitution and the intention of bringing balance to the consumer legal relations, marked by inequality, with the major reference of consumer protection and defense.

    Such protection is highlighted in the current Constitution, in the list of fundamental rights and guarantees, art. 5. Inc. XXXII; as a principle of the economic and financial order, with emphasis on dignified life and social justice; with the facet of the intervening State; and with the temporal reference for the elaboration of the Consumer Defense Code, in the transitory constitutional provisions.

    In 1990, the Consumer Defense Code appeared as a legal support to the Citizen Constitution, and as an instrument for the effectiveness of the fundamental right of consumer protection and defense, with the promotion of the knowledge of the rights and duties of Brazilians.

    The insertion of consumer protection in the Federal Constitution in two distinct titles, Title II and VII, brings the harmonization of these two thematic state functions, since the State and the Constitution are given the main mission of protecting people through fundamental rights and guarantees, and also the function of intervening in unequal situations that present social unbalances and that cannot be solved through political means, both titles are being aimed at the realization of the principle of the dignity of the human person.

    The affirmation of a consumer protection and defense system is based on the inequality inherent in the relations between consumer and supplier, with a constitutional basis, either by the insertion of such protection in the list of fundamental rights or as a principle of the economic and financial order. The need for the State to promote the equalization of opposing interests, preserving consumers, who are recognized as vulnerable and weak, derives from this factual and constitutional recognition.

    Knowing the free trade model adopted by Brazil and that contractual relations are complex, the possibility of the consumer being harmed by the strongest entity in the relationship, the supplier, is understood, leaving to the constitutional system of consumer protection and defense, especially the CDC and legal provisions, the appropriate instruments to ensure the effectiveness of consumer protection.

    In view of the changes that are taking place in the consumer market, especially those that derive from electronic media, such as the change to online sales and the use of social networks to offer products and services, it is necessary to accompany such changes, extending the protection and defense of consumer needs to electronic media as well.

    There are many challenges to be faced with the emergence of new technologies and new virtual contractual models in consumer relations, being up to the enforcers of the law the task of keeping alive the concern with the constant evolution of the consumer legal framework, without neglecting the constitutional basis that points to responses that are able to maintain human dignity, social justice and sustainable growth, even if the current confrontation points to complex situations arising from technological advances and international projection and presence.

    Previous Next
    Close
    Test Caption
    Test Description goes like this