Content published on the Blog Fausto Macedo, in Estadão:
https://politica.estadao.com.br/blogs/fausto-macedo/a-conciliacao-previa-como-exigencia-na-acao-judicial-contra-fornecedores/
Prior conciliation as a requirement in a lawsuit against suppliers
Larissa Giansante*
June 2, 2019
The fact that the Brazilian Judiciary is overloaded, making it slow, cannot serve as the sole justification for the consumer to be forced to attempt an eventual agreement through the customer service and conciliation channels on the digital mediation platforms.
Obviously, the recommended course is that, before filing a lawsuit, the consumer seek from the company the solution to the problem and inconvenience caused, since, in the event of success in their request, they will achieve resolution in a more agile and effective manner.
However, as is known, it is rare for companies to have consumer service platforms with the tools necessary to meet the demands of their clients, which makes ever greater the number of lawsuits seeking the protection of their rights before the courts.
Some courts, particularly in the South of the country, have understood that there is a need to attempt conciliation through an administrative complaint before the digital mediation platform of the National Council of Justice (CNJ) or to register a request before the digital platform Consumidor.gov.br, as a condition for the filing of a lawsuit.
Naturally, with the entry into force of the current Code of Civil Procedure, there is a tendency of the Judiciary to promote and encourage the conciliation of the parties in dispute. To this end, the legislator even created a rule that requires the holding of a prior conciliation hearing, aiming at the closure of disputes even before the presentation of a defense by the companies, with the aim of reducing the quantity of existing lawsuits.
However, notwithstanding the legal provision introduced by article 3 of the Code of Civil Procedure, it is inadmissible for such a rule to override the constitutional rights provided for in article 5, item XXXV of the Federal Constitution, which ensures everyone’s access to justice.
Indeed, it is important to stress that a large part of the population does not even have knowledge of the existence of such digital platforms, there being no way to make the use of these mandatory as an indispensable “prerequisite” for the filing of a lawsuit.
That is, it is acceptable to use the guidance to seek prior conciliation as a way of verifying that the consumer has exhausted the amicable forms of judicial remedy, but it is abusive to understand that their claim lacks the necessary foundation by the mere fact of not having used the tools indicated by the court.
The attempt by the consumer to contact the company supplying products or services that caused them dissatisfaction is something usual, and even recommended, but which cannot, in itself, prevent the consumer from seeking justice when they feel wronged.
Thus, the tendency is that the scarce judicial decisions holding for the obligatoriness of seeking conciliation through the digital platforms before the filing of the lawsuit will not prevail, since the consumer’s right must be placed as a priority, given the indisputable vulnerability in comparison to the supplier.
Finally, it is important to understand that encouraging judicial settlement is not to be confused with the restriction of the consumer’s rights, under penalty of violating the fundamental precept contained in the principle of free access to the Judiciary.
*Larissa Giansante, lawyer in the civil and commercial areas of Lassori Advogados
← Back to blog