Articles 1/8/2018

The necessity for making an administrative complaint before filing a lawsuit

Gustavo Henrique de Faria Passarelli – and

Lourenço Rabelo Cardoso –

The number of lawsuits now pending in Brazil is growing every day, either due to the inefficiency of the courts or lack of adequate manpower to accompany said growth.

It is important to note, especially as respects the consumer goods sector, that it has become increasingly common to file lawsuits for almost any reason. Some of these lawsuits are brought by those asserting what they believe to be their legal rights and others are brought by those taking advantage of the courts to obtain financial benefit. In the Special Civil Courts, this sort of opportunism is particularly common as there are no court filing fees.

And, as has been verified, some of these consumers don’t contact the company to attempt to resolve the problem. Rather, their first choice of remedy is to file a lawsuit.

Article 4, Subsection V of the Brazilian Consumer Defense Code (CDC), however, expressly provides that consumers should first attempt to resolve the conflict administratively before looking to the courts:

Art. 4º, Subsection V – incentivize the creation of efficient means for controlling the quality and safety of products and services, as well as consumer conflict resolution alternative mechanisms;

Case law has also taken this position, to the effect that there are no grounds for legal action should there exist no conflict.[1]

Court decision in this respect is clear in stating that there should be no legal recourse for the consumer unless an administrative complaint had been first made by the consumer that was not adequately resolved.

Along these lines a number of courts, among them those of the States of Bahia, Maranhão, Mato Grosso, Pernambuco, Piauí, Rondônia, Rio Grande do Sul, São Paulo, Santa Catarina, and Sergipe are already partners in a service offered by the Federal Government to handle  consumer complaints by website.[2]

This platform allows the consumer to make his or her complaint directly via an efficient means that is free of charge. Should the matter not be resolved this way, the fact that there was first an attempt at resolution via administrative complaint could serve as extremely useful substantiation of a viable legal claim should a lawsuit then be filed.

Thus it is more than apparent that the correct course is for the consumer to file an administratively complaint before seeking to file a legal action. There is efficient conflict resolution and a concomitant reduction of cases before the already-crowded courts as a consequence,

Almeida Advogados has a team of lawyers specialized in Consumer Law, which team is available to provide any clarification necessary on the subject matter of this article.



[1] Superior Court of Justice (STJ) Special Appeal No. 1684566/SP, Second Chamber Presiding Judge HERMAN BENJAMIN, decided on 09/19/2017, published via the Electronic Court Journal on 10/09/2017.