Brazil’s ProvisionalMeasure

1. Introduction

The Provisional Measure No.
1,153, which came into force on December 29, 2022, provides, among other
aspects related to cargo transportation, on how to contract cargo insurance.
Article 3 of the Provisional Measure promoted important changes in Brazilian
Law No. 11,442/07, which deals with the road transport of cargo on behalf of
third parties and for remuneration.

Although the object of the
Provisional Measure under discussion was greater than that referring to cargo
insurance, the present study will address the analysis of the constitutionality,
per se, of the normative modality, in addition to the potential impacts of
changes in the commercial mechanisms for contracting cargo insurance
(subject to road transport) in Brazil.
2. On the Constitutionality of the Provisional Measure: relevance and
urgency?

It is known that, in the
experience of the game of powers, there was a transfiguration of the law
initiative by the Executive Power. Provisional measures, according to
specialized doctrine, have become the most common way of initiating the
legislative process, when originated by the Executive. This is a faster way of
processing the legislative interest arising from the Presidency of the Republic,
when in comparison with the ordinary form, which would be the presentation
of the bill, under the terms of art. 64 of the Federal Constitution. Although the
1st paragraph of the aforementioned article allows the urgent processing of
projects proposed by the Presidency, it is to be recognized that the Provisional
Measure is even faster, because its effects can be immediate, from the
moment of its publication.

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This does not, however, prevent
a thorough analysis of the requirements of relevance and urgency that must
be present in any and all provisional measures, however much the Legislative
Power itself, when analyzing the content of such amendments, tends to
appreciate its content more and less its abstract requirements. The provisional
measure under analysis must, therefore, be submitted to the scrutiny of
investigation regarding both of the aforementioned requirements.

As for the first of them
(relevance), it seems to us that there is no doubt about its existence. Well, road
freight transport is notoriously one of the main (if not the main) way of
transporting goods and values in the Brazilian economy. In this way, any
measure that aims to develop such a market niche will, almost presumably, be
relevant. In such a way, it seems to us that there is not much obstacle to the
recognition of the fulfillment of the first requirement.

A slightly different situation
concerns the fulfillment of the urgency requirement. Although contracting
insurance for cargo subjected to road transport has several nuances and legal
obstacles (which will be explored in the next topic), the fact is that the main
agents involved (shippers, consignees, transporters and insurers) have already
consolidated forms of contracting the modalities of insurance, whether
optional (those that can be freely chosen by the carrier or the shipper), or
mandatory (those that, by law, the carrier must have when subjecting the
cargo to road transport). Although the issue is absolutely relevant for the
national economy, there was no full demonstration of the urgency
requirement, which ended up being trivialized by the Executive Branch and
ignored by the Legislative Branch, when deciding on the approval of
provisional measures.
Art. 62 (Brazilian Federal Constitution). In case of relevance and urgency, the
President of the Republic may adopt provisional measures, with the force of
law, and must submit them immediately to the National Congress.