Brazil

Fábio Medina Osório Partner at Medina Osório Advogados. PhD in Administrative Law from the Complutense University of Madrid, Spain. Master’s in Public Law from the Federal University of Rio Grande do Sul (UFRGS). Former Attorney General of Brazil. President of the International Institute for Studies of State Law (IIEDE). Law No. 14,230 of 25 October 2021 marked a turning point in the discipline of administrative improbity. The reform of Law No. 8,429/1992 introduced major changes: the requirement of specific intent (dolo específico), the possibility of civil non-prosecution agreements, a redefinition of sanctioning hypotheses, and, perhaps most controversially, a new framework for limitation periods and the rules governing prescription during proceedings. The reform quickly met resistance. The National Association of Members of the Public Prosecutor’s Office (CONAMP) filed Direct Action of Unconstitutionality No. 7,236, with a request for interim relief, arguing that several of the new provisions clashed with constitutional principles — from administrative morality and proportionality to legal certainty and the institutional role of the Public Prosecutor’s Office itself. The case gained prominence at the Federal Supreme Court (STF). On 27 December 2022, Justice Alexandre de Moraes, acting as rapporteur, partially granted an injunction, ad referendum of the Plenary, suspending provisions related to limitation periods. That decision was followed, on 16 May 2024, by a complementary vote in plenary, and later, on 23 September 2025, by a new ex officio injunction, motivated by concerns that thousands of improbity cases might imminently become time-barred. At the centre of the debate was Article 2 of Law No. 14,230/2021, which altered several provisions of the Administrative Improbity Law. Article 23, § 5 drew particular attention: it established that, once the limitation period was interrupted, the clock would resume at half the original duration — in other words, four years instead of eight. CONAMP maintained that this was incompatible with the reality of Brazilian litigation, where complex cases routinely take longer than a single judicial instance to conclude, rendering accountability largely ineffective. The Court’s handling of interim relief in ADI 7,236 can be traced through three key moments: December 2022: Moraes granted partial relief, suspending only the provisions on prescription, while rejecting other requests. He relied on the combination of fumus boni iuris and periculum in mora, identifying real risks in the immediate application of the new deadlines. May 2024: In plenary, the rapporteur proposed declaring the partial nullity of Article 23, § 5, striking out the reduction clause. This would preserve the eight-year period after interruption. The judgment, however, was interrupted by requests for review from Justices Gilmar Mendes and Edson Fachin. September 2025: With reports that over eight thousand improbity suits could become time-barred within weeks, Moraes once again intervened, ex officio, to suspend the rule. He stressed that the shortened deadline conflicted with the very logic of improbity proceedings, which demand extensive evidence and adversarial debate. The decisions rested on several pillars: the constitutional protection of probity under Article 37 of the Constitution, the real and imminent risk of mass prescription, the mismatch between shortened deadlines and the complexity of improbity cases, and the Court’s own precedents, such as ARE 843.989-RG, which excluded limitation periods for damages to the Treasury caused by intentional acts. Although the concern was justified, the injunction may be criticised for its sweeping effect. By suspending § 5 outright since 2022, the Court neutralised the provision before any concrete case of prescription had arisen. A more cautious approach — for instance, modulating effects or applying the rule only where actual expiry was at stake — could have preserved at least part of the legislative intent to accelerate proceedings. That said, the subsequent interventions in 2024 and 2025 show sensitivity to judicial realities. State prosecutors presented data demonstrating that the halved deadlines would extinguish thousands of actions in progress. Against this backdrop, the STF’s role as guardian of constitutional effectiveness came to the fore, adjusting the legal text in the name of republican principles and administrative morality. Still, the injunction raises a deeper institutional issue. When relief is granted in such a way that it prevents a provision from ever producing effects, the Plenary’s competence is effectively bypassed. Interim relief should not pre-empt the very substance of constitutional review. In this case, it might have sufficed to act once actual expiry had occurred, leaving the broader question for the Plenary’s judgment. In sum, ADI 7,236 reveals how the Court gradually dismantled the new limitation rules introduced by Law No. 14,230/2021, with particular focus on Article 23, § 5. The main concern was the risk of prescription without inertia by the claimant — a situation at odds with the traditional rationale of Brazilian prescription law. Even so, intermediate solutions could have been crafted, such as linking the reduction of deadlines to proof of procedural inactivity. By suspending the provision wholesale, the rapporteur’s monocratic decisions opened the door to criticism of premature judicial intervention, since the very condition for its application — the passage of time — had not yet materialised. Ultimately, the case illustrates a familiar tension in constitutional adjudication: how to protect administrative probity and ensure accountability without undermining legislative autonomy or disrupting the separation of powers. The challenge remains to ensure that interim measures safeguard constitutional principles without usurping the Plenary’s prerogative to settle the matter definitively.

On Wednesday, 24 September, Brazilian jurist and author Fábio Medina Osório will deliver two engagements in sequence: an online opening lecture for the Universidad Nacional de La Pampa in the afternoon, followed by an in‑person closing conference at FGV Direito Rio in the evening. Online Opening Lecture of the Postgraduate Diploma in Ibero-American Disciplinary Law — National University of La Pampa (online) Time: 16:00–17:00 (UTC−3) Platform: Microsoft Teams (downloading the app is recommended for best performance). Join: [Access via Microsoft Teams](https://teams.microsoft.com/l/meetup-join/19%3ameeting_ZWJlNWY4ZWMtNjM1NS00YzI4LTg0YzAtYWUzY2M0MDc3ODZj%40thread.v2/0?context=%7b%22Tid%22%3a%22cf220266-9c62-44d0-b587-798332d696f6%22%2c%22Oid%22%3a%22fa0709a0-a955-468e-8aa9-f69e1aaa82ba%22%7d) Meeting ID: 297 799 653 315 5 Access code: Yw3MR6yk Audience: A focused cohort of approximately 16–17 legal professionals, ranging from first‑qualification practitioners to master’s‑level specialists, active in the Judiciary and Public Administration, with many serving as disciplinary investigators. Format: Open class; invitees with the link will be admitted to the session.   Closing Conference of the course “Administrative Improbity” — FGV Direito Rio (Botafogo Campus) Time: 19:00–22:00 (BRT / UTC−3) — in person Host: Professor Thaís Marçal Venue: FGV Direito Rio — Unidade Botafogo, Rio de Janeiro Drawing on a focused thematic cut of Medina Osório’s classic treatise Teoria da Improbidade Administrativa, the conference will revisit foundational concepts, recent jurisprudence and practical implications for integrity, compliance and public‑sector accountability.   Timetable (24 September, chronological) 16:00–17:00 (UTC−3) — Online Opening Lecture of the Postgraduate Diploma in Ibero-American Disciplinary Law — National University of La Pampa (Microsoft Teams). 19:00–22:00 (BRT / UTC−3) — Closing Conference of the course “Administrative Improbity” — FGV Direito Rio (Botafogo Campus), in-person.   About Fábio Medina Osório Partner at Medina Osório Advogados. PhD in Administrative Law from the Complutense University of Madrid, Spain. Master’s in Public Law from the Federal University of Rio Grande do Sul (UFRGS). Former Attorney General of Brazil. President of the International Institute for Studies of State Law (IIEDE).

On 18 September 2025, Fábio Medina Osório will take part in the First Seminar on Administrative Sanctioning Law, organised by the Higher School of the Office of the Attorney General of the Union (ESAGU), in Brasília/DF. The event will also be broadcast live on ESAGU’s official YouTube channel. The programme will feature leading authorities and experts, with Medina Osório contributing at two key moments: Opening Session | 9:00 – 9:30 Opening Lecture | 10:15 – 11:15 Theme: “Constitutional Principles of Administrative Sanctioning Law” The seminar, convened by ESAGU, will bring together jurists and members of the Public Advocacy to discuss the foundations, principles and contemporary challenges of Administrative Sanctioning Law. Medina Osório expresses his gratitude to the Attorney General of the Union, Minister Jorge Messias, and to the Director of ESAGU, João Carlos Souto, for the invitation to speak. He also commends them for organising a seminar of such strategic importance for the advancement of this field in Brazil. Event Details: Date: 18 September 2025, 9:00 – 18:00 Venue: Auditorium of the Higher School of the AGU, Brasília/DF Live Broadcast: ESAGU YouTube Channel – www.youtube.com/watch?v=6dyNXXpYGyY

KEYWORDS/SCOPE Shifting of the burden of proof, Brazilian judiciary, Civil procedure, Consumer Protection Code. SUMMARY The shifting of the burden of proof presents challenges to the defense and underscores the importance of legal strategies in Brazil. TEXT Foreign companies operating in Brazil must adapt not only to commercial and cultural differences, but also to the unique features of the local legal system. One such feature is the possibility of shifting the burden of proof - a legal mechanism that can significantly affect how companies should prepare to handle litigation in the country. This procedural dynamic is an exception to the traditional rule that each party must prove the facts it alleges, allowing, in certain situations, the defendant to be required to demonstrate the nonexistence of facts alleged against them. In Brazilian civil procedure, the general rule for the allocation of the burden of proof is set forth in Article 373 of the Code of Civil Procedure (CPC), which establishes that the plaintiff must prove the facts constituting their right, while the defendant is responsible for proving facts that prevent, modify, or extinguish the plaintiff’s right. However, this allocation can be modified by legal provision or by judicial decision, based on the principles of procedural effectiveness and access to justice. The most notable example of a legal provision for the shifting of the burden of proof is found in Article 6, item VIII, of the Consumer Protection Code (CDC). According to this provision, the judge may shift the burden of proof in favor of the consumer when the consumer’s allegations are plausible or when the consumer is at a disadvantage, whether technical, informational, or economic. In practice, this means that, when faced with a reasonable and plausible allegation by the consumer, the supplier may be required to demonstrate, for example, that the product was not defective, that the service was properly provided, or that the information given was clear and sufficient. Although the shifting of the burden of proof under the CDC depends on a reasoned judicial decision, Brazilian case law has shown a strong tendency to apply this mechanism broadly, in order to ensure consumer rights, as consumers are recognized as the vulnerable party in consumer relations. This creates a scenario in which companies must act preventively and strategically, considering that they may be required to produce evidence that, in other legal systems, would be the sole responsibility of the plaintiff. The Code of Civil Procedure, in turn, extends the scope of the shifting of the burden of proof beyond consumer relations. In Article 373, paragraph 1, the CPC provides that the judge may reallocate the burden of proof in cases where producing evidence would be excessively difficult for one party or when the other party is in a better position to produce it. This possibility, although dependent on a request by the parties and governed by the principle of adversarial proceedings, allows the judiciary to adapt the traditional structure of evidentiary allocation in pursuit of substantive justice in the specific case. For companies operating in Brazil, this characteristic of the procedural system is a significant point of attention. The shifting of the burden of proof can result in additional costs, both in the pre-litigation phase and during the course of judicial proceedings, and represents a concrete risk of an adverse judgment in cases where there is insufficient documentary evidence to refute the opposing party’s allegations. In disputes involving consumers, for example, it is common for the company to have to prove that it provided clear and adequate information, that there was no failure in product delivery, or that billing was correctly performed. The absence of evidence or disorganized documentation may lead to a judicial presumption of the company’s liability. For this reason, foreign companies operating in Brazil should adopt strict internal policies for recording interactions with customers, maintain effective systems for tracking products and services, invest in the formalization of contracts and terms of use, and train their legal and operational teams to handle litigation involving the shifting of the burden of proof. Prevention and organization are essential to mitigate risks and avoid losses resulting from an unfavorable allocation of the burden of proof. In summary, the shifting of the burden of proof in the Brazilian judiciary is a tool designed to promote procedural balance and effectiveness in judicial proceedings, but at the same time, it imposes concrete obligations and challenges on companies operating in the country. Understanding this mechanism and preparing accordingly is essential to ensure legal certainty, reduce contingencies, and protect the reputation and sustainability of business operations in Brazil. AUTHORS Raissa Simenes Martins – Partner (Corporate Litigation & Dispute Resolution) Ana Lígia Alves F. Fantinato – Coordinator (Corporate Litigation & Dispute Resolution) Luiza Pattero Foffano – Senior Associate (Corporate Litigation & Dispute Resolution) Isadora Proença Cruz – Intern (Corporate Litigation & Dispute Resolution)