Modulação de efeitos de decisões em matéria de instituição e majoração de tributos: estudo de casos

Abstract

This study aims to analyze the technique of attribution of prospective effects on judicial review by Brazil’s Supreme Court, when analyzing the constitutionality of laws which established or increased taxes . To do so, we attempted to bring essential elements for understanding the importance of judicial review in maintaining the rule of law, since its historical evolution to its present contours and, more specifically, its implementation in Brazil. After that, we tried to demonstrate the exceptional circumstances that justify the attribution of prospective effects on judicial review in Brazil, especially when there is the prevalence a constitutional principle over the sovereignty of the Constitution, as well as the strict requirements in the event of a clash of principles, especially after the enactment of Law No. 9.868/99. Following that, we analyzed the possibility of attribution of prospective effects on judicial review of laws that established or increased taxes, considering the inherent characteristics of the tax law in Brazil. At the end, we sought the jurisprudence (case law) of the Supreme Court as to whether, in respect of the institution or increase of taxes, the Court considers it possible to attribute prospective effects on judicial review, as well as if arguments like “financial breakdown of Treasury” justify the mitigation of the invalidity of the unconstitutional law