In a recent decision, Minister Gilmar Mendes, of the Federal Supreme Court (“STF”), held that a company belonging to the same economic group as the main debtor, but which was not part of the procedural relationship in the discovery phase, cannot be executed.
With said decision, there is a significant change in the consolidated understanding adopted by the Superior Labor Court (“TST”) for at least 15 years, since the cancellation of TST Precedent 205, which provided that: “the jointly and severally liable party, a member of the economic group, who did not participate in the procedural relationship as a defendant and who, therefore, does not appear in the judicial enforcement instrument as a debtor, cannot be a passive subject in the execution.”
According to the Minister, the understanding of the TST, in the sense of promoting execution against a company that was not part of the procedural relationship in the discovery phase, only because it is part of the same economic group for labor purposes, is contrary to the provisions of paragraph 5 of art. 513 of the Civil Procedure Code of 2015, which expressly states that “compliance with the sentence cannot be promoted against the guarantor, co-obligor or co-responsible party that did not participate in the discovery phase.
In this sense, by disregarding the aforementioned article, the TST would have violated the STF’s Binding Precedent 10 and, consequently, article 97 of the Federal Constitution, which establishes that the discussion of the unconstitutionality of the rule can only be discussed if the reserve of the plenary session is respected, for which reason it was determined that the TST must expressly manifest itself on the constitutionality of the rule, in the form of an incident or plea of unconstitutionality, before the STF can consider the extraordinary appeal.
Although this is not yet a definitive decision, it is a very important precedent in labor executions from now on.
We clarify that the above text is not exhaustive and does not represent or substitute a specific recommendation based on an analysis of the concrete case.