BRAZIL Law and Practice Contributed by: Maria Augusta Rost and Ricardo Barretto, Fenelon Barretto Rost
meet these requirements may lead to adminis - trative or judicial challenges to such acts. The status of the authority responsible for the act can influence which judicial body will hear the case. Additionally, specific rules apply to dif - ferent types of legal actions (see 1.2 Forum for Judicial Review ). 3. Nature of the Decision 3.1 Challenging Primary Legislation In Brazil, primary federal and state legislative acts (laws approved by the federal or state par - liament) can be challenged if they violate consti - tutional provisions. In “diffuse control” , any liti- gant can challenge the constitutionality of a law before any judge or court. The judge will assess whether the normative act is unconstitutional in the context of the specific case at hand. In “concentrated control” , challenges to consti - tutionality are brought directly before the Federal Supreme Court through specific constitutional actions, such as: • a direct action of unconstitutionality; • a declaratory action of constitutionality; or • a claim of non-compliance with a fundamen - tal precept. Only certain authorities or institutions, as defined by the Constitution, have standing to initiate these actions. In such cases, the court reviews the law in the abstract, meaning there is no need for a dispute between two parties. If the law is deemed unconstitutional, it is invalidated gener - ally. 3.2 Challenging Secondary Legislation Under Brazilian law, the principle of legality prevails, meaning that all sub-legislative norms
– such as Presidential Decrees, Ministry Ordi - nances and other regulations – must be based on laws approved by the National Congress. This means that secondary normative acts can only be issued by the government to regulate an existing law, clarifying how it will be implement - ed. They cannot create or extinguish rights or obligations. If the government itself identifies an illegal act, it must revoke it ex officio. However, if an unlawful act is not revoked, it is possible to file a lawsuit before the judiciary to seek a declaration of its illegality or unconstitutionality. 3.3 Government Decisions Affecting Sole Individuals Government decisions that affect a single indi - vidual can be challenged through both adminis - trative and judicial channels. In addition to the right to challenge such decisions, the affected individual also has the right to appeal any unfa - vourable outcome. 3.4 Agreements Between Private Entities and Public Bodies In general, agreements between public bodies and private entities are formalised through con - tracts governed by public law. Different types of public contracts are regulated by specific legisla - tion, such as the Public Procurement and Admin - istrative Contracts Law (Law 14,133/2021) and the Concessions Law (Law 8,987/1995), among others. These laws set out detailed guidelines for public procurement and contracting. Irregularities in public contracts can be chal - lenged by the contracting parties (the gov - ernment and the private contractor), affected third parties or external oversight bodies, both through administrative and judicial channels. In some cases, disputes may also be resolved through arbitration.
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