The evolution of constitutional review in Brazil has brought the country’s diffuse and concentrated controls closer together, largely due to the maturing of the Supreme Federal Court (STF) as a precedent-setting body. Although these two models rely on distinct procedural techniques, their pronouncements now often produce similar effects, particularly after the consolidation of the general repercussion regime. This convergence, however, has not been accompanied by clear rules on how these procedures coexist within the Court itself. A single constitutional question may reach the STF through an extraordinary appeal and simultaneously through an abstract control action, creating a need to understand how these judgments should relate to preserve the consistency of precedents and avoid contradictory decisions.
How Concentrated Control Changed
Under the traditional model, the distinction appeared clear. In concentrated control, the constitutionality of the norm is the main object of the process, and the decision typically produces effects against all. In diffuse control, the constitutional question arises incidentally in a concrete controversy, so the declaration of unconstitutionality was traditionally understood as having limited effects on the parties. Article 52, X of the Federal Constitution gave the National Congress the power to suspend the execution of a law declared unconstitutional by a definitive STF decision.
Legislative intervention played a significant role in expanding the effects of such declarations. This understanding, however, underwent profound changes. Even before the current Constitution, in 1977, a decision by the STF’s Presidency established that decisions in concentrated control would no longer be sent to Congress for deliberation on the suspension of the norm, but communicated directly to the authority responsible for its enactment. The STF decision then became binding and had erga omnes efficacy when issued in concentrated constitutional control, as a rule. This evolution came from the STF itself, not the Legislature.
Diffuse Control Evolves Under Precedent
The debate gained new contours regarding diffuse control. The growing value of STF precedents challenged the idea that the authority of their constitutional interpretation depended on a resolution by Congress. In Reclamação 4.335, the issue was widely discussed. Later, in ADI 2.418/DF, Minister Teori Zavascki highlighted the inadequacy of establishing a hierarchy between STF pronouncements solely based on the procedural route through which they were produced. The function of upholding the Constitution is the same, even if the instruments used to exercise it differ, in general.
The discussion gained significant expression in the 2017 judgment of ADIs 3.406 and 3.470, involving asbestos. At that time, the STF revisited the meaning of Article 52, X, recognizing in decisive manifestations a constitutional mutation that brings the Senate’s role closer to one of publicity, without conditioning general efficacy on it. It is noteworthy that this reinterpretation raises controversies about the limits of constitutional interpretation and the institutional space reserved for the Legislature. What is important to highlight is the jurisprudential movement strengthening the authority of STF decisions, even when the constitutional question is reviewed incidentally.
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This movement gained greater density with general repercussion. The institution does not merely function as an admissibility requirement for the extraordinary appeal. By selecting a controversy for judgment under the general repercussion regime, the STF promotes an objectification of the discussion and a collectivization of the demand, so that the pronouncement to be issued will not only resolve the concrete case but transcend it, serving as a binding paradigm for analogous situations. Not every extraordinary appeal is judged by this qualified technique. When it is, however, the expansive vocation of the judgment ceases to be an occasional consequence and begins to integrate the very structure of the procedure.
Using Constitutional Claim Actions
One evidence of this convergence is the use of constitutional claim actions, where parties can demand the proper application of a precedent by other courts. Such an instrument of impugnation is admissible to enforce a precedent formed in diffuse control or in concentrated control. The provision for admissibility is found in Article 988, III, and §5, II of the same device.
Thus, if a decision contrary to the STF’s understanding formalized through these precedent-forming techniques is issued, a claim can be filed directly at the Supreme Court to ensure the paradigm judgment is observed, as a rule. The only important difference between concentrated and diffuse control is the moment when it is possible to file the claim action. While in concentrated control it is possible to file immediately after the pronouncement contrary to the precedent, in diffuse control it is required to exhaust ordinary instances first.
Another manifestation is the possibility of effect modulation. In both concentrated and diffuse control, the STF can calibrate the temporal efficacy of its pronouncements, given the precedent force these pronouncements possess, to protect legal certainty and exceptional social interest, observing the specific premises of each hypothesis. In general, both precedents formed in concentrated control and those edited under the general repercussion regime (diffuse control) are pronouncements that can be followed by other courts and may have their effects modulated, in general.
Article 27 of Law No. 9.868/1999 and Article 11 of Law No. 9.882/1999 discipline modulation in abstract control actions; in the Civil Procedure Code, Article 927, §3, offers a provision related to the change of dominant jurisprudence and qualified precedents, among other laws and provisions that may apply. Article 23 of the Law of Introduction to the Norms of Brazilian Law (Decree-Law 4.657/42) also requires, when indispensable, a transition regime in the face of a new orientation, so that the new duty or conditioning of right is fulfilled without offense to legal certainty.
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Judicial Execution Titles Converge
The proximity also appears in the treatment given to judicial execution titles. Articles 525, §12, and 535, §5, of the CPC consider the obligation based on a law or interpretation reputed incompatible with the Constitution by the STF, whether in concentrated or diffuse control, to be unenforceable. Respecting the temporal rules and procedural means of impugnation, it is significant that the legislator placed the two forms of control side by side when disciplinating such a strong consequence. The same logic guided Themes 881 and 885 of general repercussion (RE 949.297 and RE 955.227, judged in February 2023).
The STF established, specifically for continuous tax legal relationships, that decisions issued in a direct action or in general repercussion automatically interrupt the future effects of the res judicata that are contrary to them. In contrast, incidental decisions prior to the institution of the general repercussion regime do not automatically produce the same result. The distinction is revealing, as the decisive element is not simply the diffuse origin of the controversy, but the formation of a qualified pronouncement with the aptitude to guide the legal system beyond the parties.
In 2009, in the judgment of ADI 4.071/DF, the Plenary maintained the refusal of the initial petition of a direct action of unconstitutionality discussing a norm whose constitutionality had already been expressly recognized in general repercussion (Theme 71). Based on Article 4 of Law No. 9.868/1999, it was manifestly improcedent the pretension to rediscuss, by the abstract way, a constitutional question already solved by the Court.
Thus, a new judgment was not required by the simple use of a different procedural route. The conclusion was retaken in ADPF 174/RN, judged in 2013. In that case, the STF recognized the prejudice of the argument because the unconstitutionality of the same state law had already been recognized in Theme 5 of general repercussion, judged under the general repercussion regime (RE 561.836). The identity of the controversy and the existence of an earlier pronouncement were sufficient to dismiss the utility of a new judgment in concentrated control.
