Request for review interrupts trial on application of new he

A request for a review by Minister Alexandre de Moraes interrupted the trial, by the Virtual Plenary of the Federal Supreme Court, of an appeal that deals with the application of a new law on health plans to previously signed contracts.





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Reproduction Request for review interrupts trial on application of new health insurance law

According to the rapporteur, Minister Ricardo Lewandowski, the case deals with the effectiveness of the law over time and the possibility, or not, of applying Law 9,656/1998 to contracts signed prior to its validity. The matter had recognized general repercussion and was registered as Theme 123.



In the appeal, Unimed Porto Alegre contests the conviction based on Law 9,656/1998 in relation to a contract signed in 1995. The company maintains the impossibility of applying the rule to contracts signed prior to its validity, in compliance with articles 5, XXXVI , LIV, LV and article 93, IX, all of the Federal Constitution.



The company also defended that the non-retroactivity of B2B Lead the law and the perfect legal act constitute fundamental rights, and that, once the contested decision is upheld, there will be a serious breach of legal security, to the detriment of the entire community. Minister Ricardo Lewandowski voted to grant the appeal.



"The constitutional protection of the perfect legal act, the acquired right and the res judicata constitutes a fundamental clause of our Magno Text, and also one of the pillars of support for the Democratic Rule of Law, which makes them individual guarantees for all citizens", he stated the rapporteur.



According to the minister, previous STF judgments related to Law 9,656/1998 indicate that the rule cannot require health plan operators to adapt previously signed contracts to the new legal requirements.



"The prohibition of full retroactivity of the provisions inaugurated by Law 9,656/1998, such as those relating to the coverage of certain diseases, in addition to complying with the immutable precept set out in article 5, XXXVI, of the Constitution, also maintains submission to those relating to the order economic and free initiative, without neglecting consumer protection, as all are expressly provided for in article 170 of the Constitution", he added.







In Lewandowski's understanding, health plan contracts signed before Law 9,656/1998 can be considered perfect legal acts, and, as a general rule, are shielded from subsequent changes to binding rules, "except, as I stated before, the need to protection of other fundamental rights, or even of individuals in vulnerable situations".



So far, ministers Marco Aurélio, Carmén Lúcia and Rosa Weber have accompanied the rapporteur.



Suggested thesis

The thesis proposed by minister Ricardo Lewandowski was the following: "The provisions of Law 9,656/1998, in light of article 5, XXXVI, of the Federal Constitution, only apply to contracts concluded from its validity, as well as on contracts that, previously signed, were adapted to their regime, with the respective provisions being inapplicable to beneficiaries who, exercising their autonomy of will, chose to keep the old plans unchanged".



Divergence

Minister Luiz Edson Fachin opened the divergence. He agreed with the rapporteur in the sense that the facts born under the aegis of legislation prior to Law 9,656/1998, when the agreement occurred, are sealed as perfect legal acts. However, he accepted the arguments of the Attorney General's Office that the provisions of the Consumer Protection Code apply to the case.



"The case under examination, however, as revealed by the judgment under appeal, is governed by the Consumer Protection and Defense Code, Law 8,078/1990, which prohibits abusive clauses. In this sense, accepting the reasons for the opinion of the D. Attorney's Office- General of the Republic, I understand that this is not a case of infringement of a perfect legal act through the retroactivity of the law, since the aforementioned constitutional guarantees were respected in the agreement signed between the appellant and the insured party", he stated.



For Fachin, the appealed ruling was not only based on the application of the new law to condemn Unimed, but also on the violation of the Elderly Statute and the CDC. Thus, "although I agree with the rapporteur regarding the impossibility of the new law being retroactively effective in achieving the agreements agreed before its enactment", the minister concluded that the appeal must be dismissed.