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Plenary decides on constitutionality of payment of 13th salary and vacation to mayors and vices


Wednesday, February 1st 2017

The Plenary of the Brazilian Federal Supreme Court (STF)concluded on Wednesday (1st) the judgment of Extraordinary Appeal (RE) 650898, with general acknowledged repercussion, in the purport that the payment of holiday bonus and 13th salary to mayors and vice-mayors is not incompatible with article 39, paragraph 4, of the Constitution of the Republic. By majority, it won the vote proposed by Justice Luís Roberto Barroso, who diverged partially from the rapporteur, Justice Marco Aurélio.

Extraordinary Appeal 650898 was filed by the municipality of Alecrim (RS) against a judgment of the Court of Justice of Rio Grande do Sul, which ruled that the municipal law was unconstitutional (Law 1.929/2008), which provided for the payment of representation, the payment of vacation, the additional one-third (1/3) of the salary and 13th salary to the occupants of the local Executive. For the Court of Justice, the norm would violate that constitutional provision, which prohibits the addition of any gratuity, additional, allowance, premium, remuneration amount or other remunerated portion to the allowances of holders of elective mandates.

The Justices resumed the trial with the view and vote of Justice Luiz Fux, who followed the divergence opened in February 2016 by Justice Barroso. According to the divergent trend - followed also by Justices Teori Zavascki, Rosa Weber, Dias Toffoli and Gilmar Mendes - the third of the holidays and the 13th salary are the rights of all workers, including political agents.

The rapporteur's position on this subject was followed by justices Edson Fachin, Ricardo Lewandowski and Carmen Lúcia. For them, mayors and vice-mayors, justices and secretaries, deputies, senators and councilors are political agents, different from public servants in general.

Competence

The decision was unanimous in the other issue discussed in Extraordinary Appeal 650898. The municipality alleged that the Court of Justice, in the judgment of direct unconstitutionality action against municipal law, could not verify the existence of an offense to the Federal Constitution. At this point, all the justices voted for the dismissal of the appeal, stating that the Courts of Justice can exercise abstract control of constitutionality of municipal laws using as a parameter the Federal Constitution, as long as it´s about standards of reproduction obligatory by the states, as in this case. Also unanimously, the decision of the Court of Justice of the State of Rio Grande do Sul was maintained in the sense of unconstitutionality of the article of the municipal law that deals with the amount of representation.

Thesis

The theses set forth in the judgment of Extraordinary Appeal 650898 were as follows:
"Courts of Justice can exercise abstract control of the constitutionality of municipal laws using as parameters the norms of the Federal Constitution, provided that they are norms of reproduction obligatory by the states".

"Article 39, paragraph 4, of the Federal Constitution is not incompatible with the payment of a third of vacations and thirteenth salary".

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