Camila Vieira Guimarães
Lawyer at Marcos Martins Advogados
In the contemporary business context, the exercise of business activity in compliance with environmental legislation has become essential, both due to the incisive action of environmental agencies and the attitude of clients, consumers and suppliers involved in the supply chain who, guided by environmental awareness or charged to do so, demand actions and production policies from companies aimed at environmental preservation and sustainable development.
Thus, taking an environmentally responsible stance avoids worries about fines and fines that represent risks to business continuity, as well as boosting profitability and maintaining the image of a company that has a policy focused not only on economic aspects, but also on social and environmental aspects.
Brazilian legislation has shown concern for environmental problems and has developed mechanisms to protect the environment. Even before the enactment of the 1988 Federal Constitution, the Brazilian legal system already had a Public Civil Action Law (No. 7.347, of 24/07/85), which provided for the filing of public civil actions to protect environmental, historical and landscape heritage, as well as to determine liability for damages, but with the Constitution, the environment was elevated to a fundamental collective and transindividual right, that is, above individual rights.
In this context, the Conduct Adjustment Agreement (TAC) is an important instrument for protecting these collective rights, among which environmental rights stand out in particular. The TAC can be used either preventively (before the damage is done) or repressively (after the damage is done), in which case it aims to voluntarily repair the damage, bring conduct into line with legal or regulatory requirements, as well as compensate or indemnify for damage that cannot be repaired, using conciliation.
The TAC has thus become one of the main instruments available to legitimate public bodies and offenders to achieve alternative ways of dealing with environmental problems, as it enables conflicts to be resolved in the administrative sphere, without requiring legal action, thus relieving the judicial system, although the legislation also allows it to be signed in the course of legal proceedings.
The bodies described in art. 5 of Law 7.347/1985 have active legitimacy to enter into TACs, including the Public Prosecutor’s Office, the Public Defender’s Office, the Federal Government, states, municipalities, the Federal District, local authorities, public companies, foundations and mixed-capital companies. The bodies that make up SISNAMA (the National Environmental System)[1] were also authorized to sign TACs with individuals or legal entities responsible for the construction, installation, expansion and operation of establishments and activities that use environmental resources and are considered to be effectively or potentially polluting, under the terms of art. 79-A of Law no. 9.605/98 (the Environmental Crimes Law).
The agreement must be in writing and contain the identification of the parties, the deadlines for fulfilling the obligations, which must be objectively indicated, liquid and certain, such as obligations to do, not to do, to give a certain thing or cash penalties, in accordance with the nature and extent of the damage, as well as a fine in the event of non-compliance. For this reason, it is essential to have technical legal assistance to analyze the legality and viability of the obligations assumed and, especially, the penalty clauses.
It is important to emphasize that the TAC is a company’s right and that, despite the intention that sometimes taints the actions of the legitimate body, the compromising company cannot be required to acknowledge its guilt or responsibility for the damages that are the subject of the commitment, and such conduct cannot be accepted.
The TAC can be signed by large companies as well as small and medium-sized enterprises and, once it has been ratified, the respective investigations or ongoing administrative proceedings are suspended.
It should be emphasized that the TAC is effective as an extrajudicial enforcement instrument, so that the legitimate public body will monitor its full compliance and if it finds non-compliance, it will file the appropriate enforcement action in the judicial sphere.
All of the above reinforces the importance of business management being attentive to environmental legislation and specifications, in the pursuit of responsible business activity. Aware of and accustomed to the multidisciplinary routine of the business environment, Marcos Martins Advogados is able to advise its clients on negotiating and signing TACs, highlighting its usual commitment to updating and quality of services provided.
BIBLIOGRAPHICAL REFERENCES
BRAZIL. Law no. 9.605 of February 12, 1998. Provides for criminal and administrative sanctions arising from conduct and activities harmful to the environment. Available at: < http://www.planalto.gov.br/ccivil_03/leis/L9605.htm>. Accessed on: June 25, 2017.
BRAZIL. Law n. 7.347 of July 24, 1985. Regulates public civil action for liability for damage caused to the environment, the consumer, goods and rights of artistic, aesthetic, historical, tourist and landscape value. Available at:
VIEGAS, Rodrigo Nunez; PINTO, Raquel Giffoni; GARZON, Luis Fernando Novoa. Negotiation and environmental agreement: the conduct adjustment term (TAC) as a way of dealing with environmental conflicts. Rio de Janeiro: Heinrich Böll Foundation, 2014.
[1] SISNAMA is made up of: the Federal Council, IBAMA (Brazilian Institute of the Environment and Renewable Natural Resources), MMA (Ministry of the Environment, Water Resources and the Legal Amazon), CONAMA (National Environment Council), state bodies (e.g. SEMAD – State Secretariat for the Environment and Sustainable Development, IEF – State Forestry Institute) and municipal bodies (e.g. SMMA – Municipal Secretariat for the Environment).
