The coercive fine for non-compliance and its importance for the effectiveness of decisions granting interim relief.

The coercive fine (‘astreinte’) is one of the most effective means of ensuring compliance with interim relief involving an obligation to do, not do, or deliver something. It is an indirect means of enforcing judicial relief, characterized primarily by its coercive nature. This instrument of indirect enforcement has the key advantage of deterring non-compliance. The 2015 Brazilian Code of Civil Procedure (‘2015 CPC’) expressly provides for it as a mechanism to ensure the effectiveness of court rulings, especially in cases where a interim relief is disregarded. 

However, the greater or lesser effectiveness of this indirect enforcement mechanism is closely linked to its legal framework as well as to how this framework is interpreted by our jurisprudence. 

Recently, the Superior Court of Justice (‘STJ’) examined the possibility of the provisional enforcement of coercive fines established in interim relief decisions while ruling on the appeal against a divergent opinion (‘divergence motion’) EAREsp n. 1.883.876/RS1. By a narrow voting majority (6 to 4), the Special Court reaffirmed the thesis established in Theme 743 (drafted in light of the 1973 Brazilian Code of Civil Procedure), stating that the provisional enforcement of fines due to non-compliance is only possible after the confirmation of provisional relief by a judgment on the merits and provided that any appeal filed against this judgment does not have a suspensive effect. 

The discussion is not new. As previously mentioned, even under the 1973 Brazilian Code of Civil Procedure, despite the absence of an express legal provision, the Special Court had established the understanding that the enforceability of the coercive fine was conditioned upon the confirmation of the preliminary injunction by a judgment and the absence of an appeal with suspensive effect. This was despite the fact that, at the time, part of the legal doctrine argued that, since the provisional relief had immediate effectiveness and there was no legal provision for an automatic suspensive effect on an appeal filed against the decision granting it, the provisional enforcement of both the principal obligation and the coercive fine would be admissible. 

The 2015 Brazilian Code of Civil Procedure provided a clear signal from the legislator to overcome the previous understanding. Article 537, § 3, establishes that: ' The decision that determines the levying of the fine may be executed provisionally, the fine must be deposited in court and the value may be withdrawn after the res judicata judgement is rendered in favour of the party. (As amended by Act of Law n. 13.256, of 2016). In other words, the new Code, in our view, expressly authorizes the provisional enforcement of the fine but conditions the withdrawal of the amount on the final judgment. The legislator's concern, apparently, was to balance effectiveness and security: the execution acts are allowed, reinforcing their coercive nature, but the creditor will only have access to the amount after the final judgment resolving the conflict of interests in dispute. 

This legislative change was well received by part of the legal doctrine and was even embraced by rulings from some Chambers of the Superior Court of Justice (´STJ´). The Second and Third Chambers, for instance, began to allow the provisional enforcement of ‘astreintes’ even before the judgment, based on the new legal text. In one of the rulings (REsp n. 1.958.679/GO) 2, it was highlighted that the replacement of the word 'judgment' with 'decision' in Article 515, I, of the 2015 Brazilian Code of Civil Procedure indicates an expansion of judicial enforcement titles, encompassing interlocutory decisions, particularly interlocutory decisions on the merits and decisions granting interim relief. 

However, decisions persisted, such as the one rendered in case AgInt in AREsp n. 1.883.876/RS3, holding that the confirmation of the preliminary injunction by a judgment and the absence of an appeal with suspensive effect were essential, based on a restrictive interpretation of the new Code, in line with the jurisprudence established under the previous Code. According to this view, Article 537, § 3, does not waive the confirmation of the decision but merely addresses the timing of the withdrawal of the amounts. 

This jurisprudential divergence ultimately enabled the appeal against a divergent opinion (‘divergence motion’) mentioned above. As observed, in the ruling issued by the Special Court, the guidance established in Theme 743 prevailed once again, with the body understanding that the amendments introduced by the new Brazilian Code of Civil Procedure did not substantially alter the previous legal framework. 

In the reasoning of the prevailing vote, it was emphasized that the coercive fine established in summary cognition remains linked to the merits decision. Execution before confirmation by judgment would pose a risk of undue burden on the defendant's assets, who might ultimately prevail on the merits. The immediate effectiveness of the relief should not be confused with the enforceability of the fine, which, according to this understanding, remains subject to a resolutive condition. 

The practical consequence of the ruling is as follows: the daily fine remains due from the moment of non-compliance, but its enforceability (including in interim enforcement decisions) depends on confirmation by judgment and the absence of a suspensive effect in any appeal filed against the decision or subsequent decisions. The party failing to comply with the court order, not being subject to the immediate execution of the fine, will not be strongly compelled to comply, as they will not face any immediate empirical consequences for non-compliance. They may continue disregarding the decision without the imposed fine being immediately enforced. They may also continue attempting to overturn the ruling without being directly affected by the coercive fine, although its amount may be increased. If they succeed in reversing the ruling, they will be exempt from paying the accumulated fine, suffering no consequences for their non-compliance. In other words, they will have disregarded the court order without facing any practical monetary repercussions. 

In our view, the STJ missed an opportunity to align its jurisprudence with the logic expressly implemented in the new legislation. The interpretation that conditions the enforcement of the fine on a judgment on the merits ultimately reduces, at least partially, the coercive force of the penalty. After all, if the purpose of the fine is to compel the non-compliant party to fulfill the obligation imposed in the provisional relief, conditioning its enforceability on subsequent confirmation is tantamount to stating that non-compliance with the decision will not have immediate empirical consequences, which undermines the effectiveness of the relief granted. 

Moreover, it seems to us that the system adopted by the new Brazilian Code of Civil Procedure provides sufficient mechanisms to protect the judgment debtor. The impossibility of the immediate withdrawal of the amount and the possibility of requiring security would, in themselves, already constitute adequate safeguards. 

At this moment, however, for everyday forensic practice, it is necessary to consider that the thesis of Theme 743 has been reaffirmed by the Special Court. This decision, under the terms of Article 927, III and V, of the Brazilian Code of Civil Procedure, constitutes a binding precedent. Unless the Special Court itself revisits the issue, it is a mandatory understanding that must be applied by lower courts. It remains to be seen whether, at some point, a new reflection by the Special Court will be possible, perhaps more aligned with the spirit of the 2015 CPC and the function of coercive fine as instrument of jurisdictional effectiveness.