The possibility of framing Individual Microentrepreneur as a consumer.
Atualizado: 17 de mai. de 2019
1. The Individual Microentrepreneur (MEI)
The Institute of the Individual Microentrepreneur (MEI), "Microempreendedor Individual" in Portuguese, was created in 2008 with the purpose of bringing to formality a large group of professionals that formerly acted informally in the market. With this, the Government reduced costs and risks, increased the tax revenues and gave effectiveness to a series of rights of these professionals. To be characterized as an MEI the individual must be an individual businessperson; perceive gross annual revenue of up to R$ 81,000.00 (eighty-one thousand reais); have, at most, one employee earning a minimum wage or the category floor; not having a subsidiary firm and not being a partner of other companies.
In 2015, through the Technical Note n.º 14/2015, the National Consumer Secretary (Senacon), secretary of the Ministry of Justice, also defined that the Individual Microentrepreneur (MEI) can be recognized as a consumer, stating the following.
"Considering that the construction of citizenship is confused with the recognition of consumer rights, the very definition of an individual microentrepreneur also allows the recognition of the worker as a citizen with rights and obligations. The status of entitled to rights and obligations is also linked to the values contained in the Federal Constitution itself as the dignity of the human being (article 1, III, CF); equality (article 5, I, CF) and the recognition of the importance of consumer protection in the scope of economic activities as stipulated in art. 170 of the Federal Constitution. Among the principles governing consumer relations, art. 4, I, of the Consumer Protection Code, consumer vulnerability is characterized by insufficient economic, technical and informational status in comparison to the supplier. Therefore, considering the requirements for the worker to have access to the benefits of formalizing his/her activity as an individual microentrepreneur, it is perceived that this individual entrepreneur is likely to face difficulties and deficiencies regarding the information, technical knowledge and economic unbalance in the same any consumer of products and services would."
The Consumer Protection Code (CDC) establishes in its article 2º that: "Consumer is any natural person or legal entity that acquires or uses product or service as the final recipient." Likewise, the jurisprudence of the Superior Tribunal de Justiça (STJ) and the Tribunal de Justiça do Distrito Federal e Territórios (TJDFT), for a long time, recognize the possibility of a legal entity being interpreted as a consumer when certain requirements are met. Thus, regarding the Individual Microentrepreneurs, it could not be any different.
2. The Mitigate Finalist Theory
Within the scope of the judiciary, the STJ recognizes that a legal entity can appear as a consumer in consumer relations in specific cases. It is the application of the "mitigated finalist theory" (or deepest finalist theory), "teoria finalista aprofundada" or "teoria finalista mitigada" in portuguese, where the concept of "final recipient of the product or service" is mitigated, adopting a maximalist interpretative tendency previewed in the CDC. It is noted as relevant precedents for the consolidation of the Finalist Mitigated Theory Special Appeal, "Recurso Especial" or "REsp) in portuguese), n.º 1.010.834 - GO (2007/0283503-8) where the Minister Nancy Andrighi states:
"With this new understanding, there was a significant step towards the recognition of not being the criteria of the final economic recipient the determining factor for the characterization of a consumer relation or the consumer concept itself. Even if the acquirer of the property is not its final economic recipient, it may be considered a consumer, when proved that he or she is found to be in disavantage in the legal relationship before the supplier. In the specific case, what occurs is the conflict between a company that manufactures machines and a supplier of software, equipment, parts, and accessories for the apparel business, and a natural person who acquires an embroidery machine for the sake of their survival and their family's proving its economic vulnerability. If the possibility of mitigating the finalist theory is acknowledged, by admitting the application of the CDC rules to certain professional consumers, provided that technical, legal or economic vulnerability is demonstrated, the defendant should be included in the definition in art. 2 of the CDC. "
In this REsp it was recognized the application of the provisions of the CDC to the individual that carries out business with the object acquired in the, now, customer's relation. The conditions indicated by the court for this recognition is proving the unbalance within the legal relationship between supplier and customer. Such vulnerability shall be recognized where there is evidence of technical, legal or economic vulnerability/unbalance between the individuals.
This precedent was consolidated in the STJ and is currently standard. The following judgments are cited as precedents reinforcers:
- The appeal in the writ of mandamus, "recurso em mandado de segurança" in Portuguese, N.º 27512 / BA, Rel. Minister NANCY ANDRIGHI, THIRD COURT, adjudicated on 08/20/2009;
- Agravo Interno no Agravo em Recurso Especial n.º 465.974 / SP, Rel. Minister MARCO BUZZI, QUARTA TURMA, judged on 08/02/2018;
- Agravo Interno no Agravo em Recurso Especial n.º 1,562,745 / SP, Rel. Minister MARCO BUZZI, QUARTA TURMA, judged on 09/20/2018;
- Agravo Interno no Agravo em Recurso Especial n.º 1.076.242 / SP, Rel. Minister ANTONIO CARLOS FERREIRA, QUARTA TURMA, judged on 08/08/2017;
The TJDFT also follows the understanding adopted by the STJ adopting the Finalist Mitigated Theory, demanding, for the recognition of the consumer relationship within the demonstration of the technical, legal or economic vulnerability of that legal entity that wishes to fit into the concept of the consumer.
The following TJDFT precedents are demonstrated:
- Acórdão n.859710, 20130111024490APC, Rapporteur: JOHN EGMONT, Reviewer: MARIA DE LOURDES ABREU, 5th CELEBRATION, Judgment Date: 03/25/2015, Published in DJE: 04/14/2015. Page: 313;
- Acórdão n.1085281, 20110111992496APC, Rapporteur: GILBERTO PEREIRA DE OLIVEIRA 3rd CELEBRATION, Judgment Date: 03/21/2018, Published in DJE: 04/04/2018. Page: 206/215;
- Acórdão n.1076287, 07055727420178070018, Rapporteur: GISLENE PINHEIRO 7th Civil Chamber, Judgment Date: 02/22/2018, Published in the DJE: 02/28/2018. Page: No Page Registered;
- Acórdão n.1058995, 07102889820178070001, Rapporteur: CARLOS RODRIGUES 6th Civil Chamber, Judgment Date: 11/09/2017, Published in DJE: 11/16/2017. Page: No Page Registered;
In the same way, the Appel Section of the Small Court of the Federal District, "Turmas Recursais dos Juizados Especiais do Distrito Federal" in Portuguese, also continue to adopt the aforementioned theory and precedent, according to those rules:
- Acórdão n.1131143, 07067103620188070020, Rapporteur: ALMIR ANDRADE DE FREITAS 2nd Chamber of the Special Civil and Criminal Courts of the Federal District, Judgment Date: 10/17/2018, Published in DJE: 10/22/2018. Page: No Page Registered;
- Acórdão n.1078167, 07182121820178070016, Rapporteur: ASIEL HENRIQUE DE SOUSA 3rd Chamber of the Special Courts of the Federal District, Judgment Date: 02/27/2018, Published in DJE: 08/03/2018. Registered;
- Acórdão n.1072442, 07031689620168070014, Rapporteur: GILMAR TADEU SORIANO 1st Panel of the Special Civil and Criminal Courts of the Federal District, Judgment Date: 05/02/2018, Published in DJE: 03/03/2018. Registered page;
According to the law, the Individual Microentrepreneur (MEI) must be an individual entrepreneur, therefore a physical person exercising the business activity. At first, by the literal reading of the CDC, it could be affirmed that the MEI should be the final recipient of the products or services for the recognition of the consumption relation.
However, when observing the Mitigated Finalist Theory peacefully adopted in the STJ and TJDFT, it is noticed that the legal entity that carries out the business activity can also be considered as consumer "in casu" whenever demonstrated within the parties the occurrence of technical vulnerability, legal, or economic. Thus, it would not make sense to fail to recognize the MEI as a consumer when it has been proved its vulnerability in the concrete case.