Deciding body (English)
Type of body
Type of Court (material scope)
- Civil Court
- Criminal Court
- Constitutional Court
Type of jurisdiction
Type of Court (territorial scope)
Further areas addressed
Outcome of the decision
A new legislation has been implemented to deal with the acquisition and distribution of vaccines by legal entities governed by private law. Article 2 of this law, has authorised the private sector to directly purchase, distribute and administer Covid-19 vaccines only after the immunisation of the priority group and provided that at least 50% (fifty percent) of the doses acquired have been donated to the public health system. The claimants’ aim has been the grant of an injunction to authorise the immediate importation of vaccines without the need to comply with these requirements. The Court has ruled in favour of the claimants, granting the injunction sought.
Facts of the case
The process of acquisition and distribution of vaccines in Brazil has been surrounded by conflicts between federative units and levels of government. In this case, a group of public institutions from the legislative and executive powers of the states of São Paulo and Minas Gerais have sought authorization to import vaccines and distribute them to their civil servants, without complying with the conditions stipulated by the Federal Government. The C ourt has acknowledged that the conditions imposed were unlawful and grants the claim.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Type of procedure
Conclusions of the deciding body
The injunction has been partially granted, and the judge has declared the unconstitutionality of art. 2 of the Law 14.125/21, ruling for the exclusion of the expression “as long as they are fully donated to the Unified Health System” (SUS)) and the total exclusion of the §1, which has determined: “After the completion of the immunisation of the priority groups provided for in the National Vaccination Operationalization Plan against Covid-19, legal entities under private law may, having complied with legal and sanitary requirements, acquire, distribute and administer vaccines, provided that at least 50% (fifty percent) of the doses are obligatorily donated to SUS and the others are used free of charge”.
Reasoning of the deciding body
The Federal Judge has ruled that the requirements imposed by the Federal legislation were unconstitutional, as it has ruled against article 199 of the Brazilian constitution, which states that the “health assistance is open to private enterprise”. Moreover, he has concluded that this case is not within the authorised instances of confiscation or expropriation and that such measures did not have a tax nature. Therefore, the judge has concluded that the private sector did not need to wait for the immunisation of the priority group and did not need to donate the vaccines to the public health system, as required in the challenged legislation . Additionally, the judge has also considered that this new law was a setback, as well as opposed to the fundamental rights to protect health and life of all.
In this interim measure decision, the judge has ruled that there is no legal impediment for the civil society to immediately participate in the Covid-19 immunisation programme in Brazil, and has authorised the plaintiff to initiate the immediate importation of vaccines intended for the immunisation against the new coronavirus, without the need to make the coercive donations imposed in art. 2 of Law 14.125/21, as he has concluded this was unconstitutional.
Fundamental Right(s) involved
- Freedom of movement of people, goods and capital
- Freedom to conduct a business
- Right to health (inc. right to vaccination, right to access to reproductive health)
- Right to life
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Right to health - article 196, Brazilian Federal Constitution;
- Social right to health - article 6º, Brazilian Federal Constitution;
- The right granted to the private sector to provide health care - article 199, Brazilian Federal Constitution.
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health (public) v. access to health services
- right granted to the private sector to provide health care
General principle applied
- Rule of law
Impact on Legislation/Policy
The governmental measure has been partially quashed.
Impact on national case law
Before the Covid-19 pandemic, there was no legislation that imposed an obligation on the private sector to donate 50% of the vaccines to the public health system, or even to wait for the completion of the immunisation of priority groups in order to start offering private vaccination. The legislation that has imposed these limitations to the private sector has been implemented during the Covid-19 pandemic. Therefore , the case law is very recent . Moreover, the decision about the unconstitutionality of part of this law has not been final and might be reviewed byS uperior C ourts.
Clarification: At the Brazilian single jurisdiction system, the regional courts of appeal (Tribunal Regional Federal) indeed have had a broad material scope. The different areas of law have been submitted to specific chambers (collegiate of Judges), so the Court has had jurisdiction over all the matters above, but each one would be submitted to different units of the Court. However, all the cases in this Court must have had as a party federal authorities.
Full decision available on uol.com.br