Deciding body (English)
Type of body
Type of jurisdiction
Type of Court (territorial scope)
Further areas addressed
- Healthcare management (Covid related, excluding vaccination)
- Scope of powers of public authorities (legislative, executive etc.)
Outcome of the decision
The claimant has acquired more than sixty-eight ventilators from the company Intermed Equipamento Hospitalar Ltda. to equip intensive care units (UTI, in the Portuguese acronym). Subsequently, the Union has requested from the company Intermed, on a compulsory basis, all pulmonary ventilators already acquired by the claimant , and , i.e., all ventilators that would be manufactured in the following 180 days. The petitioner has highlighted that , in addition to the damage caused to citizens and the effects on their integrity and health, the Federal Union’s action has wasted the resources spent on the construction of intensive care units, which would be underused without the ventilators. The Court has reinforced the need for the Federal States to fully guarantee the right to life and health, providing the appropriate medical treatment measures. Therefore, the Supreme Court Justice has determined that, within 48 hours, the company Intermed Equipamento Médico Hospitalar Ltda. had to deliver to the State of Maranhão 68 (sixty-eight) ventilators acquired by the referred state, through the Contract 67/2020.
Facts of the case
In the first months of the Covid-19 pandemic, there was a shortage of health supplies in several countries, including Brazil. Because the country is a federation composed of three levels of administration (federal, regional and local), and also due to the fact that the public health system is managed at the three levels, there have been claims on whether or not health supplies could be subject to transfer from one level of administration to another. In this case, the State of Maranhão has claimed protection against the compulsory transfer of ventilators to the federal government.
Type of measure challenged
Measures, actions, remedies claimed
Individual / collective enforcement
Nature of the parties
Type of procedure
Reasoning of the deciding body
The Justice-Rapporteur has considered the relationship between the Union, St ate-members, the Federal District and the municipalities, and their power and duties according to the Federal Constitution and the Justice pointed out that the Federal Union’s actions cannot transgress the provisions established thereof, otherwise the institutional autonomy of the federal entities would be nullified. The Court has stressed the need to enforce the fundamental rights of the person, among which, by their precedence and supremacy, the right to life and the right to health. Therefore, the Rapporteur has granted the provisional relief of urgency in order to ensure that the claimant, a state-member, could provide adequate protection to the health and life of its residents.
Conclusions of the deciding body
According to the Constitution (Article 5, XXV), if the state of defense or state of siege is declared and in force, the Union shall only take private properties. Thus, the federal government has no power to request ventilators bought by a state-member.
Implementation of the ruling
The Court has determined that the private company Intermed Equipamento Médico Hospitalar Ltda. had to deliver to the claimant the 68 (sixty-eight) ventilators acquired by the latter , within 48 hours.
Fundamental Right(s) involved
- Freedom to conduct a business
- right to public property
Fundamental Right(s) instruments (constitutional provisions, international conventions and treaties)
- Forbiddances of an entity to take assets, administrative personnel and services of another entity (Art. 1, 18 30 Const.)
- Autonomy of the Federal entities;
- Union shall only take private properties (Article 5, XXV);
- Right to life;
- Right to health.
Rights and freedoms specifically identified as (possibly) conflicting with the right to health
- Health v. economic freedoms
- Health (public) v. access to health services
General principle applied
- State of emergency or necessity
Balancing techniques and principles (proportionality, reasonableness, others)
The Court has found that the Union’s attitude did not respect federalist principles, in addition to putting the health of the population of the State-member at risk. Although the Brazilian population has been in need of access to medical equipment as a whole, the Union can’t break federalist principles.
Impact on Legislation/Policy
The governmental measure has been quashed in relation to the claimants’ properties.