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March 23, 2020

COVID-19 | Civil - Federal Decree defines essential products and services

Brazilian Civil Law - updated on Mar 21 at 08:10 pm

Federal Decree defines essential products and services

On March 20, 2020, Brazilian Federal Government enacted the Decree No. 10,282 to regulate Law No. 13,979/2020, as amended by the Provisory Act No. 926/20; the latter provided for “measures that can be adopted to fight the public health urgency of international relevance deriving from coronavirus” (COVID-19), such as (i) isolation; (ii) quarantine; (iii) temporary restrictions to activities and circulation in roads, ports and airports, among others (Section 3).

The purpose of the Decree is to define the essential products and services that cannot suffer restrictions, as Law No. 13,979/2020 provides that the restrictive measures “must preserve the continuance of essential public services and essential activities.” (Section 3, § 8). The list includes activities and products related to (i) health care; (ii) public and private safety; (ii) production, distribution, sale and delivery, either in person or by e-commerce, of products for health, hygiene, foods and drinks, amid others (section 3, § 1 , as attached hereto).

Section 3, §2, also provides that “Ancillary activities, support and supplies for the productive chain of public services and essential activities are also considered essential”, while § 6 sets that restrictions to essential services (including regulated ones)  “can only be imposed by means of a specific regulation” and as a result of previous consultation with the regulating, granting or authorizing public entity.

Governments of States and Municipalities are also issuing similar acts, setting restrictive measures to industrial and commercial activities and to the circulation of goods and people, but with a less extensive list of exceptions. The list of essential services defined by Decree No. 10,282, as well as of any other regulation, cannot be construed as exhaustive; any essential service to the population must be protected, even if not comprised in the list of exceptions.

Authorities enforcing the restrictive measures may give different interpretations on what constitutes essential services and activities and impose restrictions that are not in compliance with the purpose of these regulations.

In such case, suppliers of such products and services must resort to courts and seek for urgent relief to continue their activities. Rules issued by State and Municipal governments can also be challenged if in contradiction with Decree No. 10,282, as the latter is a federal regulation.

Annex I (Decree N. 10,282/2020, Section 3, § 1)

§ 1 Public services and essential activities are those necessary to meet the urgent needs of the community, being considered as such those activities that if not provided, endanger the survival, health or safety of the population, such as:

I - health care, including medical and hospital services;
II - social assistance and assistance to the population in a state of vulnerability;
III - public and private security activities, including surveillance, custody and custody of prisoners;
IV - national defense and civil defense activities;
V - intercity, interstate and international passenger transportation and passenger transportation by taxi or application [“apps”];
VI - telecommunication and internet;
VII - water collection, treatment and distribution;
VIII - sewage and garbage collection and treatment;
IX - generation, transmission and distribution of electricity and gas;
X - public lighting;
XI - production, distribution, commercialization and delivery, carried out in person or through electronic commerce, of health, hygiene, food and beverage products;
XII - funeral services;
XIII - custody, use and control of radioactive substances, nuclear equipment and materials;
XIV - surveillance and sanitary and phytosanitary certifications;
XV - prevention, control and eradication of plant pests and animal disease;
XVI - international agricultural surveillance;
XVII - air, water or land traffic control;
XVIII - bank clearing, credit and debit card networks, ATMs and other non-face-to-face services of financial institutions;
XIX - postal services;
XX - transportation and delivery of cargo in general;
XXI - services related to information technology and data processing (data center) to support other activities provided for in this Decree;
XXII - tax and customs inspection;
XXIII - cash transportation;
XXIV - environmental inspection;
XXV - production, distribution and sale of fuels and derivatives;
XXVI - monitoring of constructions and dams that may pose a safety risk;
XXVII - survey and analysis of geological data to ensure collective security, notably for warnings of natural disasters and floods;
XXVIII - financial and insurance market;
XXIX - care for animals in captivity;
XXX - advisory activities in response to demands that continue in progress and urgent ones;
XXXI - medical-expert activities related to the general social security and social assistance regime;
XXXII - medical-expert activities related to the characterization of the physical, mental, intellectual or sensory impairment of the person with disabilities, through the integration of multidisciplinary and interdisciplinary teams, for the purpose of recognizing the rights provided for by law, especially in Law No. 13,146 , of July 6, 2015 - Statute for Persons with Disabilities; and
XXXIII - other medical-expert services related to the Federal Medical Expert indispensable to meet the urgent needs of the community.

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