Electronic service of process and notifications

The mandatory registration of companies on judicial electronic mailboxes is set forth in Article 246, §1, of the New Code of Civil Procedure, which determines thus: “Article 246, §1 – With the exception of micro and small companies, public and private companies are required to keep a registration on systems for proceedings with electronic case records, in order to receive service of process and notifications, and it will preferably be done in this way.”

Although the idea of a unified platform is excellent and very welcome for us lawyers and everyone subject to the law, when it will actually start operating is not certain. As advanced by the National Council of Justice itself, the National Public Notice Platform and the National Electronic Justice Gazette (DJEN), which apparently are already being tested, will start operating first.

Only afterwards will the electronic tool for serving companies with process, called the Electronic Mailbox, be developed. The forecast, in accordance with information obtained from the CNJ, is that this will happen in the second half of 2020.

In addition, as established by Article 196 of the Code of Civil Procedure (CPC), several Courts have been using platforms (such as, for example, ESAJ, PROJUD and EPROC) to enable companies to register in order to receive service of process and notifications electronically.

Sometimes, registering is simple and requires the use of a digital certificate and copies of particular documents. However, in some Courts, registration additionally requires attendance at the Court Registy Office to finalise or confirm the information provided, which ends up reducing the number of companies willing to register.

Thus, although registration is mandatory in the vast majority of Brazilian Courts, since no procedural penalties are set forth, many companies fail to carry it out, either because of the difficulty mentioned above, or because they are waiting for the Platform for Procedural Communications to be actually implemented by the CNJ, in order to avoid “rework”.

However, as a way of forcing companies that have not yet registered with the Courts to do so, some measures have been taken by the Courts of Justice in Mato Grosso and Rio de Janeiro. All other Courts, as far as is known, do not provide any type of sanction for those who do not register.

Recently, the Mato Grosso Court published new Joint Ordinance 291/2020 establishing the obligation for companies to register on the electronic proceedings system at that Court, in order to receive service of process and notifications. So far, nothing new. The novelty was inserted in Article 2, which contained a recommendation for judges to assess the possibility of imposing a fine on companies that do not register. The justification for the measure is violation of the principle of cooperation and the possible typification of litigation in bad faith for unjustified and unlawful resistance to the progress of the lawsuit.

The Rio de Janeiro Court of Justice (TJRJ), in turn, taking advantage of the Government’s prerogative to reduce the chances of Covid-19 infection, since the most effective measure to minimise the spread of the virus is people being restricted from circulating or gathering, combined with the essential nature of the justice system, the need for it to continue and the existence of a significant number of companies that have not yet registered on the Company Registration System, made the filing of a complaint or additional document a condition on said registration within a period of 15 days, as of 18 May, 2020.

Although there have been opinions to the effect that the right to a full defence and the adversary system cannot be ignored to the detriment of the newly established procedure, which is why companies that are not registered should continue to receive service of process and notifications by post, especially since these should preferably be done by electronic means (Article 246 §1, CPC), the CNJ set out the understanding that “the lack of a national system from the National Council of Justice allows the courts to develop their official communication systems for procedural acts locally, pursuant to civil procedural legislation. If this were not the case, the courts would be prevented from complying with the provisions of Law No. 11,419/2016, which deals with the computerisation of the judicial process”.

In addition to the above citation – taken from the judgment handed down in Request for Measures No. 0006460-03.2018.2.00.0000, reported by Councilmember Valtércio de Oliveira, filed against the Amazonas, Roraima and Acre Courts of Justice, the CNJ held that the intention of Article 196 of the CPC and its Resolution 234/2016 was to centralise electronic procedural communications to facilitate the justice system, but not to make communication unviable in the absence of the planned platform.

It was also highlighted that the CNJ “is allowed to control the legality of administrative acts, but is only able to halt them when they violate the law in a strict sense or the principles of public administration”.

In view of this, we believe that the understanding above may have an expanded interpretation (with caution), in order to cover, for example, the condition imposed by the Rio de Janeiro Court of Justice (TJRJ) to force companies to register. However, in a preliminary analysis, it seems to us that the application of the fine recommended by the Mato Grosso Court of Justice (TJMT) is illegitimate and unreasonable, inasmuch as the causes and circumstances that led the company not to register are not known, in addition to there being other ways of serving the party with process and notifying it other than electronically.

Our clients, affected by the above regulation and operating in different business segments, have, as expected, acted differently, ranging from those that mobilised themselves to register with each of the Courts that allowed this when the New Code of Civil Procedure came into force in 2015, to those who opted to register only with the largest Courts in the country and those that will only register after the CNJ has created the Communications Platform.

And to make the registration feasible, taking into account the specific requirements of each type of client, we have developed mechanisms that monitor the system’s implementation by the CNJ, closely follow new resolutions and requirements made by the Courts, assess the clients’ documentation and assist in carrying out the registration quickly and effectively.

Thus, since the CNJ has not yet made the Communications Platform available, but tools have been implemented individually by each Court that enable companies to register in order to receive electronic service of process and notifications, and also observing the recent trend of achieving mandatory registration through the application of sanctions, our firm recommends that registrations be carried out before all Courts that have made this available, which will demonstrate the good faith and collaborative spirit of those involved, thereby facilitating and optimising the justice system.