Protection of Legitimate Expectations in Brazilian Administrative Law: 80-year-old Widow of a Pensioner

Abstract

This text is an (unofficial) translation of an opinion issued by Judge Ricardo Perlingeiro in a decision by a panel of judges on the subject of legitimate expectations. The case involved a pensioner who was the widow of a civil servant. She had serious reasons to believe in the stability and legality of the administrative action by which she was granted her pension benefits [although in fact the administrative authority’s decision had been erroneous]. That judgement set an important precedent for the Brazilian Federal Justice system (which mainly exercises jurisdiction over federal administrative law) because it establishes a comparative analysis between the “Berlin Widow” precedent (Oberverwaltungsgericht Berlin, Entscheidung, 14/11/1956. DVBl 1957, 503; DOV 1957,753; BVerwG, DVBl. 1958,652), German social legislation (§45 SGB X/Sozialgesetzbuch) and Brazilian legislation (Lei 9.784/99), breaking with the understanding that beneficial legal effects could never be derived from illegal administrative actions. The judgement also deals the distinction between objective legal certainty (mainly based on the expiration of a limitation period) and subjective legal certainty, meaning that the citizen had legitimate expectations because she was demonstrably unable to know that the administrative act that benefitted her was illegal (the notion of subjective legal certainty may be associated with the concept of human dignity). The text also discusses the ex tunc and ex nunc effects of legitimate expectations: the essential issue is whether or not the court should uphold an illegal administrative action awarding benefits to a widow pensioner who believed in the legality of the decision by allowing her to not only to keep the payments received “illegally” (ex tunc effect) but also to continue receiving such payments in the future (ex nunc effect).