REPRESENTATIVIDADE ADEQUADA: ENTRE AÇÕES COLETIVAS E PRECEDENTES VINCULANTES

Abstract

The purpose of this article is to analyze the relationship between class actions and binding precedents in Brazilian law, specifically regarding the adequate representation. Class actions, as well as binding precedents, have the ability to produce universalizable results, that is, whose use directly reaches the group, class or category of persons holding a particular legal interest. For no other reason, both are doctrinally treated as distinct modalities of collective judicial protection. However, it is observed that only with regard to class actions it is required, as a validity assumption, the existence of adequate representativeness to the collective standing. The study is based, in terms of methodology, on bibliographic research and also on the analysis of the main decisions handed down by Brazilian courts. It was found that adequate representativeness plays a fundamental role not only for the formal validity of class actions, but also for the realization of the guarantee of due process of law, and that such attributes must also be present when dealing with binding precedents, given the existence disputed collective interests. On the other hand, it was also found that the normative exchange between class actions and binding precedents is, at least initially, able to offer mechanisms for attributing and controlling adequate representativeness. By way of conclusion, if it is possible to understand that the microsystems of collective protection and the judgment of repetitive cases communicate and, more than that, form a common normative framework, whose effects spread over transindividual legal relations, it is necessary to understand also that the adequate protection of collective interests lato sensu, in the context of mandatory precedents, imposes the adoption of mechanisms for the protection of the community, notably regarding the attribution and control of adequate representation in favor of those who are absent.