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

17 Pages Posted: 8 Jul 2015 Last revised: 23 Jul 2015

See all articles by Ricardo Perlingeiro

Ricardo Perlingeiro

Fluminense Federal University - Faculty of Law; Birmingham City University - Faculty of Business, Law and Social Sciences

Date Written: July 6, 2015

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; DÖV 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).

Keywords: Legitimate expectations, legal certainty, administrative jurisdiction

JEL Classification: I18, K32, K33, K23, K41, I11, I28, H75, H51, N46

Suggested Citation

Perlingeiro, Ricardo, Protection of Legitimate Expectations in Brazilian Administrative Law: 80-year-old Widow of a Pensioner (July 6, 2015). Available at SSRN: https://ssrn.com/abstract=2627341 or http://dx.doi.org/10.2139/ssrn.2627341

Ricardo Perlingeiro (Contact Author)

Fluminense Federal University - Faculty of Law ( email )

Rua Presidente Pedreira, 62
Niterói, 24210-470
Brazil

Birmingham City University - Faculty of Business, Law and Social Sciences ( email )

4 Cardigan Street
Birmingham, B4 7BD
United Kingdom

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