The right to error

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By RAFAEL VALIM*

The incorporation of the “right to error” in Brazilian Law would reinforce the guaranteeing vocation of administrative law, offering people and companies a powerful shield against the State’s discretion.

1.

The so-called “principle of inexcusability of ignorance of the law” is widely known, according to which, under the terms of art. 3 of the Law of Introduction to the Standards of Brazilian Law, “no one excuses themselves from complying with the law, claiming that they do not know it”.

Although this principle is a prerequisite for the functioning of Law itself, it is necessary to recognize that its proclamation sounds like a mockery of a hypertrophied, incoherent and subject to constant changes legal system like the Brazilian one.[I]

To translate into numbers: a recent study revealed that, since the promulgation of the Federal Constitution, on October 5, 1988, until September 30, 2023, more than seven million legal norms were published, that is, 586 norms produced all the days.[ii]

Now, if experts face enormous difficulties in interpreting and applying this set of regulations, what can we say about most people, especially in highly complex sectors such as tax administration? This hypernomy produces overwhelming legal uncertainty and exposes people and companies to arbitrary conduct by the Public Administration, which makes it very easy to suddenly find administrative infractions, since it is strictly impossible to comply with all the rules in force.

Against this dismal state of affairs, on August 10, 2018, the “law for a State at the service of a society of trust” was published in France, through which it was intended to guide the French Public Administration towards the vision of an administration “ of advice and services”, of an administration “that supports”, “that engages” and “that dialogues”, instead of a strictly repressive Public Administration.

2.

Among the devices introduced by this law, the so-called “right to error” before the Public Administration stands out. What does that mean?

 Please allow us to reproduce, in free translation, the French legal text: “A person who has, for the first time, disregarded a rule applicable to their situation or who has made a material error when providing information about their situation cannot be subject, by the administration, to a penalty, whether monetary or consisting of the deprivation of all or part of a benefit due, if you have regularized your situation on your own initiative or after being invited to do so by the Administration within the period indicated by the latter”.[iii]

It follows, therefore, that the “right to error” – which, strictly speaking, is the right to regularize an infraction – translates into some duties of the administrative authorities, namely: checking whether it is the first time that the person commits the infringement; assess whether there is bad faith or fraud, if not, invite the person to regularize the situation. Once regularized, no penalty will be imposed.[iv]

Jacques Chavellier rightly underlines the transcendence of this innovation: “Firstly, there is a change in the way the administrator is perceived: it is accepted that he can make mistakes (a possibility that was largely ignored in public law) and a presumption of good faith is established in his favor (even if he has made mistakes); This is the end of the traditional relationship of distrust, in which the administered was seen beforehand as a suspect.”[v]

3.

The incorporation of the “right to error” in Brazilian Law would constitute a Copernican revolution in the relationship that Public Administration has with individuals. On the one hand, it would reinforce the guaranteeing vocation of administrative law, offering people and companies a powerful shield against the State's discretion; on the other hand, it would shift the efforts and concern of the Public Administration to what really matters: fraudsters and habitual offenders.

* Rafael Valim, lawyer, holds a PhD in administrative law from PUC-SP, where he taught from 2015 to 2018. Author, among other books, of Lawfare: an introduction (with Cristiano Zanin and Valeska Zanin Martins) (Countercurrent).

Notes


[I] VALIM, Raphael. The principle of legal certainty in Brazilian Administrative Law. São Paulo: Malheiros, 2010, 93.

[ii] The study was produced by the Brazilian Institute of Tax Planning – IBPT: https://ibpt.com.br/estudo-quantidade-de-normas-35-anos-cf-2023/

[iii] Original text: "Une personne ayant méconnu pour la première fois une règle applicable à sa situation ou ayant commis une erreur matérielle lors du renseignement de sa situation ne peut faire l'objet, de la part de l'administration, d'une sanction, pecuniaire ou consistant en la privation de tout ou partie d'une prestation due, si elle a régularisé sa situation de sa propre initiative ou après avoir été invitée à le faire par l'administration dans le délai que celle-ci lui a indique”. Accessible at: https://www.legifrance.gouv.fr/codes/id/LEGISCTA000037312374

[iv] There are, of course, exceptions to the “right to error: “The first and second paragraphs do not apply: 1° To sanctions necessary for the implementation of European Union legislation; 2° Penalties imposed for non-compliance with rules that directly protect public health, the safety of people and properties or the environment; 3° Sanctions provided for in a contract; 4° Sanctions imposed by regulatory authorities on professionals subject to their supervision.

[v] CHEVALLIER, Jacques. Confidence et droit à l'erreur. Action publish. Research and practices, 2020/1 (No. 6), p. two.


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