A solicitação de opiniões consultivas ao tribunal permanente de revisão do MERCOSUL : a técnica para que sejam realizadas consultas pelo judiciário brasileiro

Abstract

Mercosul’s controversies solution system was modified by Olivos’ Protocol in 2002. Several innovations were brought to the referred Protocol. The most relevant is the creation of a Permanent Court of Appeals. The first mention made by the Mercosul rule to the subject of pronouncing an advisory opinion is in the Olivos’s Protocol. This Protocol allows the Council of Common Market to establish ways of asking for advisory opinion to the Permanent Court of Appeals. The Olivo’s Protocol Regulation effectively treated the subject of advisory opinion. In this Regulation, all States Members are legitimated to ask for advisory opinion acting concomitantly and the Mercosul organs that have decisory capacity also the Superior Tribunal of the States Members that have national jurisdiction. The work developed aim excluvively at the last solicitation hypothesis. Besides the Olivo’s Protocol and its Regulation, the Dec. n. 02/2007 of the Common Market Council and the internal procedural rules for asking advisory opinion to the States Members of Mercosul treated this subject. The objective of this work is to analyse the requests for advisory opinion asked by the judges and the Tribunal of the States Members of Mercosul. Besides the regulations, the legitimacy for asking advisory opinion and the competency for giving advisory opinion, some aspects are especifically mentioned as follows: the request, the purpose of the request and the procedures for asking and giving advisory opinion. Initially in the studies, it was noticed that the requests for advisory opinion was the preliminary ruling system of the European Communitary Law. This verification conducted to the performance of a study comparing with the preliminary ruling system that aimed simply at contributing to understand the requests for advisory opinion. Later, the subject of the legal proceeding incidents was analysed with the objective of verifying if the request for advisory opinion could be included in the concept of legal proceedings incident. Finally, legal proceeding aspects for asking advisory opinion considering Brazilian civil process were mentioned.