On 22 December 2022, PROCON/SP published Normative Ordinance No. 0229/2022, establishing the State Code of Inspection and Sanctioning Procedures (“Ordinance“), and providing instructions for the use of the PROCON/SP digital system.
The referred Ordinance establishes the State Code of Inspection and Sanctioning Procedures, aiming to regulate the inspection activities by PROCON/SP and the sanctioning administrative process, referring to the violations of norms established in the Consumer Defense Code.
The Ordinance foresees acts in administrative processes, bringing rules on the counting of deadlines; summons, subpoenas and notices; legal representation; inspection instruments; challenge by the supplier on the value of estimated gross revenue; extenuating and aggravating circumstances; decisions; resources etc.
The Ordinance is also very specific regarding the secrecy of all inspection acts and sanctioning administrative processes, until the publication of the final unappealable decision.
The Ordinance also predicted that administrative sanctions (except fines) may be applied on a precautionary basis in cases of extreme urgency or in cases of the preservation of life, health, safety of consumers and protection of their economic interests.
The amount of the fine will be calculated based on the monthly gross revenue of the supplier (to be estimated by PROCON/SP), the nature/group to which the infraction is framed, as well as the value of the benefit obtained, according to the gain obtained from the administrative infraction. This value can be estimated, provided that it is substantiated, and, when it is not possible to determine it (or, when it does not exist), it will be disregarded from the calculation.
Within the same period that the supplier will have to pay the fine imposed (i.e., 15 days from the summons), they may also contest the amount of estimated gross revenue and offer an administrative defense, under penalty of estoppel and acceptance of the estimated gross revenue.
For procedural rules, the Ordinance will be applied immediately to all ongoing processes and, for material rules, these will only be applicable to ongoing processes if there is no other process that is more beneficial, provided that there is no final decision.
Finally, with the publication of the aforementioned Ordinance, all PROCON/SP activities that were laid out in various sparse regulations and, in some cases, not yet regulated, are now properly regulated, guaranteeing greater legal certainty, transparency and predictability in administrative activities by PROCON/SP. Our Consumer team is available to provide further clarifications on the subject.