30 Jun PROVISIONAL MEASURE THAT POSTPONED LGPD´S ENTRY INTO FORCE TO MAY 2021 IS EXTENDED BY THE NATIONAL CONGRESS
The Provisional Measure No. 959/2020 (“MP 959/2020”) that postponed the entry into force of the Brazilian General Data Protection Regulation (“LGPD”) to May 3rd, 2021, was extended for an additional sixty (60) days period;
The Act No. 71/2020 issued by the President of the National Congress, Senator Davi Alcolumbre, was signed last Friday (June 26) but was only published on June 29 of the Official Gazette.
The MP 959/2020 was edited by the President on April 29,2020, and over its sixty (60) days of proceeding, one hundred and twenty-six (126) amendments were presented by Deputies and Senators, forty-four (44) of them exclusively addressing data protection issues[1].
Despite of those amendments, MP 959/2020 was not set up for voting during the period of its proceeding.
In order to be approved, MP 959/2020 must obtain the favorable vote of a simple majority of congressmen: first in the Chamber of State Representatives and, later, in the Federal Senate.
It is also possible that the Chamber of State Representatives proposes a bill of law of conversion (“PLV”) to the provisional measure to be voted in replacement to the text originally published under the MP 959/2020.
It is worth noting that the maximum period for the proceeding of a provisional measure in the National Congress is one hundred and twenty (120) days from the date of its first publication, as determined by article 62, paragraph 7, of the Federal Constitution.
After that, if MP 959/2020 has not yet been voted in the two Houses of the National Congress, its measures will lose their effectiveness, and the Congress will be responsible for regulating by a legislative decree, within sixty (60) days, the legal relationships established and acts performed under the MP 959/2020 ruling.
This means that MP 959/2020 must be necessarily voted by August 26, 2020, or it will lose its effectiveness as regards the change in the date of the LGPD provisions´ entry into force and other matters therein regulated.
However, if this occurs, the LGPD will be enforceable from August 2020, with its sanctions applicable from August 2021.
It remains unclear which rule should govern the relations and acts practiced during the period of validity of MP 959/2020, in the event it loses its effectiveness. Above all, when taking into account that during the MP 959/2020 term, the original LGPD´s entry into force deadline may become enforceable, in August 2020.
All these aspects shall be taken into consideration in the National Congress discussion in the event a legislative decree is needed to discipline the effects of the loss of the effectiveness of MP 959/2020.
In the case of its appreciation by the National Congress, the following summary of scenarios would apply to the voting, to be initiated in the Chamber of Deputies:
(i) Rejected;
MP 959/2020 loses its effects and its processing is closed and filed.
The National Congress will have a sixty (60) days period to issue a legislative decree that regulates the resulting legal relationships and acts performed during the MP 959/2020 term.
The LGPD´s date of entry into force will occur in August 2020, in an exact day still pending definition.
(ii) Approved pursuant to the original and published text; or
The MP 959/2020 approved in full is sent to the Federal Senate for voting.
If the Senators also approve MP 959/2020 in its entirety, its text is sent for promulgation and becomes law.
Senators may offer a new PLV for approval in substitution to the MP 959/2020. In this case, the matter returns to the Chamber of Deputies, which deliberates exclusively on the PLV offered by the Federal Senate.
(iii) A PLV is offered and approved in substitution to the MP 959/2020;
MP 959/2020 approved in the form of a PLV is sent to the Federal Senate for voting.
If the PLV is approved in the Senate without changes in merit, its text is sent to the President for sanction.
If the PLV received from the Chamber of Deputies is approved with merit amendments, or MP 959/2020 is approved in the Senate to the detriment of the PLV offered by the Deputies: the matter returns to the Chamber of Deputies, which deliberates exclusively on the amendments or on the MP 959/2020.
In the Chamber of Deputies, the changes promoted by the Senate must be accepted or rejected, with the matter being referred to the sanction (if the PLV is approved) or to the promulgation (if the original text of the MP 959/2020 is approved).
In case the PLV approved is subject to veto, finally it will be up to the National Congress to decide on the presidential veto and, thus, conclude the process of processing the matter.
[1] Access here the article we previously published on the Blog on the MP 959/2020 in which we analyzed the main amendments proposed by parliamentarians and the discussion in the National Congress on the postponement LGPD´s entry into force.
This article is intended exclusively to provide information and does not contain any opinion, recommendation or legal advice from KGV Advogados concerning the matters here addressed. Copyrights are reserved to Kestener, Granja & Vieira Advogados.
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