Jurídico 36 Anuário Yearbook ABLA 2013 Jurídico Legal establish levels of alcohol, and the reducing to zero of tolerance for alcohol when driving (in fact, near zero: 6 decigrams per liter of blood or 0.3 milligrams per liter of alveolar air). It is a commendable initiative that has responded to the calls from Brazilian society to reduce the high number of traffic accidents in the country, but not only with good intentions is public traffic safety policy structured. Alcohol is socially acceptable drug in Brazil, but without educational work to raise awareness of the human factor traffic safety will not be achieved with more severe criminal penalties. Without using breathalyzers and other equipment provided, traffic will continue to cause a death toll in Brazil that is equivalent to a civil war. In teh courts, the main ruling of interest to vehicle rental companies in 2012 was handed down by the São Paulo Tribunal of Justice (TJSP), which dismissed a challenge to the constitutionality of Law 13,296/2008 by the State of São Paulo (“The São Paulo Car Tax Law”). The São Paulo Car Tax Law is innovative in requiring the payment of tax in the place where the leased vehicle is being driven, rather than where the rental company is based and in declaring the lessee jointly liable for the tax. This thereby created a kind of ‘tax barrier’ or ‘toll’ for the vehicle rental companies operating in São Paulo. If replicated in other states, the São Paulo Car Tax Law will cause chaos in the rental industry, because all the companies will be required to keep an updated record of where your vehicles are being driven to pay the respective states the taxes proportional to the days when the vehicle was elsewhere. It is now up to the Supreme Federal Tribunal (STF) decide the issue in a Direct Action of Unconstitutionality (ADI) filed by the National Commerce Confederation at the STF. Another case of interest to vehicle rental companies in 2012 involved tax issues in leasing. In Brazil leasing has taken on the features of alternative vehicle financing and leasing, but has suffered problems regarding legal uncertainty about where service tax (ISS) is paid. In 2010, the STF ruled that financial leasing is liable to ISS, and in 2012 and the STJ established case law by stating it be paid in the municipality where the service provider is. Having overcome the legal uncertainty regarding financial leasing, the prospect is that this type of contract will become more common. The courts also put increased regulatory pressure on the vehicle rental companies. There are cases questioning the validity of the ‘protection clause,’ accusing it of being an undue sale of insurance, or, depending on the case, an unfair contract clause. Under the protection clause, the parties limit or exclude the client’s liability to compensate the car rental company in the event of an accident involving the rental vehicle. The topic is of keen interest, because the ‘protection’ corresponds to approximately 10% of the leasing sector’s revenues. There is a great misunderstanding among regulators, because the nature of ‘non-indemnity clause’ in the ‘protection clause’ is clear. However, until this imbroglio has been resolved, vehicle rental companies have a new problem to solve. 2012 also saw the expansion of car sharing models (leasing vehicles per hour or fraction thereof) vie the ostensible support of the government, which is perhaps the most striking legal feature of the new model. Through car sharing, vehicle rental is not only seen as an economic activity, but as a true public urban mobility service. The government operates in promoting, financing and operating the program, and offers urban facilities - among them parking spots - to make the system more convenient for users. In Paris a public-private partnership called Autolib rented 500,000 units in the first year of operations. It is interesting to observe how Autolib clearly positions itself as an alternative for urban mobility for Parisians, coordinating public and private interests to get renting into the public transport system. The technical and legal advances achieved by Autolib have the potential to positively transform the dynamics of cities and exponentially expand the vehicle rental market. The final result is positive: despite some setbacks, vehicle rental companies had great victories to celebrate in 2012. Adriano Augusto Pereira de Castro Advogado especializado na indústria de locação de veículos Assessor Jurídico da ABLA e do SINDLOC/MG. Lawyer, specializing in the vehicle rental industry (Legal Advisor to ABLA and SINDLOC / MG.
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