Ação direta de inconstitucionalidade por omissão n° 25: implicações no combate à celeuma das omissões inconstitucionais e repercussões no redesenho do pacto federativo nacional

Abstract

The present paper describes the Unconstitutionality Direct Action via Omission 25 (ADO), showing the position adopted by the Federal Supreme Court upon judging it, unconstitutional omissions. It should be stressed that, as a result of the enactment of the neo-constitutionalism, the constitutional norms gained normative power, changing from inefficiency to efficiency. The neo-constitutionalism model emerged in Brazil as a result of the Federal Constitution of 1988. With the promulgation of the new constitution, the individual, diffuse, social and political rights were avowed; all endowed with immediate applicability. The constitutional norms became, therefore, imperative, securing their effective enforcement. Conversely, the Republic Constitution comprises a set of norms that, in order to produce their maximum effects, they should depend on subsequent regulation as those rendered by an ordinary legislator (constitutional rules of limited effectiveness). As a result of these -regulation ineffectiveness. The Supreme Court, upon judging the Unconstitutionality Direct restricting itself to notifying it. One sees here a characterization of the non-concrete current, which has no practical effect, in that it addresses the battle against unconstitutional omissions. Consequently, the Constitutional Court adopts the intermediate concrete current, by which a deadline for solving normative breach will be established. Despite jurisprudential progress, the problem of unconstitutional omissions persists. In view of this, the Supreme Court has adopted an innovative position when judging the Unconstitutionality Direct Action via Omission 25, as proposed in the absence of a complementary law to regulate the reimbursement to the States and the Federal District of ICMS (value added tax) exemption. A period of twelve months is established for the National Congress to make the constitutional provision operative; however, once this period expires, the assignment will be sent to the Brazilian Court of Audit. The aim of the present research is to highlight the jurisprudential progress of the STF (the Superior Federal Tribunal), satisfying in this way the will of the National Assembly, safeguarding the supremacy of the constitutional text, expounding that a proclaimed decision should not be taken for judicial activism.