The Constitutional Concept of Services and the Caselaw of the Brazilian Supreme Court

Abstract

The present article aims at critically analyzing the decision of the Brazilian Supreme Court in the judgement of Extraordinary Appeal n. 651.703. In this case, the Brazilian Supreme Court adopted the understanding that the Constitution does not employ “truly constitutional concepts” and the concept of “services” connotes the idea of “utility to another”. By employing semantic, systematic, historic, genetic, and jurisprudential arguments, this article intends to demonstrate the incorrection of such decision. The article concludes in the sense that graver than the disregard of the norms and limits imposed by the Constitution to the exercise of the power to tax in this concrete case, it is the possibility of using this decision as precedent to future cases involving norms that attribute tax competence. The consequence are the disregard of the constitutional norms and the submission of the Constitution to statutes.