The origin of the name Pedagón, from the Latin pes, pedis, pedaticum, means “the right to set foot”, or “where the foot is set” and is related to the obligatory cash benefit for the transit of a certain stretch. Toll is “the designation attributed to a charge that may be required of road users, in order to cover construction costs, to compensate the works involved therein or related to their permanent conservation, as well as complementary services made available to those who use them” .
Just for the sake of curiosity, the toll is not an innovation in the modern scenario. Its origin comes from the most remote ages, with records of up to 4 (four) thousand years, and was instituted by the Portuguese Court in the national scene.
Its prediction legally came only from the 1946 Constitution. The toll that was previously seen as an inexhaustible source of wealth production began to objectify the reimbursement of road maintenance costs.
Since then, and with some frequency the subject has been dealt with widely, and several articles are being published dealing with the constitutionality of its collections in both state highways and federal highways throughout the country.
At first, the present conflict was based on the fact that it violated Article 5 of our Federal Constitution, which deals with the right that “All are equal before the law, without distinction of any kind, guaranteeing themselves to Brazilians and to foreigners resident in the country the inviolability of the right to life, liberty, equality, security and property ”; and in item XV of the referred article: “It is free to move around the national territory in peacetime, and any person, under the law, may enter, remain or leave it with their property”.
That is, the question is: would the impositions of these charges prevent the free movement of the population?
It happens that another article also of the Federal Constitution more specifically the 150, item V, provided that the Union, the States, the Federal District and the Municipalities was prohibited “to establish limitations to the traffic of people or goods, through interstate or intermunicipal taxes, except for the collection of tolls for the use of roads maintained by the Public Power ”.
Given this fact, there was once again an increase in disagreements regarding the issue of its legality.
In 1999 our Supreme Court presented its position only in relation to the statement that the tax was defined as Tax, which previously had no definition either.
Soon after such an interpretation, there was an effective need to analyze another article, now of the National Tax Code, which provided that for the characterization of the Tax there should be: “the consequence of the exercise of police power or the actual or potential use of specific and divisible public services provided to the taxpayer or made available to him ”.
This issue was also resolved by the courts themselves, until we got to the point that it would no longer be possible to discuss the legality of the toll.
Among these principles, one only makes the caveat that until we reach this chain of decisions, there has been a certain amount of time. As we know, access to justice is free and constitutionally guaranteed. Therefore, until there was a firm current on the case, and legislation that declared all issues resolved, several lawsuits were filed with the judiciary
Thus, even though this problem has been clearly questioned and resolved, the legal nature of the toll as to its characterization as a fee or tariff is still questionable.
The tax is required by the government for tax purposes, and in return some service is provided in favor of the population. Already the tariff, is charged by private assigned by the State under contract.
Therefore, most of the tolls are given by the government to the private through contract. Therefore, they would fit perfectly into the fare modality.
In a way, we have the sole and exclusive certainty that the amount corresponding to the toll payment is due and must be paid by the taxpayer in any way. The only question that still remains of divergence is its legal nature, but in the end it does not change the factual context of the situation.
Yuri Valladão Carvalho, Corporate Area Lawyer at Vigna Advogados Associados