Agências reguladoras: atuação e propostas de mudanças.

Abstract

The spread of Regulatory Agencies around the world arose from the need to maintain normative instruments to regulate public services transferred to individuals during the break with the state model of well-being. This innovation reached the Brazilian scenario as a globalized trend of the new form of behavior of the State towards the economic activity - Regulatory State. Internally, they were implemented with the Reform of the Brazilian State, in the 90s, under North American inspiration and became part of the indirect administration staff, in the form of autarchies under a special regime. In view of the relevance of the theme, the objective of the present study is to analyze the way in which these federal entities have been performing regulatory activity in Brazil, paying attention to their main characteristics and the powers they are endowed with, as well as to ascertain what changes are currently being carried out. proposed by the Lula government for agency staff, with their possible consequences in the legal and economic spheres. Bibliographic studies were carried out on the subject, analysis of the relevant legislation and examination of matters dealing with the behavior of the Regulatory Agencies in force. It was found that the special autarkic character of these entities is due to the set of privileges that were assigned to them by specific law for the achievement of their purposes. Thus, they have administrative autonomy, financial independence, their leaders have stable mandates, they exercise typical State functions; all in order to provide them with greater technical specialization during the regulatory exercise. They act by issuing normative acts, the legality of which is subject to compliance with the standards set by law; resolve conflicts within the scope of their competencies, maintaining the principle of the non-avoidability of judicial review (art. 5, XXXV, of CF / 88); they exercise tariff regulation, to a greater or lesser degree, in order to maintain the requirement of the modality of tariffs charged to consumers; they are responsible for bidding and for the granting of services for regulated activities, in addition to acting in the preservation of free competition and repression of the abuse of economic power in regulated sectors, as a way of implementing the functions of the bodies that operate in defense of the economic order. The main changes brought by the preliminary draft laws presented are the linking of the performance of these entities to a management contract to be signed with their respective Ministries (in which the goals and obligations to be fulfilled by the agencies will be outlined) and the loss to the latter concession power. The not-so-pleasant reception of these changes boils down to a reduction in the autonomy of the agencies, calling into question the legal security of the contracts, necessary to attract investments in the sectors regulated by the agencies, in addition to corresponding to a return to the times before the implementation of these entities.