O TCU e o controle das agências reguladoras de infraestrutura: controlador ou regulador?

• Autor(a) principal: Pereira, Gustavo Leonardo Maia
• Data de Publicação: 2019
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Repositório Institucional do FGV (FGV Repositório Digital)
• Texto Completo: http://hdl.handle.net/10438/27366
• topic: Regulatory agencies; Autonomy; Control mechanisms; Federal Court of Accounts; Powers; Discretion; Replacement of the regulator by the controller; Agências reguladoras; Autonomia; Mecanismos de controle; Tribunal de Contas da União; Competências; Discricionariedade; Substituição do regulador pelo controlador; Direito; Agências reguladoras de atividades privadas; Brasil. Tribunal de Contas da União; Autonomia administrativa; Controle administrativo; Discricionariedade administrativa

The research is guided by the objective of seeking to understand, from empirical elements, how is the interaction between the Federal Court of Accounts (FCA) and the regulatory agencies of infrastructure, as well as if the control observes the limits of its competences. Brazil has adopted the model of independent regulatory agencies as an institutional arrangement to make feasible the privatization of activities and services previously attributed exclusively to the State, especially in the infrastructure sectors. The characteristics of regulatory agency autonomy, however, are constantly being redefined. They stem, to a large extent, not only from the rules, but also from the interactions between agencies and other state bodies and from the degree of openness of regulation to public participation. The analysis of relevant elements of the institutional gear in which the agencies are inserted reveals that normatively idealized decision autonomy is to some extent disfigured. As an external control body, the FCA has exercised regular oversight on regulation, especially on concession contracts and regulatory standards. Although it has a speech that must respect the discretion of the agencies, there are indications that the Court goes beyond the limits of its powers and ends up functioning as a regulatory review body. By making legality control over all regulatory activity, and not only on issues related to the state's financial activity, and issuing acts of command, which includes the application of sanctions, based on parameters such as economicity and legitimacy, the FCA opposes the arrangement of powers provided for in the legal order and replaces the regulator, thereby derogating from the statutory system of agency autonomy. From an empirical analysis of cases assessed by the FCA, referring to 5 (five) infrastructure sectors, 8 (eight) strategies and methods were mapped out by the control body to interfere in the regulation, which allowed the control dynamics to be confronted with the current division of powers, in order to test the hypothesis that in the interaction between the FCA and the agencies there is a prevalence of substitution control. The result of this scenario is that the FCA, in overhauling the regulation, ends up managing the discretion reserved to the regulator, leaving to some extent the role of external controller and assuming the role of regulator.