O procedimento de transação no regime sancionatório do setor energético

• Autor(a) principal: Sá, Joana Marta Rocha Coelho Frescata de
• Data de Publicação: 2023
• Tipo de documento: Dissertação
• Idioma: por
• Título da fonte: Repositório Científico de Acesso Aberto de Portugal (Repositórios Cientìficos)
• Texto Completo: http://hdl.handle.net/10362/159931
• topic: Acordo; Contraordenação; Direito de mera ordenação social; Discricionariedade; Energia; Interesse público; Justiça negociada; Regulação; Transação; Agreement; Administrative offence; Punitive administrative law; Discretion; Energy; Public interest; Negotiated justice; Regulation; Settlement; Direito

This dissertation examines the settlement procedure set forth in the energy sector’s punitive regime, assessing whether it complies with the purposes of punitive action without conflicting with the fundamental principles and guarantees. We start by presenting the progressive change of the State model as background for the emergence of regulatory authorities. The Regulatory State subverted the classic model of separation of powers by delegating the authority to ensure good functioning of regulated sectors to regulatory authorities, through the exercise of normative, regulatory and supervisory powers and the imposition of sanctions. When exercising sanctioning powers, the regulator seeks compliance with sectoral regulations by economic agents. Thus, settlement procedure will be effective if it achieves regulatory compliance through efficient resource management. In this context, we analyse the settlement procedure; a consensual decision-making mechanism introduced in Portugal by affiliation of European Union Law, influenced by the US negotiated justice, as an alternative to unilateral decision-making in a punitive process. The analysis of the European procedure frames its main contributions to the introduction of the settlement procedure in Portuguese law. We then describe the settlement procedure as a special process of the energy sector’s punitive regime and its differences from other consensual decision-making mechanisms. In order to assess its practical application by ERSE, we present the main conclusions of detailed data processing in the final two annexes. Framed the institute, we discuss the admissibility and ratio of the legal design of this consensual mechanism, but also the challenges inherent to its practical implementation. Of note is the assessment of legitimacy vis-à-vis principles of equality and guilt, within the framework of a discretionary procedure. We also try to present settlement potentialities regarding the compensation to those affected by the infraction and the implementation of compliance measures. We conclude by defending the suitability of the settlement procedure to achieve preventive purposes of the punitive system, without affecting the core of fundamental guarantees.