Federalismo cooperativo e o exercício da competência administrativa ambiental

This paper aims to discuss the conflicts of competence in environmental matters, as well as the legitimacy of the normative acts in the exercise of jurisdiction effected environmental management. For this work, addresses the issue of federalism, North American (dual) and German (cooperative), deepening its historical and theoretical fundamentals, as well as the influences on the evolution of the ideological matrix of Brazilian federalism. Distinguishes itself around the problem the theoretical and abstract discussion involving the constitutional division of powers, and the issue of his relationship with the vicissitudes in the embracement of environmental matters that invariably leads to mistakes in the exercise of jurisdiction environmental management. Its highlight the existence of a framework environmental law, embodying the principles themselves as well as a specific object of authority, which qualifies a different interpretation of the rules of constitutional powers as well as influencing the acting agent of government in managing the public good environment. The study represents an exploratory research as it investigates the depths of the institutes are in evidence not only with satisfying its practical outcome. For this to happen, explores bibliographical sources and identified by the science of law as more important, as the search for social-political boundary which takes the issue studied in their historical and contextual materiality, whose study is essential for a complete understanding of the topic . The dialectic that arguments have been constructed throughout the monograph, attempts to pass a critical way to expose the author's ideas, which considers as essential in the arrival of new questions

O princípio constitucional da legalidade administrativa e os limites do controle das atividades-fim das agências reguladoras pelo Tribunal de Contas da União

Analysis of the role of the Union Accounts Court on the control of regulatory agencies, with the objective of identifying the limits of the Institution s acting on the aim activities of the agencies, particularly the control limits of the Court on the merits of discretionary administrative actions, taking into account the autonomy of these entities in the model of regulatory state. Analyzes the principle of administrative legality, the control of public administration, state s action in the economy and facing regulatory agencies, their emergence, evolution and characteristics. Includes the study of jurisprudence and doctrinal differences, as for the limits of the powers conferred by the constitutional legislator to Federal Court of Audit, regarding the control of agencies aim activities, or, in other terms, their regulatory and inspector missions of market, under the principle of administrative legality. Performs analysis, based on case studies involving Court s audits on regulatory agencies. Are appreciated differences within the Institution about the their decisions effects - imposed or not - as regards the arrangements to be adopted by regulatory agencies to correct the flaws and omissions found during Court s inspections, in which content of the act of public agent, despite their technical nature, can happen the criterion of convenience and opportunity

A Constitucionalidade do decreto de licitações da Petrobrás à luz dos princípios da legalidade e da eficiência

PETROBRAS, a Brazilian oil company, follows principles of public administration and from the Constitutional Amendment 9/95 in Brazil began to compete with other companies with the flexibility of the oil monopoly. In this new model started to use the simplified procedure for bidding so that could compete on equal terms. The ordinance that adopted a simplified procedure for bidding has been the subject of some criticism and lawsuits especially under the Court of Audit and the Supreme Court in Brazil. The analysis of their constitutionality, and the possibility of their use by other group companies is the theme of this work, and for this purpose, permeates through the notions of judicial review in the Brazilian law on the stage of law and economics analysis of the norm, and the principles applicable to PETROBRAS and the devices most frequently asked about the implementation of 2745/98 Decree. For this, the basic issue that should be investigated further is the regulatory power of the Federal Executive and the delegation of powers within the legislature and its conformation to the constitutional regency

O dumping ambiental no setor sucroalcooleiro à luz do princípio da livre concorrência

The goal of this study is to investigate about the existence or absence of environmental dumping in the production of fuel ethanol in Brazil, as well as identifying the reasons why the figure of ecological dumping is pernicious to the principles enumerated in constitutional economic order, in particular the principle of free competition. In the twenty-first century environmental issues gained momentum and importance in these terms, which was seen as a mere fallacy given the concern of governments of various countries, after all, environmental protection shows up as the only means of bringing about the maintenance of life at planet. Indeed, it is essential to halt the drastic effects of climate change, and think fast and efficient solutions. Undoubtedly, the contemporary requirements that resulted in the transition to a new economy brings with it the duty of enterprise search for sustainability, and this behavior can not be passive, otherwise it is imperative to work hard and incessant economic agents, even if initially costs are high, this step will ensure a production accountable, transparent and free from accusations of environmental degradation. It is also intended to study the importance of the sector not only as a source of economic growth, but mainly, its contribution to national development, without forgetting that this is devoted in the Constitution of 1988 as one of the objectives of the Federative Republic of Brazil. In fact, the criticism most common perceptions about the production of biofuels, said the interests of the countries producing them in large scale, will eventually generate a exhaustion of soil and a significant increase in food prices. However, the ethanol produced in Brazil is unique in that it is produced from cane sugar, a product is not intended for human or animal, not to mention that the recovery of land just to the rotation with the planting other cultures. It is expected that environmental certifications are useful to demonstrate the quality of ethanol for export and to refute unfounded criticism. Finally, this study will be analyzed further solutions for the plants to develop an economic activity without damaging the environment and in compliance with Brazilian law

O serviço público de fornecimento de água nas regiões metropolitanas: cooperação entre entes da federação e desenvolvimento

This work aims to study the material conflict of jurisdiction as to the ownership of public water supply, between the municipalities and the Member States, in metropolitan areas. One of the important points of analysis is the realization of the fundamental right of access to water, a right that is implicit in the Constitution of 1988, being prevented from having their achievement considering the lack of definition of the ownership of the service. Knowing discussed the essential public service, in all its stages, it will realize it is a complex activity that depends for its operation, joint activities of federal entities and the society. In its pursuit of development (understood as better conditions of life), that in view of the Federal Law nº 11.445 of 2007 is the universal access to service, require the adoption of popular participation and the positive benefits of the state, such as planning. Moreover, it will find cooperation between federal entities (after the study of Brazilian federalism) peaceful solution to the conflict through the adoption of joint management or shared, depending on the factual situation and legal

DEVIDO PROCESSO LEGAL E PROCESSO ADMINISTRATIVO SANCIONADOR NAS AGÊNCIAS REGULADORAS

This paper discusses the growing attention that, over the last decades, has been given to the administrative procedure in Administrative Law, as it also highlights the procedures which are in tune with the new trappings of this legal field. It focuses on the sanctioning competence of regulatory agencies, notably what concerns the procedural guide that conditions its exercise. It aims at gathering varied elements, many times dispersed over the legal system, so it is possible to list, with a satisfactory degree of detail, the procedural constitutional guidelines which are indispensable to the sanctioning of private entities through punitive action by regulatory agencies. It highlights the due legal process clause, for the abundance of the protective set there is around it, as a guiding constitutional principle for the application of sanctions by regulatory agencies. It examines the repercussion of the constitutional principle of the due legal process on Administrative Law, focusing on the most relevant principles on which the first unfolds itself. It analyzes, in light of the due legal process principle, the sanctioning administrative procedure developed in regulatory agencies. In conclusion, it is asserted that there is no room, in the Brazilian legal system as a whole, for sanctions to be applied summarily; that there reigns, in our system, an absolute presumption, dictated by the Constitution, that only through regular procedures can the best and fairest decision, concerning cases in which the rights of private parties could be affected, be taken by the public administration; that, respecting the principle of the right to a fair hearing, it is indispensable that there be motivation of a decision that imposes a sanction; that there should be, in homage to the principle of full defense and for the need to preserve the autonomy of the regulatory party, an appeal court in every agency; that the principles listed in the federal law No. 9.784/1999 should be mandatorily monitored by the agencies, for this is the only alternative consistent with the Constitution

Participação administrativa processual na administração pública dialógica

The dissertation, which is based on the deductive method, by using general concepts of the theory of the administrative participation in the administrative process, addresses the importance of strengthening administrative and procedural activities of citizen involvement in public administration for the administrative consolidation of democracy in Brazil. The emergence of Administrative Law has particular importance for the understanding of its institutions and, of course, for the different fields of public administration. The authoritarian profile of this area of law still exists as a clear recollection of their origin, mainly based on a relationship of superiority of the state over the individuals. Indeed, does not even modern constitutionalism could print a true democracy administrative, since the constitutions were not properly observed by the Government. Furthermore, only the process of constitutionalization of administrative law legal relations took a more democratic profile. That is, the creation of an environment of dialogue with civil society is a recent achievement of the Brazilian government. As the administrative process involves dilemmas and solutions of state action, because it is revealed the expression government, the strengthening of institutions and principles related to the administrative procedure is important for role in making a more participatory relationship between state and citizen. Thus, administrative participation can be considered not only a mechanism of control and legitimacy of state action, but also for improvement and reduction of administrative costs, as a requirement of the principle of efficiency. The objective of this investigation is to assert as the administrative legal relation, the administrative legality, the administrative jurisdiction, the processuality administrative, the consensuality administrative and administrative justice, together with administrative participation, can contribute to a more democratic role of the Public Administration and, therefore, more dialogic and consolidator of the fundamental rights of citizens. Therefore, we highlight the importance of the administrative process and administrative participation as mechanisms for improving public policy and thus as a means of reducing administrative costs mediate the state

A Servidão Administrativa e o Estado Regulador: Compatibilidade com o Princípio Constitucional da Legalidade e a Limitação ao Direito Real de Propriedade

The economic changes occurred in the 90s, with the restructuring and privatization of various sectors of the economy have led to a redefinition of the State role, assuming a position of regulator and supervisor of public services in place to direct its role as straight intervenor. It is through the regulatory agencies, autarchies with special legal personality under public law, that the Regulator State will act. In this context, the first objective of this research is to analyze the legality of easements imposed by entities of the Direct Administration and Regulatory Agencies, whose execution is delegated to legal persons of private law, being those public service companies or mixed-economy societies. This examination in question the limits of servitude as a restrictive institute of property rights, observing the principles of function, supremacy of the public interests over the private ones, legality and the separation of powers. Defend the property rights like a fundamental right and your insurance as determining factor of economic development and social justice. Use the procedure in use will be the historiccomparative procedure, in order to demonstrate the legality of the public act as a maximum attempt to preserve the balance between the expansion of public services in various sectors of the economy, and the preservation of property rights, through regulation

O quinto momento do homem: ética e dignidade

This work has as objective to rise stages of the human beings dignity evolution and its superposing with the entirety and the men s activities development, until its elevation as a constitutional principle and its evolution as a judicial decisions vector, being important to register that conviction ethics or convenience ethics imposes the existence of the constitutional principle. Human beings dignity principle deals about a historic and cultural, politic and social and economical construction, whose sloping is violently imposed to the production resources, which drives the present work through a trial of clarifying and aggregating all those nuances of the men s stages until they find out, welcome and construct the human beings dignity in all its subjective and objective aspects. The adopted research method was based in historic enrolment of the appearance among people since the bases of the word dignity until the acceptation of this value in the Brazilian society. This research searched dignity s doctrinaire valuation at the juridical point of view and the way of appreciation of this value, in its condition of constitutional principle, by the Brazilian Judicial Power. The work concludes that man and Law s evolution, in this moment, exposes, necessarily, an ethical posture in favor of dignity

Perfis do controle jurisdicional de políticas publicas: parâmetros objetivos e tutela coletiva

This paper focuses on a study of public policy jurisdictional control as some effectiveness mechanism for cultural, economical, and social fundamental rights. It investigates the juridical profile of public policies based on premises of the current (Neo)Constitutional State model and the assertion of an essentially constitutionalist Law paradigm from its genesis to its most peculiar elements, and through tormenting issues, such as: its position between Law and Politics, the difference with reflective subjective rights, and the problem of high financial costs. Once its object is identified, it moves forward into the theme itself, which is that of jurisdictional control, investigating its legitimacy based on paradigmatic judicial precedents and the facing of themes such as: current role of the Judicial Power, the splitting of state functions, administrative discretion, financial affordability, illegal omissions, and budget control. Finally, it examines, as its study central object, objective parameters for definition control, execution, and transparency of public policies, as well as identifying the most appropriate collective jurisdictional tutoring to its purposes together with some of its law process means. Therefrom, it shows new perspectives for the recent study on jurisdictional control of public policies, building foundations for the fundamental rights effectiveness

A Competência normativa das agências reguladoras e seus limites principiológicos no direito brasileiro

The transition of the liberal state to welfare state, globalization and the crisis of funding from the government spending on the multiple roles demanded an overhaul of the means of intervention in the economic domain and structure organizational of the Public Administration by enhancing the performance of regulatory functions. Therefore appear in Brazilian law independent regulatory agencies with legal administrative particular that gives autonomy increased, with fixed terms and stability of its leaders, police and competencies, normative and administrative judges. In this scenario, given the autonomy granted by the laws of the creation of regulatory agencies, the legislative competence becomes the most contentious issue, as not infrequently is innovation in the legal system. The main foundations of innovative extension producible by regulatory agencies, which diverges doctrine, are the constitutional attribution of own competence of the Public Administration and the discretionary power. Thus, it is necessary to delimit the constitutional and legal foundations of special legislative powers of these autarchies in our legal system, seeking ways to limit and control the production rules of those entities, for the purpose of position them before the powers constitutionally constituted. We note that with the constitutionalisation of administrative law regulatory agencies found limits to its performance in the normative constitutional principles, especially through the principles of efficiency, morality and proportionality, which has enabled a more effective control of their normative acts

As zonas de processamento de exportação como instrumento de desenvolvimento e redução das desigualdades regionais

The existence of inequalities among the Brazilian regions is an indeed fact along the country s history. Before this reality the constitutional legislator inserted into the Federal Constitution of 1988, as a purpose of the Federative Republic of Brazil, the reduction of regional inequalities. The development has also been included as a purpose from the State, because there is an straight relation with the reduction of regional inequalities. In both situations is searched the improvement of people s living conditions. . In pursuit of this achievement, the State must implement public policy, and, for this to happen, it needs the ingress of income inside of the public coffers and support of economic agents, therefore the importance of constitucionalization of the economic policy. The 1988 s Constitution adopted a rational capitalism regime consentaneous with current legal and social conceptions, that s why it enabled the State s intervention into economy to correct the so-called market failures or to make the established objectives fulfilled. About this last one, the intervention may happen by induction through the adoption of regulatory Standards of incentive or disincentive of economic activity. Among the possible inductive ways there are the tax assessments that aim to stimulate the economic agents behavior in view of finding that the development doesn t occur with the same intensity in all of the country s regions. Inside this context there are the Export Processing Zones (EPZs) which are special areas with different customs regime by the granting of benefits to the companies that are installed there. The EPZs have been used, by several countries, in order to develop certain regions, and economic indicators show that they promoted economic and social changes in the places where they are installed, especially because, by attracting companies, they provide job creation, industrialization and increased exports. In Brazil, they can contribute decisively to overcome major obstacles or decrease the attraction of economic agents and economic development of the country. In the case of an instrument known to be effective to achieve the goals established by the Constitution, it is duty of the Executive to push for the law that governs this customs regime is effectively applied. If the Executive doesn t fulfill this duty, incurs into unjustifiable omission, correction likely by the Judiciary, whose mission is to prevent acts or omissions contrary to constitutional order

Democracia participativa e regulação econômica: uma questão de legitimidade

This work presents an analysis about the legitimation of independent regulatory commission`s rulemaking power by participation procedure. It is observed that political and administrative decentralization and fragmentation of State, with the purpose of approaching citizens and provide, more efficiently, the functions acquired by the passage of the Welfare State, leads to a deficit of legitimacy (democratic crisis), which is noticeable in the making of legal norms by directors of independent regulatory commission to regulate specific economic sector. However, we understand that this crisis stems from the observation of the contemporary world from dogmas and legal institutions of the eighteenth century, without their evolution and adaptation to the modern world. The legitimacy must be perceived as the justification of power, relation command /obedience, which, from the Modern State, has the democracy as standard. Therefore, just as the world has evolved and demanded political and administrative decentralization to accompany him, it is necessary to the development of the idea of representative democracy (formal legitimacy) to participatory democracy (legitimacy stuff). Legitimacy is not confused with the legality: as the legality is on observance to internal legal system, the "rules of play"; legitimacy, as inputs to be fed into this system, the selection of the different expectations in the environment. Nevertheless, the legitimacy will take place by legality, through introduction of rational and communicative procedures: procedures get fundamental importance because these will be the means to select the expectations to be introduced in the legal system in order to make decisions more fair, rational and qualified towards society. Thus, it is necessary to its opening to the environment for dialogue with the government. In this context, we try to make an analysis of constitutional norms based on systematic and teleological interpretation of these norms to build these arguments. According to the Constitution of 1988, participatory democracy is a result of the democratic principle (sole paragraph of art. 1 of the Constitution), and it is an expression of citizenship and political pluralism, both foundations of Republic (respectively Art. 1st, inc . V and II of the Constitution), as well as the national consciousness. From another point of view, that principle consists of an evolution in the management public affairs (principle of Republic). The right of interested participate in the rulemaking process derives both the principle of popular participation (part of the democratic principle) and the republican principle as the due process constitutional (art. 5, LIV and LV, CF/88) and the right to petition (Art . 5 °, inc. XXXIV, "a", CF/88), and it is the duty of the State not only be open to participation and encourage it. Ignoring stakeholder involvement in procedures and / or expressions compiled can be causes of invalidation of the rule of law produced by addiction of procedure, motive, motivation and/or because of the administrative act. Finally, we conclude that the involvement of stakeholders in the process of making rules within the independent regulatory commission is the legitimacy and the validity of rules; and that, despite of the expressions do not bind the decision making, they will enter the system as juridical fact, balancing the field of technical discretionary of agencies

Hermenêutica constitucional e fficácia dos Direitos Sociais

The present research has, as general objective, to seek a constitucional hermeneutics directed toward the improvement of the efficacy of the social rights rules, with the purpose to solve the elapsins problems from the general picture of its inefficiency, which are disposed on the Constitution, in its ample majority, as mere regular norms. Leaving of the premise that no Constitutional norm can be without being materialized and the true development of the State is it the social one (based on the principles of freedom, equality and solidarity), it will be demonstrated that the arguments in favor of the legislative inefficiency configure a true blow on the Democratic State of Brazilian Law. For this, it will be done, preliminarily, a study of the basic rights, legal category where it is found the social rights. To follow, it will be analyzed the hermeneutics of the legal norms, with emphasis on the specifics of the constitutional hermeneutics and its methods of interpretation. Finally, the aspect on the improvement of efficacy and the effectiveness of the social rights will be studied, through a new readind of certain dogmas that still persist in the legal world, being distinguished the institutiones of the reserve of the possible and the existential minimum. Ahead of this, after verifying the new paradigmas of the interpretable activity, will be demonstrated how it is possible to get an upgrade on the effectiveness of the social rights

Regulação do livre acesso no transporte de gás natural à luz da ordem econômica da Constituição de 1988

In the middle of modern social changes produced by globalization and capitalism, several markets have changed. States have left the direct coordination of these markets (chiefly public utility sector in the form of monopolies), introducing regulation in order to promote competition. These changes have affected natural gas industry by promoting competition as a key factor to the development and the increase of firms in this market. The regulatory reform of natural gas industry ocurred in EUA and Europe Union and it has produced its first results. In Brazilian context, Constitutional Amendment nbr. 09 and Federal Law nbr. 9.478/97 ( Petroleum Law ) opened the natural gas market to a broad range of private economic agents and they finished the monopoly over the industry before managed by Petrobras. The new regulatory framework of Brazilian natural gas industry has designed competition as a central element to the new form of managment of business and contractual relationships of this industry. Among the regulatory instruments, open access regulation in natural gas pipelines is directed to promote competition. The questions arised about its implementation in Brazilian context are studied in the present work, in which it is discussed the constitutional rules and principles are to be applied to the open access regulation within the theme of statal regulation of economy present in constitutional economic order