Os conflitos de competência normativa do estado regulador brasileiro no setor administrado pela ANP

The dissertation has by objective describe the administrative activity of regulation exercised by independent regulatory agencies, observing that this activity was already done before this structures creation, however, after a really deep administrative reform that had as objective built a Public Administration with more efficiency, it passed to be done with some own peculiarities of these new structures of regulation. The work gave especial attention to what concern the conflicts of normative competency that really often happen between ANP (Agência Nacional do Petróleo, Gás Natural e Biocombustíveis) and the legislatives organs of the Republic Federative of Brazil, because energetic area has unbelievable mater to any country, and the fact of some juridical norm be against the law and be accepted is very dangerous, it affronts the constitutional principle of the legality e may put in risk the democratic Estate of law, them, regulatory dogmatic must be scientifically knows, and developed, thought and especially there are so many doctrinaires divergences about regulation constitutionality. As a theorist point, the investigation got the Logical nocontradiction principle, according Hans Kelsen and Lourival Vilanova thought, doing a philosophical reflection about the system of positive law, in which there are many antinomies, or conflicts of norms, what include the conflicts of the administrative acts expedited by ANP and the legislation of the brazilian regulatory Estate. For a better understanding and exemplify some perplexities treated by the doctrinaire angle, this work did a lucubration about a possibility of a normative conflict between a ANP resolution and the municipal legislation in a specific case, also, brought several jurisprudences for the brazilians courts of justice, that confirm the empiric existence of normative conflicts among ANP s administrative norms and federal legislation. Finally, concludes observing that the regulation is not a legislative competency delegation to regulatory agencies, is just a new exercise of the administrative function, it is a technical specialization of the public administration, that using this know-how can acting with more efficiency, however the normative power of regulatory agencies must respect the empire of law, so in this terms, the dissertation suggests the ponderation of the constitutionals principles of efficiency and legality how form to harmonizing the democratic legitimate inherent to legal norm supremacy, with the perspective of an efficient economic and institutional development

Licenciamento ambiental em postos de revenda de combustíveis à luz dos princípios constitucionais de defesas do meio ambiente: o caso do município de Natal/RN

This study approaches the question of the administrative procedure of the environmental licensing of ranks of fuel resale, taking as basis a study case of the reality of the City of Natal/RN (Brazil). For in such a way, it was done a retrospect on the evolution of the system of road transport in Brazil, having started to briefly analyze the urbanization process that if after accented in the capitals of the Brazilian States the decade of 1950, relating these subjects with the growth of the sector of fuel resale. After that, it was transferred boarding of the defense of the national environment to the light of ambient principles constitutional. In the sequence, a boarding on the ambient guardianship in the Federal Constitution of 1988 was made, treating basically specifies and on the national urban politics and the national politics of the environment, with its instruments. In the sequence, it was transferred the analysis of the abilities and attributions of the National Advice of the Environment (CONAMA) and its Resolutions, for then only enter in the most important part of this work: an analysis of the environmental licensing of ranks of fuel resale, in the reality of the City of Natal/RN. Before this specific boarding, it was proceeded specifically a survey and communication from the applicable norms to such establishments (Resolutions of the CONAMA and norms of the ABNT), for after that carrying through an geo-ambient characterization of the City of Natal/RN. Finally, a reflection was made on the possibility of magnifying of the state activity, in terms of guarantees for the responsible members for the environmental policy and of administrative efficiency, through the idea of the ambient regulation. For the accomplishment of this study, it was proceeded research in diverse sources such as books, magazines, sites of the Internet, periodicals, thesis and dissertations, among others material, beyond visits the agencies that direct or indirectly act with the ambient defense and as fuel resale, such as Secretariat of Environment and Urbanism of the City of Natal (SEMURB), Institute of Economic Development and Environment of RN (IDEMA), Brazilian Institute of the Environment and the Natural resources You renewed, Executive Management of RN (IBAMA/RN), Public prosecutor's office of the Environment of Natal (Public prosecution service of the RN), National Agency of Oil (ANP) and Union of the Retailing of Derivatives of Oil of the RN, among others. To the end, satiated regulation is observed that although on the substance of the ambient licensing in ranks of fuel resale, also with federal, state and municipal norms, the municipal Public Power is very far from the fulfilment of its institutional functions, in the question environmental policy of these establishments, a time that few are the permitted ranks of resale in the city of Natal/RN

Federealismo e desenvolvimento: cooperação entre os entes federados limites, direitos e deveres

Taking as a starting point the Classic Federalism and theory of the development this Work intend to present some ideas linked about cooperation between federal entities and intergovernmental relations with the main focus the regulation by the Public Consortia aimed at administrative efficiency as a Constitutional Principle of Activity Administrative, against the current provisions of the Federal Constituition of 1988, and infraconstitutional legislation in order to provoke debate and criticism about the principle of cooperation adopted as a paradigm and the capabilities that the state has and what it is, in fact, an efficient management public. It is in the growth of the state, and not a decrease as a minimal state, which aims to discuss its role in promoting the collective interests, and it is therefore essential, as an institution able to intervene on citizens in the search for socially relevant results. Study Federalism and Development on the premise of public consortia and administrative efficiency requires study the course of history as the formation of the Brazilian State, in particular the fact that he is in joint effort between federal agencies - federal, state and municipal - in order to better review the relations established in this plan, in what concerns directly on the issue of division of powers, especially the common or competitors and the subject of the highest relevance for the implementation of an effective federal pact. Finally, the objective of this Work is not only particularize the institute of public consortia, it is intended to demonstrate the deviousness of the concept of efficiency and the division of powers of federal agencies and the constitutional contribution of the institute as a program that should be put in a tone of debate, adequacy of the practice and the law itself

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

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

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

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

O trabalho do gestor escolar: intensificação e implicações administrativas e pedagógicas na gestão da escola

Analyze the work of the school manager who now faces the changes experienced in school management for the last two decades. We propose that there have been changes in school management that have generated a larger number of activities to be developed by managers, causing both the intensification of work and a greater involvement of professionals in the financial-administrative dimension of their work in opposition to the political and pedagogical dimension. This study has a historic-critic approach. That is why we performed semi-structured interviews with school managers of the city schools in Natal RN, BR as a methodological procedure. We also analyzed the literature as well as the documentation relevant to this subject. From the study it was possible to conclude that changes in the field of school management and also teaching have led to an intensification of work of school managers and that such changes have not been followed by corresponding improvement in working conditions and teaching career of these professionals. They, as a rule, are considered by controlling agencies and by the school community as the primarily responsible for the school condition and for creating actions or projects that may improve the institutional objectives and results, including even the maintenance of the institution. Moreover, the growing number of administrative activities represents for obvious reasons extra work for these managers, who, when trying to cope with the growing bureaucratic situations, end up misplacing other political and educational aspects of school work, which may undermine the final purpose of school itself. We stress that we must broaden the discussions on the functions of the school manager, so that this worker can actualize a pedagogical project more committed to an emancipatory nature, despite all the challenge in keeping the school running in often-precarious conditions

Cargos comissionados da administração pública direta do Rio Grande do Norte: análise comparativa entre o perfil profissional dos cargos comissionados com vínculo funcional e sem vínculo funcional

The professional profile of public administrators in Brazil is changing very rapidly in recent years, seeking to meet the principle of efficiency by public agencies at all levels. The admission of the permanent government employee under the Public Administration is by competition, however, commissioned positions are free appointment of managers, which allows effective participation of external experts according to their respective standards and norms. In this context, this dissertation seeks to understand the main characteristics of the profile of the occupants of commissioned positions in Direct Public Administration of the State of Rio Grande do Norte, noting the differences between those with functional link with the have nots. For this study, by data collection and content analysis, a mapping of the administrative structure of the Government of the State of Rio Grande do Norte was done, i.e., the organization of the Executive Branch, which is regulated by the Complementary Law no. 163/1999 and its amendments, which consists of 53 (fifty three) entities, these 29 (twenty nine) are agencies of the direct administration and the remaining 24 (twenty four) comprises the indirect administration. With the collected data, analysis on the number of commissioned positions of each organ of the State of Rio Grande do Norte and information on education, age, length of service, gender and functional link with the direct administration was carried out. Data were available from SEARH in June/2013, when they totaled 58,733 (fifty-eight thousand seven hundred thirty-three) servers, these 2.15% (two point fifteen percent) occupy commissioned positions, corresponding to 1,262 commissioned positions under the Direct Administration, below the national average of 4% (four percent). Of total commissioned positions 64.7% (sixty-four point seven percent) have no functional link with the direct administration, while only 35.3% (thirty -five point three percent) have functional link. It was noticed that there are no clear and specific criteria for the appointments of commissioned positions in the State. They occur freely, as provided in the State Constitution. Another conclusion is the importance of Public Administration define and improve their capacity, competence and efficiency in the delivery of public services. For that it is necessary to invest in their workforce composed of permanent employees and commissioned positions to define the appropriate professional profile