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

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

A intervenção estatal no domínio econômico privado através da nova lei de recuperação de empresas e falências (lei 11.101/05)

Analysis of the elements of the Constitutional Order of the letter 1988 politics, with emphasis in the principles of this, a study on the intervention of the State in the private initiative by means of the Law of Recovery of Companies and Bankruptcies (law 11.101/05). New enterprise vision is admitted, over all in the interdependence between economic and social factors. Study on the globalization and the interdependence of economic and legal sciences in the construction of a legal optics in the search for the economic and social development, with the recognition of the interference of the Economy in the Right and its uneven importance. Still, we delineate the state intervention in the economic scope, of company and in the judicial recovery, as well as the consequences of such intervention in the involved credits in the judicial recovery and patrimony of the debtor in recovery. For such task, the elements of the Judicial Recovery, its principles and adequacy of these to the related ones in the chapter had been analyzed that turns on the national economic Order, describing the formal procedure for concession of the benefit of the Judicial Recovery and the principles in existing them. The forms of intervention of the State in the private economy were not disrespected, relating its direct and indirect performance as half of preservation of interests writings in the constitutional scope as public interest and preservation of the National economic Order. The regulating agencies as of direct state intervention were half not disrespected of the study for the relevance of the subject. It is revised national bibliography with incursions in French, Portuguese and North American comparative jurisprudence. One contributes in the aspect of the paper of the Judiciary Power in the protection of the companies in crisis and the social and economic impacts, over all in relation to the rights of the worked ones, credit and enterprise

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

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 princípio da eficiência administrativa na regulação da prestação do serviço de voz sobre internet - VoIP

The present work aims to demonstrate the link of the principle of efficiency - as expressed in the Constitution of 1988, by Constitutional Amendment No. 19 - with regulatory agencies, more specifically the ANATEL (National Telecommunications Agency). It also includes this principle’s importance to regulation - to monitor and manage public services - as well as when an activity will be considered efficient, keeping in mind that agencies are subjected to other principles of public administration. The increasing use of telephony has enabled further development of technologies that provide improvements in the provision of this service. The VoIP (Voice over IP), is nothing more than a technological breakthrough that directly targets the providers of conventional telephone service, both by modifying the business working for a long time with the same technology as the amount of new competitors’ dispute on market share. It also analyses the difficulty of understanding and definition of what is VoIP telephony, its growth and the threats that the traditional and mostly which is ANATEL’s role concerning this telephony technology. As regulator of the telecommunications service, ANATEL not yet regulated the voice telephony service using the IP protocol. What looks over the years is that ANATEL exercise its regulatory function to provide better conditions for competition among providers of VoIP and traditional telephone companies, obviously some difficulties are expected, given that VoIP is a technology that provides two services, through conventional telephony and using the internet.

Desenvolvimento de métodos para quantificação de benzilpenicilina em medicamentos veterinários e seus resíduos em leite bovino e caprino por UFLC-DAD

The Benzylpenicillin (PENG) have been as the active ingredient in veterinary medicinal products, to increase productivity, due to its therapeutic properties. However, one of unfortunate quality and used indiscriminately, resulting in residues in foods exposed to human consumption, especially in milk that is essential to the diet of children and the ageing. Thus, it is indispensable to develop new methods able to detect this waste food, at levels that are toxic to human health, in order to contribute to the food security of consumers and collaborate with regulatory agencies in an efficient inspection. In this work, were developed methods for the quality control of veterinary drugs based on Benzylpenicillin (PENG) that are used in livestock production. Additionally, were validated methodologies for identifying and quantifying the antibiotic residues in milk bovine and caprine. For this, the analytical control was performed two steps. At first, the groups of samples of medicinal products I, II, III, IV and V, individually, were characterized by medium infrared spectroscopy (4000 – 600 cm-1). Besides, 37 samples, distributed in these groups, were analyzed by spectroscopy in the ultraviolet and near infrared region (UV VIS NIR) and Ultra Fast Liquid Chromatograph coupled to linear arrangement photodiodes (UFLC-DAD). The results of the characterization indicated similarities, between PENG and reference standard samples, primarily in regions of 1818 to 1724 cm-1 of ν C=O that shows primary amides features of PENG. The method by UFLC-DAD presented R on 0.9991. LOD of 7.384 × 10-4 μg mL-1. LOQ of 2.049 × 10-3 μg mL-1. The analysis shows that 62.16% the samples presented purity ≥ 81.21%. The method by spectroscopy in the UV VIS NIR presented medium error ≤ 8 – 12% between the reference and experimental criteria, indicating is a secure choice for rapid determination of PENG. In the second stage, was acquiring a method for the extraction and isolation of PENG by the addition of buffer McIlvaine, used for precipitation of proteins total, at pH 4.0. The results showed excellent recovery values PENG, being close to 92.05% of samples of bovine milk (method 1). While samples of milk goats (method 2) the recovery of PENG were 95.83%. The methods for UFLC-DAD have been validated in accordance with the maximum residue limit (LMR) of 4 μg Kg-1 standardized by CAC/GL16. Validation of the method 1 indicated R by 0.9975. LOD of 7.246 × 10-4 μg mL-1. LOQ de 2.196 × 10-3 μg mL-1. The application of the method 1 showed that 12% the samples presented concentration of residues of PENG > LMR. The method 2 indicated R by 0.9995. LOD 8.251 × 10-4 μg mL-1. LOQ de 2.5270 × 10-3 μg mL-1. The application of the method showed that 15% of the samples were above the tolerable. The comparative analysis between the methods pointed better validation for LCP samples, because the reduction of the matrix effect, on this account the tcalculs < ttable, caused by the increase of recovery of the PENG. In this mode, all the operations developed to deliver simplicity, speed, selectivity, reduced analysis time and reagent use and toxic solvents, particularly if compared to the established methodologies.

Desenvolvimento de métodos para quantificação de benzilpenicilina em medicamentos veterinários e seus resíduos em leite bovino e caprino por UFLC-DAD

The Benzylpenicillin (PENG) have been as the active ingredient in veterinary medicinal products, to increase productivity, due to its therapeutic properties. However, one of unfortunate quality and used indiscriminately, resulting in residues in foods exposed to human consumption, especially in milk that is essential to the diet of children and the ageing. Thus, it is indispensable to develop new methods able to detect this waste food, at levels that are toxic to human health, in order to contribute to the food security of consumers and collaborate with regulatory agencies in an efficient inspection. In this work, were developed methods for the quality control of veterinary drugs based on Benzylpenicillin (PENG) that are used in livestock production. Additionally, were validated methodologies for identifying and quantifying the antibiotic residues in milk bovine and caprine. For this, the analytical control was performed two steps. At first, the groups of samples of medicinal products I, II, III, IV and V, individually, were characterized by medium infrared spectroscopy (4000 – 600 cm-1). Besides, 37 samples, distributed in these groups, were analyzed by spectroscopy in the ultraviolet and near infrared region (UV VIS NIR) and Ultra Fast Liquid Chromatograph coupled to linear arrangement photodiodes (UFLC-DAD). The results of the characterization indicated similarities, between PENG and reference standard samples, primarily in regions of 1818 to 1724 cm-1 of ν C=O that shows primary amides features of PENG. The method by UFLC-DAD presented R on 0.9991. LOD of 7.384 × 10-4 μg mL-1. LOQ of 2.049 × 10-3 μg mL-1. The analysis shows that 62.16% the samples presented purity ≥ 81.21%. The method by spectroscopy in the UV VIS NIR presented medium error ≤ 8 – 12% between the reference and experimental criteria, indicating is a secure choice for rapid determination of PENG. In the second stage, was acquiring a method for the extraction and isolation of PENG by the addition of buffer McIlvaine, used for precipitation of proteins total, at pH 4.0. The results showed excellent recovery values PENG, being close to 92.05% of samples of bovine milk (method 1). While samples of milk goats (method 2) the recovery of PENG were 95.83%. The methods for UFLC-DAD have been validated in accordance with the maximum residue limit (LMR) of 4 μg Kg-1 standardized by CAC/GL16. Validation of the method 1 indicated R by 0.9975. LOD of 7.246 × 10-4 μg mL-1. LOQ de 2.196 × 10-3 μg mL-1. The application of the method 1 showed that 12% the samples presented concentration of residues of PENG > LMR. The method 2 indicated R by 0.9995. LOD 8.251 × 10-4 μg mL-1. LOQ de 2.5270 × 10-3 μg mL-1. The application of the method showed that 15% of the samples were above the tolerable. The comparative analysis between the methods pointed better validation for LCP samples, because the reduction of the matrix effect, on this account the tcalculs < ttable, caused by the increase of recovery of the PENG. In this mode, all the operations developed to deliver simplicity, speed, selectivity, reduced analysis time and reagent use and toxic solvents, particularly if compared to the established methodologies.

Síndrome de burnout e autoeficácia: um estudo com profissionais de enfermagem de hospitais privados de Natal/rn

This research verifies the influence of the self-efficacy level on burnout syndrome incidence in relation to nursing professionals from private hospitals located in the Municipality of Natal, State of Rio Grande do Norte. The nature of the research was descriptive, and the used data analysis method was quantitative which was developed through SPSS computational package, version 17.0. The used instrument for the investigation was Maslach-Burnout Inventory (MBI), and the General Perceived Self-efficacy Scale (GPSES) was applied to a sample formed from 230 nursing professionals. The statistic techniques to data analysis were: frequency analysis; factor analysis; Cronbach.s alpha; Kaiser-Meyer-Olkin test (KMO); Bartlett efericity test; percentual analysis; Spearman rank correlation analysis; and simple regression. The achieved factors from factor analysis of MBI were the same, taking into account the dimensions which Maslach initially suggested to the instrument (emotional exhaustion, lack of personal realization, and depersonalization). However, one highlights that the low internal consistence of the depersonalization dimension can occur from people.s difficulty (caused by cultural aspects) of assuming this attitude in their work environment. Through GSE, it was achieved a factor which confirmed the unidimensionality showed by the author of the instrument. In relation to the syndrome incidence, it was verified that about 50% of the researched sample presented burnout syndrome evidence. Referring to self-efficacy level, about 65% of the researched sample presented low level of self-efficacy, what can be explained by the work characteristics of these professionals. In relation to the self-efficacy influence on the Burnout syndrome, it was verified that self-efficacy can be one of the aspects which influences occupational stress chronification (burnout), mainly to the personal realization dimension. Therefore, the researched hospital organizations need reflect about their attitudes in respect to their professionals, since the numbers showed a dangerous tendency regarding a predisposition to burnout syndrome of their staff, what implies not only a significant amount of individuals who can present high levels of emotional exhaustion, lack of personal realization, and depersonalization, but also the fact that this group presents low level of self-efficacy

Estratégia ambiental e agências de viagens e turismo :um estudo sobre a importância de práticas ambientais na escolha de um pacote turístico

The objective of the work was to investigate, from the vision of travel agents, the importance of environmental practices as a decision factor in the purchase of a tourist package. For in such a way, it was established as target population, the travel agencies and tourism linked to he Brazilian Association of Travel agencies ABAV, hearing the Brazilian travel agents that exerted the function in Natal, city in 2005. The election of the sample was accomplished using the simple random sampling technique. The amount of agents effectively searched was of 150 agents being distributed 150 questionnaires, with closed and opened questions, applied during the month of November in 2005. Results showed great variability of interviewed answers in that if it relates for sale of package tourist where the customer demonstrates enviromental concern with the environmental quality. Through multiple regression analyses, it was environmental concern with the environmental quality of the place and the perception of the practical importance of the existence environmental practices in the place as important factor in the decision of tourist package purchase

Caminhos para a universalização dos serviços de água e esgotos no Brasil: a atuação das entidades reguladoras para indução da eficiência dos prestadores de serviços

The deficit of water and sewerage services is a historic problem in Brazil. The introduction of a new regulatory framework, in 2007, presented ways intending to overcome these deficits, among them, the providers efficiency improvement. This thesis aims to analyze the regulators performance regarding its ability to induce the efficiency of the Brazilian water and sewerage services providers. To this end, an analytical approach based on a sequential explanatory strategy was used, and it consists of three steps. In the first step, the Data Envelopment Analysis ( DEA ) was used to measure the providers efficiency in 2006 and 2011. The results show that the average efficiency may be considered high; however significant inefficiencies among the 29 analyzed providers were detected. The ones in the Southeast region showed better performance level and Northeast had the lowest. The local and the private providers were more efficient on average. In 2006 and 2011 the average performance was higher among non-regulated providers. In 2006 the group regulated by local agencies had the best average performance, in 2011, the best performance was the group regulated by the consortium agencies. To analyse the second step was used the Malmquist Index, it pointed that the productivity between 2006 and 2011 dropped. The analysis through decomposing Malmquist Index showed a shift of technical efficiency frontier to a lower level, however was detected a small provider s advance towards the frontier. Only the Midwest region recorded progress in overall productivity. The deterioration in the total factor productivity was higher among regional providers but the local ones and the private agencies moved quickly to the frontier level. The providers regulated from 2007 showed less decrease on the total productivity and the results of the catch up effect were more meaningful. In the last step, the regulators standardization activity analyses noted that there are agencies that had not issued rules until 2011. The most standards topics discussed in the issued rules were the tariff adjustments and the setting of general conditions for the provision and use of services; in another hand, the least covered topics were new technologies incentive and the introduction of efficiency-inducing regulatory mechanisms and productivity gains for price reviews. Regulators created from 2007 were more active proportionately. Even with the advent of the regulatory framework and the creation of new regulatory bodies, the evidence points to a reality in which the actions of these agencies have not been ensuring that providers of water and sewage, regulated by them, has achieved better performance. The non- achievement of regulatory goals can be explained by the incipient level of performance of the Brazilian regulatory authorities, which should be strengthened because of its potential contribution to the Brazilian basic sanitation department

O Serviço Social nas operadoras de planos privados de assistência à saúde: demandas, atribuições e respostas profissionais

The present study deals with the exercise of professional social workers in private health care plans registered with the Regional Council of Medicine/RN, in the city of Natal/RN, with regards to the demands/tasks, work conditions, and the professional response, given the climate of restructuring the capital. The set of socio-historical transformations, as a results of the dynamic capitalist, is a process of new configurations in relation to state and society that interfere directly in relation to working conditions, social rights historically won by workers. In this context, the operator of health plans arises as a possibilities to provide services in health, through the logic of the market, in which the subjects of law, become consumers contributing to the displacement of the responsibilities of the State. Obligating workers to lessen the burden with the reproduction of their workforce. This involves changing societal context for social service, since it is one of the professions that are active in terms of the immediate social issue, and come as part of the collective worker. From qualitative research based on a theoretical and methodological perspective and critical dialectics, it was possible to unveil some features and trends of the exercise of(a) social operators in private health care plans. The survey results indicated that : a) the demands and duties for certain social service, are associated with the redevelopment of the capital, whose requirements and responsibilities professionals have with their needs, particularly the guarantee of profit, services rendered; b) in the conditions of work there is a trend of insecurity uncertainty and dismantling of professionals; c) the answers professionals suffer the limits and contradictions present in the daily training, mainly depending one the characteristics of management and operation of the operators, which has professional relative autonomy

Interpretando direitos e incorporando novas agências: o reconhecimento da Terra Indígena Las Casas, PA, e as perspectivas caiapó sobre esse processo

O artigo trata do processo de retomada e reconhecimento da Terra Indígena Las Casas, PA, de ocupação tradicional dos índios caiapó. O intuito é mostrar que os Caiapó interpretam esse evento, que é também jurídico e administrativo, a partir de suas próprias ló- gicas culturais, a ele incorporando novas agências e visões de mundo