A regulação contratual dos serviços públicos e o prazo dos contratos de concessão: fixação, prorrogação e extinção

Abstract

Following the well-known crises of the public service, we live today, at least in Brazil, a crisis that affects not its concept, but the way it is provided, especially when delegated to the private sector. Public service concessions have been frequently questioned and harshly criticized, notably because of their contractual nature, characterizedas being limited in time. However, it must be considered that public service concession and permit contracts are essentially a kind of economic activities regulation. Nevertheless, it is not the only one. In fact, the Brazilian Constitution gives the legislature enough flexibility to opt, in the vast majority of cases, for the adoption of this type of so-called performance regulation, which is necessarily established by contract, and may also involve regulatory commissions, depending on specific legal provision. Otherwise it is also possible to opt for a protection regulation turned to private economic activities, based just on police power. It is for the ordinary legislator, therefore, to choose, in each case, whether to use or not the contractual modality of regulation, submitted to a term. There are a number of reasons that may recommend its use, although in certain cases protection regulation may be preferable. It is important, however, that the option be available to the legislator. There may, however, be improvement regarding the way of dealing with contractual terms in the concessions, in order to remove or alleviate the problems that have been encountered. The Brazilian widespread practice of arbitrarily setting deadlines based on customs and ingrained practices should be avoided. The term of the concession contracts is an important element of its economic and financial equation and should be set based on studies that demonstrate their adequacy to the estimated investment volume and the need to maintain just and reasonable prices. In addition, the practice of authorizing “one-time extensions for the same period” violates economic logic and finds no plausible reason. Ideally, the legislator should set a maximum overall deadline, with no quantitative limit on possible extensions, or using broad limitations. The Public Administration should be given the power to decide whether or not the extension should take place and to define the appropriate duration, in each case, for the extension of the term, based on technical studies and available information. Termination of concessions, when extensions are no longer possible or desirable, should involve a contractual termination review whenever unbalanced factors remain unsolved.