Controlador ou supra regulador? Análise empírica de acórdãos proferidos pelo TCU no controle da ANTT

Abstract

This dissertation aims to study how the Federal Audit Court (TCU) exercises external control over core activities of regulatory agencies. The objective is to verify and deepen the findings made in a relevant part of the contemporary legal literature on the subject, which are critical to TCU. According to this literature, the Court would be unduly entering into the assessment of the merit of the agencies’ regulatory choices, and, with that, going beyond simple external control, acting as a second instance regulatory body. To develop investigations on the subject, an empirical study of decisions issued by TCU in the control of a specific federal regulatory agency - the National Land Transportation Agency (ANTT), is carried out, based on 200 (two hundred) cases which decisions were issued between 2002 and 2019. Empirical analyzes are made, both quantitative, with data extracted from all decisions, and qualitative, with detailed analysis of some specific decisions. Based on this analysis, hypotheses extracted from the aforementioned TCU critical literature are tested. In the end, it appears that the phenomenon is more complex than it seems and generates unthinkable effects on the regulation of the land transport sector, with TCU acting selectively to review the merit of ANTT's decisions regarding the exercise of its core activities. Thus, the Court acts as an instance of occasional regulatory redundancy, without a clear provision in the legal system for that purpose.