Perspectivas sobre o abuso de poder regulatório no âmbito das agências reguladoras brasileiras

Abstract

This dissertation explores the misuse of regulatory power according to the objectives and the techniques of economic regulation. It proposes an approach to analyze how State regulation can distort competitiveness in some markets due to flaws in its formulation or implementation. Chapter One reviews the theory of the abuse of power in Administrative Law. Then, it discusses the consequences of this institute for the rulemaking functions of the Regulatory State. It argues that the protection against possible excesses requires a set of clear criteria for the appropriate exercise of powers. Chapter Two explores situations in regulated markets to identify the extent to which governing rules may contribute to triggering anticompetitive effects. The research employs an inductive method because it foresees that observing undesirable results might lead to discovering problems in the primary design of the public intervention. It considers competitiveness as its analytical framework, emphasizing that regulation should balance business interests with political goals, such as social welfare and sustainable economic development. It then studies how certain regulatory practices can promote inefficiencies, such as excessive barriers to entry and discouragement of innovation. Chapter Three presents the state of the art of the Brazilian legal system. It addresses the 4th Clause of Law No. 13,874/2019 (Brazilian Economic Freedom Act). The legal norm tackles the finalistic aspect of administrative action. It establishes the results that the rules issued by regulatory agencies should refrain from producing. The 4th Clause’s sections refer to the economic concepts discussed throughout, and they ought to explain when Brazilian regulatory agencies’ rulemaking appears to be illegitimate. The final chapter also mentions the Brazilian instances to be called upon to verify this regulatory overreaching in particular cases. It refers to “Tribunal de Contas da União,” to the agents of the “Sistema Brasileiro de Defesa da Concorrência,” and to the Judiciary. In this respect, it highlights opportunities for future research about the responses of the mentioned institutions to this type of review. The aim is to contribute to the substantial limits of economic regulation so that the mechanisms do not obstruct the entry of new competitors nor prevent the maintenance of a desirable level of competition.