Entre atos e normas: Um dilema do direito regulatório

Abstract

The dissertation identifies that a relevant discussion in economic regulation is whether it is possible to specify regulatory policy which is vaguely defined in the statutes through adjudication, or if regulatory intervention in the private activities of the regulated entities would depend on the prior issuance of administrative regulations containing comprehensive rules that specify the expected conduct and the restrictions that may be imposed (rulemaking). This discussion touches on fundamental principles and values of public law, such as the Rule of Law, legal certainty, and equality. The research question that guides the work is to define whether, and under what circumstances, it is possible to demand from the Administration the promulgation of general and abstract legal rules, rather than offering case-by-case solutions to regulatory problems. I argue that regulation involves a preference for rules, so that the specification of sectoral regulatory policy through adjudication will be allowed so long as certain specific and duly justified circumstances are present. It is also argued that the identification of a preference for rules does not justify intense judicial scrutiny over the decision to regulate through rulemaking or adjudication, although it is possible to require agencies to provide reasons for regulating through adjudication. The research identified a trade-off between regulating through rules and orders, finding that case-by-case regulation may, depending on the circumstances, be more efficient or effective than rulemaking, particularly in contexts of technological innovation and of regulatory governance models that require flexibility. This dilemma, although ubiquitous in administrative law, has different colors in economic regulation, where legal certainty is a fundamental value and serves as a justification for regulation itself. In Brazilian law, an analysis of constitutional principles and the relevant statutory law reveals a preference for norms. Even in Sanctioning Administrative Law, one can speak of a preference for norms, albeit with greater intensity. Finally, the study examined the effects of this preference for norms, concluding that judicial review of the regulatory procedural choice should be deferential. A promising review strategy is the requirement of providing justification for regulating though adjudications without pre-existing norms on the subject, an obligation which has standing in statutory law. In addition to the justification requirement, another effect of the preference for norms is the obligation to adopt measures to ensure that, when regulatory policy is specified through adjudication, a minimum level of protection is provided for the principles of the Rule of Law, legal certainty, legality, and participatory democracy. These measures include adherence to precedents, ensuring participation in adjudicatory procedures, drafting guidelines, directives, and interpretative acts, and following duties of notice and non-surprise.