Recuperação judicial das concessionárias de serviços públicos essenciais: legitimação postulatória e adequação do procedimento para concretização da continuidade do serviço

Abstract

This doctoral thesis examines the theoretical basis for the judicial reorganization of essential public service concessionaires—business entities that operate in sectors of undeniable social relevance, such as transportation, electricity, telecommunications, and sanitation, by delegation of the State. The study begins with the premise that these companies' financial distress directly affects society as a whole and jeopardizes the continuity of indispensable services, thereby attributing heightened public interest to their restructuring. From historical and legal perspectives, the research traces the evolution of enterprise and insolvency legislation up to its application to concessionaires. It also examines the normative framework of concession contracts. The methodology combines a legal-dogmatic approach with an empirical analysis of approximately twenty real cases to identify common causes of indebtedness, the impacts of crises, and the adopted solutions. Based on this foundation, the dissertation analyzes whether concessionaires are eligible to file for judicial reorganization. It addresses doctrinal, jurisprudential, and legislative debates, particularly the controversy surrounding the statutory prohibition of such filings by energy sector companies. Furthermore, the dissertation assesses the appropriateness of judicial reorganization proceedings for essential public service concessionaires. This assessment is conducted from two complementary perspectives. First, reorganization is examined as a protective mechanism to ensure the continuity of essential public services. Second, its suitability is evaluated through the lens of creditors' contract theory. This theory frames judicial reorganization as a coordination device that reconciles divergent interests and overcomes collective action problems in insolvency scenarios. Otherwise, these scenarios would undermine the efficient allocation of concessionaire assets. The dissertation concludes that, when interpreted in harmony with the Concessions Law, judicial reorganization is the most suitable instrument for reconciling the preservation of concessionaire enterprises, the continuity of essential public services, and the public interest. Applying the creditors’ contract theory provides a normative understanding of judicial reorganization as a collective and efficient agreement capable of legitimizing and structuring the restructuring of these companies.