The judicial activism and the new legal regulatory framework for regulatory agencies
Thiago Carvalho Fonseca, lawyer at Tortoro, Madureira & Ragazzi
On June 25, 2019, Law No. 13.848 was signed into law, which aims at the management, organization, decision-making process and social control of regulatory agencies. However, it is not difficult to be faced with the direct interference of the Judicial Branch in the technical aspect of regulated markets.
This activism of the Courts is unjustifiable, since even the Law of Introduction to the Law of Introduction to the Norms of Brazilian Law (LINDB), has rules aimed at public law that highlight the importance of analyzing the impact of the decisions in the administrative, controlling and judicial spheres.
For this reason, Articles 4 and 5 of Law No. 13.848/2019 restate the regularity of the decision-making process of regulatory agencies with the inclusion of some constitutional principles, namely: proportionality, reasonability and motivation. Furthermore, it also denotes the concern about the regulatory power, considering the systemic and economic problems that definitions by these specific agencies may cause. Thus, article 6 establishes a Regulatory Impact Analysis (RIA) on amendments to normative acts of general interest to economic agents, consumers or users of the services provided.
Still on the topic, It is worth mentioning the fact that the regulatory decision-making process has a collegiate character and the publicity of the deliberative meetings as well, which are public and recorded in electronic media.
Based on such these premises, article 9 of the regulations describes that, prior to the decision being made, the drafts and proposals for amendments to normative acts of general interest shall also be subject to public consultation. As with the RIA, it is a further obligation to provide greater legal certainty and operational efficiency to regulatory agencies.
On the other hand, article 10 addresses the possibility of calling a public hearing for the formation of a trial and deliberation on a matter considered relevant. From this standpoint, and with the due prominence, this governance practice is already followed in the national electrical sector – the relevant content is provided for in paragraph 3 of article 4 of Law no. 9.427/1996.
In view of this scenario, despite the advances achieved by this new legal framework of the regulatory agencies, the judicial activism is an issue of concern, specifically about interference in standards issued by regulatory agencies. After all, the decision-making process of these agencies does not seem to be discretionary, much less arbitrary, since it is subject to the basic rules and principles of the Democratic State of Law and the effective participation of society, whether through Consultations or Public Hearings.
Thus, when urged to express themselves, if the Judiciary Branch does not act with caution, strictly within the limits of legality control and addressing the administrative merit of the decisions, unfortunately, Law no. 13.848/2019 shall not represent the expected evolution for the decision-making process of agencies and for the regulated markets.
Resumé – Thiago Carvalho Fonseca
Areas of Practice
Administrative, Public, Regulatory, and Energy Law
- Graduate Degree in Civil Procedural Law – Faculdade de Direito de Ribeirão Preto da Universidade de São Paulo (FDRP/USP/SSSP), 2016
- Graduate Degree in Administrative Law – Faculdade de Direito de Ribeirão Preto da Universidade de São Paulo – to be completed in 2020
- Bachelor of Law – Faculdade de Direito de Franca (FDF/SP), 2012