Regulação administrativa à luz da Constituição Federal

Abstract

The subject-matter of this study is the concept of administrative regulation. One has assumed that every technical legal concept, in those systems where the constitutionalism model is adopted, must be compatible with the prevailing constitution. For this reason, from the outset, one has presented elements designed for constitutional interpretation. From said elements it was possible to extract from the original text a limited concept of administrative regulation: the intervention of the Administration in the economic activity exercised by individuals through the direction, inducement or participation, whenever possible in a planned manner, through the enactment of concrete norms, aimed at obtaining economic equality or efficiency, or at regulating the legal assets that justify the special nature of private activities submitted to special regulation. Then, one went on to examine whether Constitutional Amendments nos. 08/95 and 09/95 have changed such concept or not. They derived from a neoliberal policy and constituted an attempt to copy the model adopted by the European Union. One has found that neoliberalism is incompatible with the Constitutional Principles, which caused the intended copy to become unfeasible. The Brazilian Constitution, which instituted a social State, has separated the material activities into two fields: one falling under the very State, and which is related to public services, and another falling under the individuals, and which is related to economic activities. One has studied such division, and from said division the guidelines of the public services and economic activities were established. It was therefore possible to present the major traits of the legal system applicable to administrative regulation. One has concluded that both the regulation of public services and the regulation of state monopolies are somewhat contradictory. From a legal standpoint, the object of regulation is the free exercise of activities. The public services regulating body and the state monopoly regulating body, as mentioned in the amended constitutional text, are not, strictly speaking, regulating entities. They are administrative bodies that exercise control over those persons who have received concessions and permissions from the administration, an activity that is different from regulation