A confluência de competências para regulação dos serviços públicos segundo a compreensão dos tribunais superiores

Abstract

This dissertation presents and interprets the results of a jurisprudential research on cases in which there were jurisdictions intersections among Political Entities when public utilities were concerned. As a matter of fact, 1988 Brazilian Constitution has established a Federal State, whose Entities were endowed with material or legislative jurisdiction, either with exclusive or privative character, either with common or concurrent one. Public utility, in each of its species, consists of a category submitted to constitutional jurisdiction partition. This way of jurisdiction partition has arisen the interest in knowing whether it would be possible a certain regulatory jurisdiction confluence in the field of public utilities or whether the political entity which holds a certain species of this activity would control its regulation in all of its aspects. And this has been done because, although the holding of each public utility could be given to one of the political entities, it is not exceptional the hypothesis in which goods which were attributed to a single Federative Entity or to all of them be in conflict when the public utility is carried out. In order to understand this main question, it has been asked whether the expression public utility is something important for defining the jurisdictions which can occur in this activity and if considering the holder for a certain public utility is a decisive element for its regulation. Considering this question, it was researched the jurisdiction measure of the holder of a public utility, if this holding is protected against interferences or if there are juridical goods which let other entities actions be legitimated in this sense. Finally, it was asked whether when deciding the cases, Courts reflect the effect each of their decisions would have in the organization of the public utilities, especially whether they consider the value juridical safety and its impact on national development as something relevant to decide each controversy in this field. To fulfill this task, it has been done a research on the jurisprudence in the electronic sites of Supreme Federal Court and Supreme Justice Court, using key-terms. After the decisions were found and selected, they were arranged and discussed in sections established according to the juridical good which would justify the intervention on the jurisdiction of the public utility holder. In these sections it has been tried to identify, in each concrete case, the decisive elements for the resolution of the court controversy, taking into account the questions and hypothesis of the task. At the end, it was possible to conclude that the Upper Courts take into account the idea of public utility and the identification of its holder, in order to defining de field of regulatory jurisdiction. Moreover, the argumentation of common constitutional jurisdiction exercise is not received as a motive for regulatory interferences, independent of the type of good which is protected. On the other hand, the Upper Courts proscribe any pretention of regulatory interference, without any distinction about direct or indirect incidence over the public utilities. Finally, with few exceptions, decisions founded exclusive on formal laws of constitutional jurisdiction partition prevail