Administração Pública Consensual: análise dos acordos substitutivos da sanção administrativa no âmbito das agências reguladoras federais

Abstract

The search for consensual solutions is a trend that spreads throughout Brazilian law, as it reflects the democratic ideals instituted by the Constitution of the Republic of 1988 and gives greater legitimacy and feasibility to the decisions agreed by this route. Also in Public Administration, the need to overcome the bureaucratic model in favor of the managerial model of administration presupposes the implementation of new mechanisms capable of reducing costs, time and distance between the Public Power and the administered ones. In this process, the consensualisation movement forms part of the current administrative practice as an alternative route to the fulfillment of the public interests pursued by the legal order, especially when they appear under the agreements substitution of sanctions. The option for this consensual way can be carried out whenever it is more apt to avoid, interrupt or repair a conduct harmful to the collective interest than the typical imperative and unilateral sanction. The purpose of this paper is to analyze the legality of substitute agreements, especially their relationship with the principles of efficiency, legality and supremacy and unavailability of the public interest. Nevertheless, the specific study of the modality of a substitute agreement denominated as Term of Adjustment of Conduct (TAC) and its normative treatment given by the Law of Public Civil Action (Law nº 7.347 / 1985) and the regulations of two federal agencies of infrastructure, chosen by reason of the comparison between the number of TACs concluded between them, namely the National Water Transport Agency (ANTAQ) and the National Civil Aviation Agency (ANAC).