Obrigações de serviços públicos no setor privado: sobre a possibilidade jurídica de imposição regulatória de obrigações de serviços públicos a serviços privados abertos à livre iniciativa no Direito brasileiro

Abstract

This thesis aims to argue the legal capability of regulatory imposition of public service obligations on private activities, open to free initiative, considered to be of collective interest (public utilities). We intend to deconstruct a superficially adopted legal premise, which argues that duties known as "public service obligations" can only exist in the performance of a public service, that is, in the existence of a state domain activity. In spite of several regulatory innovations and paradigmatic changes conferred to the regulatory state model, the legal understanding assumed by the administrative doctrine, evidently inspired by the classic French notion of public service, is guided by the understanding that the typical legal regime for the performance of a public service (also referred by the public law commentators as “public service obligations” or “public service principles”) would be inseparable from the existence of a “public service”, that is, an state owner activity. Using primary and secondary data, and four distinct methodological lines (legal-historical; comparative; legal-theoretical; and legal exploratory), this thesis proposes to deconstruct the illusion of the inseparability of public service obligations with the state domain of the activity, bringing 3 (three) macro conclusions: (i) first, it seeks to demonstrate the artificiality of the French legal construction of the typical public service legal regime; (ii) second, it is intended to defend the instrumental view of the public service, which is guided by the idea that the typical legal regime of the public service is not a consequence of the transformation of an activity as a “public service”, but the transformation of an activity into the public domain is a state prerogative to promotion and guarantee this legal regime that identifies with the activity, regardless of who the provider is; (iii) third, it is intended to demonstrate the illusion in the identification of police power as a limit for the exercise of the regulatory function by the State, either in view of the syllogistic construction, which conceived and reproduced the legal concept of police power as “interventional maximum”, as well as in view of the evolution of the State's interventional role, which revealed new frontiers for the conditioning of individual freedom in favor of the collective interest. With this set of arguments, it is understood that there are no legal elements that support the premise of the inseparability of public service obligations, such as obligations of regularity, continuity, efficiency, security, updated services, generality, transparency, courtesy in its provision and reasonableness of prices, among others, with the public domain of the activity. We believe that the recognition of the legal possibility of imposing public service obligations on economic services of general interest, open to free initiative, represents, in our view, a legal eclecticism that also resolves and harmonizes the antagonism between theoretical efforts that seek to defend the policy of privatization and liberalization of important public services, and those that are guided by the mandatory state presence to safeguard the competence of the provision of these activities, in accordance with the citizen's interest.