Estudo empírico sobre melhorias promovidas pela lei n. 13.506/2017 à condução de processos administrativos sancionadores pela Banco Central do Brasil

Abstract

This dissertation presents the results of research conducted to evaluate whether Law No. 13.506/2017, by establishing a list of infractions subject to sanctions, introducing more objective criteria for sanction dosimetry, and implementing consensual mechanisms for conflict resolution, has increased the level of legal certainty in administrative sanctioning procedures conducted by the Central Bank of Brazil (BCB) and reduced litigation with the entities it supervises. The evaluation was based on normative analysis, literature review, and empirical research with both quantitative and qualitative approaches to decisions issued by the Administrative Sanctioning Process Decision Committee (COPAS) in 2022 and to terms of commitment (TCs) signed by the BCB in the same year. In addition, jurisprudence developed by the Judiciary before and after the enactment of Law No. 13,506/2017 was analyzed, focusing on cases in which sanctions imposed by the BCB were annulled—particularly those based on the lack of legal typification of the conduct. Prior to the empirical analysis, the dissertation presented the legal foundations of Public Administration’s actions through its police power and the limitations imposed in favor of the public interest. It also addressed the development of Administrative Sanctioning Law and key concepts such as administrative sanctions and infractions, along with the rules and principles governing the sanctioning procedure conducted by the BCB and its normative evolution. A comparison was drawn between the previous framework under Law No. 4.595/1964 and the innovations introduced by Law No. 13.506/2017, particularly concerning the typification of infractions, sanction dosimetry, and consensual solutions for regulatory disputes. The analysis found that the new legislation appears to have provided a procedural and normative framework capable of reducing litigation in the imposition of sanctions by the BCB. Since 2012, in the Regional Federal Courts of the 2nd and 4th Circuits, 48 judgments were identified that annulled decisions issued by the BCB under Law No. 4,595/1964 due to the lack of legal typification of the conduct.By contrast, no judicial proceedings were found challenging decisions issued under Law No. 13,506/2017 on the same grounds. This outcome is likely linked to the clearer definition of infractions under the new law, as well as to the statutory authority granted to the National Monetary Council (CMN) and the BCB to define infractions through administrative regulations. Another significant finding was the increase in transparency and proportionality in the application of sanctions. In 21 of the 43 cases decided by COPAS in 2022 under the new dosimetry regime of Law No. 13,506/2017, detailed reasoning was provided for each phase of the sanctioning process, including the factors considered by the decision-maker, the method for calculating and establishing the base penalty, identification of aggravating and mitigating factors, and the limitation on the total amount of imposed penalties. Finally, in the 12 cases in which TC proposals were accepted in 2022, either the infraction was ceased or a formal obligation to cease it was assumed, alongside the imposition of reparatory measures for the clients harmed by the irregular conduct. These measures may contribute to the prevention of future infractions. Based on the cases analyzed in the selected sample, it can be concluded that Law No. 13,506/2017 enabled the BCB’s sanctioning practices to be conducted with a higher degree of legal certainty. In cases involving TCs, the agreed reparations may have a deterrent effect comparable to that of pecuniary penalties applied in formal sanctioning procedures. Future studies may explore whether these results are maintained in broader samples, whether the observed proportionality persists despite the lack of standardized penalties, and whether TCs exhibit greater transparency regarding the reasons for their execution and the underlying facts.