Acordos administrativos e o TCU: os limites ao controle externo sobre os acordos substitutivos de sanção

Abstract

When analyzed by the TCU the Representation procedure (Rule No. 2121/2017) instituted to investigate possible irregularities in the potential execution of Conduct Adjustment Commitment Terms (TAC) by the National Telecommunications Agency (Anatel) and the company Telefônica Brasil S/A concluded there were no obstacles to the execution of the agreement that dealt with the conversion of fines into investments in the telecommunications sector. In addition to the magnitude of the agreement itself, which provided for an amount exceeding 2 billion reais, there was apprehension regarding the Court's statement regarding administrative agreement’s legality entered into by the Regulatory Agencies to replace sanctions and, a statement to the contrary, could make this consensual practice unfeasible. With the decision, the TCU confirmed the legal validity of the substitutive sanction agreements, however, it imposed conditions on the target activity carried out by Anatel, since, in addition to other determinations, the Court required the presentation of a draft of the TAC before its celebration by the autonomous agency. The fact remains that there is no law or regulation that authorizes prior control over the target activity of the Regulatory Agencies by TCU, especially on the clauses and goals of the agreements aimed at replacing the sanctioning administrative process or the sanction itself, according to its specific regime, as the Court does not have powers to deliberate on matters of a regulatory nature. Therefore, the main objective of this research is to demonstrate the existence of legal limits to the control exercised by the TCU on the substitutive sanction agreements entered by the Regulatory Agencies, in compliance with their legal attributions and in materializing the administrative consensus. With this objective in mind, the statement made by Professor Juliana Bonacorsi de Palma that consensuality should be recognized as an administrative management technique in which the Public Administration negotiates it’s imperative in favor of a more efficient solution to the concrete case was adopted as a theoretical framework. The methodological path followed the analysis of the Constitution of the Republic of 1988, sectorial legislation and regulations, doctrinal contents and the jurisprudence of the TCU itself, especially the leading cases: Judgment No. 2.121/2017, Ruling No. 716/2019 and Ruling No. 548/ 2020, being a theoretical research divided into two chapters, the first aimed at analyzing administrative agreements as a materialization of consensual administrative action and the second chapter analyzing leading cases and the control exercised by TCU over administrative agreements entered into by the Regulatory Agencies and their limits, in view of the exercise of regulatory powers attributed by law to these autonomous bodies of the Brazilian Public Administration.