O princípio da subsidiariedade e a análise de impacto regulatório na lei de liberdade econômica

Abstract

The brazilian Economic Freedom Law, nº 13.874/2019, structured a normative system of fundamental rights and guarantees of economic freedom, constituting as one of its core commands the principle of subsidiarity, provided for in article 2, item III. The principled norm contains an optimization command in the sense of reaching an ideal state of absolute respect for free economic initiative, reserving the State the possibility of exercising its regulatory normative function only in a subsidiary and exceptional situations. By their very nature, legal principles are norms that aim at an ideal state of affairs, without directly describing social behavior. It is for this reason that the scientific challenge is to identify its normative content and the consequences of its command. Therefore, the problem question about this is there a normative content for the principle of subsidiarity provided for in the Economic Freedom Law, and, if so, what is its normative consequence? In this sense, the general objective of the research is to investigate the principle of subsidiarity in State intervention in the exercise of economic activities, and how this becomes a limit for the regulatory State. From this, it was concluded that the normative content of the principle of subsidiarity is outlined under the focus of individual freedom and unfolds on two sides: the passive, expressed by the fundamental guarantee of free enterprise, establishing a negative limit for the State in the exercise of its regulatory power; the active one, which consists in the obligation for the State to intervene in the economic order, when there are insurmountable distortions by economic agents. By virtue of principle, therefore, the State is only entitled to intervene in the exercise of economic activities when the market failure is unavoidable by the agents themselves, with the normative consequence of state action through the adoption of the analysis regulatory impact to minimizing the possible negative effects of the intervention. The methodology adopted for the the investigation was supported by the logical- deductive approach, and as for the research techniques, bibliographic and documentary species were used, based on the study of doctrinal and legislative sources.