Eficácia horizontal dos direitos fundamentais de prestação: considerações e peculiaridades

Abstract

Fundamental rights emerge to impose limits on state oversights. However, in the current scenario, the State is no longer the only violator of these rights, the constraint may also come from non-state entities: financial market, health plans, companies, civil society, family, etc. Moreover, with the return of liberal ideas (through neoliberalism), the State distances itself from the direct execution of the public service and becomes acting as a regulating agent creating norms to be obeyed by the private provider. On this, the question arises about the possibility of requiring the private entity to become ao provider like the State. Although the horizontal efficacy of the rights of defense - those related to freedom - is widely accepted, there is little in the doctrine of its scope in relation to the rights to benefit - concerning social demands, since the requirement of a positive conduct of the particular is more controversial. From this, the present study intends to deal with the peculiarities related to the fundamental rights of provision and their application to private relations, considering legal certainty and private autonomy. The analysis is performed through bibliographical and documentary research and a qualitative and dialectical method. The research will include a synthesis of the existing doctrine on the horizontal effectiveness of individual fundamental rights, dealing with issues relevant to the consolidation of this theory, and later on the linking of individuals also with fundamental rights of provision (based on the trialist classification of Georg Jellinek). In the end, it is intended to analyze the economic effects and risks that can arise from the violation of legal certainty. In this way, there will be brief reflections on the creation of criteria to make possible and reliable the attachment of individuals also to the fundamental rights of provision.