O incidente de resolução de demandas repetitivas e a atuação das agências reguladoras: eficácia e impactos jurídicos

Abstract

This master's thesis proposes a study on the impact of the court decisions made in the context of an incident of resolution of repetitive demands (IRDR) on the regulatory agencies, according to § 2o, of art. 985, of the Civil Procedure Code. It is a practical research, with a qualitative approach, having as methodological procedures the bibliographical and documental review. Under the premises of the theory of law, the research had its foundations based on modern legal positivism, having as a theoretical reference the North American author Ronald Dworkin. Regarding the civil procedural aspect, the main authors that served as the basis for the research were Paulo Sarno Braga e Rafael Alexandria de Oliveira, Sofia Orberg Temer e Thomas da Rosa de Bustamante. This paper seeks an investigation into the normative force of judicial precedents, especially the IRDR, given the possibility of the incident projecting its effectiveness to regulatory agencies, according to § 2o of art. 985, of the Civil Procedure Code. The issue is relevant given that IRDR is still a novelty in the legal system, in addition to the fact that the legislator has left gaps in its regulation, raising doubts among law enforcers, with the need to unify the understanding on the subject. To facilitate this research, a case study was used (IRDR n. 0801251-63.2017.8.14.0000 of the Court of Justice of Pará, that questions the fairness of the collection of unregistered consumption of past period by Equatorial (formerly Celpa). Finally, it was found that judicial precedents have normativity, which, however, may vary in effectiveness depending on the type of precedent. In the specific case of the IRDR, although it has binding effectiveness within the Judiciary (horizontal and vertical), by express legal determination (art. 927, III, of the Civil Procedure Code), this effectiveness could not extend to regulatory agencies considering an analysis of law as integrity. Therefore, it is necessary to confer to § 2o of art. 985, of the Civil Procedure Code, an interpretation according to the Constitution and, by corollary, consider its effectiveness persuasive only.