Teoria da regulação e controle externo: os tribunais de contas como agentes reguladores da administração pública brasileira

Abstract

The purpose of this dissertation is to demonstrate that the Audit Courts, as agents of execution of the External Control of the Brazilian Public Administration, actually exercise the regulatory activity of the entire Public Power. This is done in a similar way to those carried out by the Regulatory Agencies, as their role in our legal system is, but with a fundamental difference: whereas agencies usually act on specific sectors of the economy and public services exploited by individuals, the Audit Courts are the regulatory agents par excellence of the whole Public Administration. The theoretical substrate of the proposal – as well as applying to a legal system – comes from Economic Science, embodied in the formulation known as Theory of Regulation, and thus proves irrefutable the relevance of the movement called Economic Analysis of Law (EAL), on which a brief contextualization is made. The emphasis of the study is on the comparison of the characterization and powers conferred by the country order to the Regulatory Agencies and the Audit Courts, recognizing in these, even, advantages over those in the performance of their institutional attributions. On the other hand, the inherent risks of regulation and their implications in terms of the effectiveness of the activity itself are similar and are also approached with a proposed bias of shielding of said Courts. Finally, we bring to the debate some perspectives and proposals that aim to give greater effectiveness to the external control as a regulatory activity, which are obligatorily passed by a paradigm change of performance (instrumentalized by the EAL), by the free and totally unimpeded performance of the Public Prosecution Office of Accounts, by adjustments in the modeling of the Audit Courts and by the salutary symbiosis with the social control, in order to enhance the so-called notion of accountability.