Discussão sobre a necessidade de autorização legislativa para concessões de serviços públicos

Abstract

The purpose of this work is to discuss, in the light of the Brazilian constitutional order, if the concession of public services (intended by the Executive branch) has to be preceded by the approval of Legislative branch (formalized by the enactment of an authorizing law). In this way, after a critical analysis of the main reasons mentioned by legal doctrine and inserted in Brazilian higher Courts decisions, this Essay reaches two main conclusions. First, in accordance with the Brazilian Constitution, the Executive branch doesn’t need a previous authorization from the Legislative branch to sign a concession contract with a private firm. Second, the demand of such approval by any federal, state or municipality law would be unconstitutional – independently of the nature of the public service granted and the federative level of the granting authority.