Administrative Law II: Public Services and Foundations

Posted on Oct 26, 2024 in Law & Jurisprudence

1. Public Services

Concept of Public Services

In a broad sense, all activities could be considered public, as argued by the French classical school. However, Gastin Jeze and Leon Duguit countered this, suggesting the sole or primary reason for the activity is the key distinction. Thus, legislative and judicial activities, as well as administrative tasks like policing, economic planning, and social order promotion, cannot be easily categorized.

In a stricter sense, public services involve legal activities that:

  • Establish, maintain, and improve legal activities and memberships.
  • Ensure rights and the exercise of fundamental human rights within a democratic state.

Marçal Justen Filho’s Definition

A public service is a public administrative activity that concretely satisfies individual or trans-individual needs, tangible or intangible, directly linked to a fundamental right for undetermined persons and run under public law.

Public Services in the Federal Constitution

See Articles 21, 25, and 30, and specific provisions in Articles 194, 196, 200, 201, 203, 205, 208, 211, and 223. Public services are also implicitly derived from economic exploitation (Article 173).

Federal Public Services (Article 21)

  • X – Postal service
  • XI – Telecommunications services
  • XII (a) – Radio broadcasting and sound and images
  • XII (b) – Electricity, energy, and watercourse usage
  • XII (c) – Aviation, aerospace, and port infrastructure
  • XII (d) – Rail and water transport between Brazilian ports and national borders, or across state/territory boundaries
  • XII (e) – Interstate and international passenger transport
  • XII (f) – Seaports, river ports, and lake ports
  • XXIII – Core services of any kind

Categories of Public Services in the Constitution

  • a) Services exclusively provided by the state (e.g., postal service and national airmail – Art. 21, X).
  • b) Mandatory services for the state, with concessions granted to third parties (e.g., radio and television broadcasting – Art. 223, emphasizing the principle of complementarity).
  • c) Services required by the state, but not exclusively (e.g., education, health, social security, social welfare, and radio and television broadcasting).
  • d) Services not required by the state, but encouraged through grants or permits to third parties (all other public services, especially those in Art. 21, XI).

2. Legal Principles of Public Services

Principles according to Hely Lopes Meirelles and Maria Sylvia Zanella Di Pietro:

  1. Overall
  2. Continuity
  3. Regularity
  4. Efficiency
  5. Present
  6. Security
  7. Courtesy
  8. Modesty

These principles contribute to the concept of “adequate service” (Art. 175, § single IV of the Constitution; Law 8987/1995, Art. 6, § 1; and Consumer Protection Code – Law 8078/1990, Art. 6, X).

Principles according to Celso Antônio Bandeira de Mello:

  1. The state’s duty to provide services directly or indirectly.
  2. Supremacy of public interest.
  3. Adaptability and modernization.
  4. Universality (equal access for all).
  5. Impersonality (no discrimination).
  6. Continuity (uninterrupted operation).
  7. Transparency (public awareness).
  8. Motivation (justified decisions).
  9. Reasonable tariffs.
  10. Internal and external control.

3. Methods of Providing Public Services (Diogo de Figueiredo Moreira Neto)

Direct Provision

Preferred by politicians, implemented by all levels of government. Services in Art. 21 are constitutionally mandated and don’t require specific laws, only government regulation. Implicitly accepted services require specific laws.

Indirect Provision

Delegation to public or private entities created by law.

Five Methods of Indirect Provision:
  1. Local Government: Declining due to bureaucracy.
  2. Parastatal: Delegation to private legal entities (e.g., public companies, foundations). Common in the 20th century.
  3. Contract: Contracting with private entities (e.g., concessions, permits, outsourcing).
  4. Complex: Multiple entities involved, including at least one with administrative competence (e.g., agreements, consortia).
  5. Unilateral: Government delegation to qualified private individuals (e.g., authorization of public service – Art. 21, XI and XII – precarious and revocable).

4. Foundations

Concept

Foundations are legal entities with assets dedicated to a social purpose (Caio Mário da Silva).

Legal Aspects

  • Private Foundations: Governed by the Civil Code (Articles 62-69) and Law 6515/73.
  • Public Foundations: Created by specific law (Art. 37, XIX of the Constitution).

Constitution of Foundations

  • Private: Requires Ministry of Public Affairs approval, registration of charter and bylaws.
  • Public: Established by government will through specific law.

Bylaws and Statutes

Bylaws establish general rules, while statutes provide regulatory details.

Foundations and Public Authorities

Public authorities can create public foundations (foundational authorities) or private foundations (parastatal foundations). The creation of private foundations for public services is debated (Celso Antônio Bandeira de Mello criticizes Amendment 19/98).