Abstract
PurposeThe purpose of this paper is to debate on how to achieve, in countries that have invested in the North American model of the regulatory state, the greatest efficiency in creating norms for the organization of public and private activities in order to guarantee the autonomy and technical impartiality required for the proper functioning of regulatory agencies.Design/methodology/approachThis paper describes the development of the legal framework regarding regulatory agencies in Brazil. The research was based on bibliographical data, media reports, and the Brazilian Supreme Court decisions.FindingsThe regulation dissemination through regulatory agencies in Brazil has given rise to a series of controversies concerning the limits of their performance and the extent of their technical discretion. According to the findings, it is concluded that these independent agencies should be guided by the following four pillars: (1) the legal rule of fixed-term in office; (2) the principle of lesser control intensity (deference) of the agency acts; (3) the prohibition of contingency of agencies’ budgetary resources; and (4) the prohibition of agency powers suppression. Otherwise, the institutional capacity of agencies will be diminished and their neutral action in technical matters will be compromised.Originality/valueThis paper shows how enhanced autonomy and technical impartiality can be useful for better regulatory governance in other countries, preventing them from suffering from the same problems that have occurred in Brazil.
Highlights
The emergence and diffusion of regulatory agencies in Brazil essentially relates to the federal government’s concern in the mid-1990s with the State’s transformation into a new public management model
We present below the main ideas defended in this paper, which are essentially concerned with preserving the technical impartiality of regulatory agencies considering four structural pillars
In times of better regulation, polycentric regulation, smart regulation, nudging, expropriating regulation, and sustainable administrative regulation, it is recommended that the organization of economic activities and public services be carried out by a self-governing entity with real enhanced autonomy
Summary
The emergence and diffusion of regulatory agencies in Brazil essentially relates to the federal government’s concern in the mid-1990s with the State’s transformation into a new public management model. The project aimed to stay apart from patrimonialism and bureaucracy, leading to profound reforms in the Brazilian legal system, e.g., the Constitutional Amendment 19/1998, the legislation related to the expansion of the Third Sector (Statutes 9,637/98, 9,790/ 99 and 13,019/14), the National Privatization Program (Statute 9,491/97), and the creation of regulatory agencies. These reforms have following points in common: the efforts towards de-bureaucratization, the increase of the State’s efficiency, and the focus on the quality of public services (even those not directly rendered by the State). This episode represents a policy with strong legal repercussions executed in a carefully planned manner
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