O dever constitucional de eficiência administrativa na jurisprudência do Supremo Tribunal Federal

Leal, Fernando Angelo Ribeiro
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The constitutional duty of administrative efficiency is a standard norm for regulatory activity and other state functions. This study aims to investigate its meanings, norm classifications and argumentative structures for application. 'Meanings' consist in the criteria used to consider that a conduct or measure complies with or violates the duty to efficiency, including consideration of the relationship between the means for the exercise of administrative activities and the results of these activities. The study departs from a diagnostic of conceptual vagueness in the Brazilian legal literature, to investigate the existence of data, in the judicial precedents of the Supreme Court, which enable the development of a concept. The literature contains a plurality of meanings. Also, the aspect of cost-benefit analysis, referred to in literature on economicidade and in the texts on economic analysis of law, suggests the possibility to correlate economicidade to the economic concepts of Kaldor-Hicks efficiency or of wealth maximization. In judicial precedents, there was a great amount of efficiency meanings, indicating that the Supreme Court may have not a clear position in relation to at least some aspects of the the constitutional duty of efficiency, if not in relation to the concept as a whole. This unclear position might explain a necessity that the court prepares, case by case, criteria for considering that certain conduct or measure complies with or violates the duty of efficiency. There was also the occurrence of apparent disagreements between judges, not only with respect to the solution of a concrete case, but also with respect to the definition, in a case, of the meaning of efficiency. However, the conception of the duty of efficiency in a judgment does not necessarily determin the orientation of votes in the Supreme Court. Still, the same case can have different solutions depending on the meaning of efficiency adopted. Furthermore, the judgments that seem to carry out cost-benefit analysis do not often refer to economic efficiency criteria in support. These judgments also rarely reffer to empirical data. As for the norm classification and the argumentative structures for application of the duty of efficiency, the literature refers to incompatible theories that make it difficult to understand unequivocally how this application happens. The Supreme Court, on its turn, makes use of at least three (3) argumentative structures to apply the duty to efficiency: consequentialism, the cost-benefit analysis and ponderation. Concomitant use of cost-benefit analysis and ponderation, however, gives rise to confusion between the duty of efficiency and the standard of proportionality. In this context, the conceptual proposal carried out by this study seeks to make clear the meanings, the norm classifications and the modes of application of the constitutional duty of efficiency, by adopting a single theoretical framework that is consistent with the case law findings. Therefore, this study proposes the classification of the duty of efficiency as sobreprincípio and the duty of economicidade as postulado, with reference to the theoretical conceptions of Humberto Ávila and seeking to avoid incurring in the problems diagnosed in doctrine and in judicial precedents.

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