By Fernando Villela de Andrade Vianna
Authorization as a legally valid instrument for the delegation of public service is a topic that has begun to provoke deeper reflections in recent years, mainly due to legislative changes that have expressly provided for this possibility. One can cite, as an example, Law 12,996/2014, which modified Law 10,233/2001 and provided for the authorization for the delegation of the regular public service of interstate and international collective land transport of passengers.
It is true that these legislative measures find their basis in art. 21, XII[1], of the Federal Constitution, which provides for the indirect exploitation of various economic activities (economic activity in the strict sense or public service, in the classic division of the former Minister of the Federal Supreme Court Eros Grau) through authorization, concession or permission. Examples of these activities are sound, sound and image broadcasting services, electric power services and installations and the energy use of watercourses, air and aerospace navigation and airport infrastructure, rail and water transport services between ports Brazilians and national borders and interstate and international road passenger transport services.
The doctrine is far from being peaceful regarding the interpretation of these constitutional provisions. There are those who argue that public services can only be delegated through concession or permission, always through bidding. To this end, they undertake a joint reading of art. 21, XII, with art. 175[2], which establishes that it is incumbent upon the Public Power, directly or under a concession or permission regime, to provide public services. The authorization, by this doctrinal current, for not having been expressly provided for in the caput, of art. 175, of the Federal Constitution, would be reserved for those economic activities in the strict sense in which their relevance is recognized to the point of justifying a more intense state participation, mainly in regulation and inspection. That is to say, the authorization does not lend itself to delegating public services, owned by the Public Power, but only to public utility services.
