February 8th, 2018

The competence boundaries between Legislative Power and ANVISA in STF Constitutionality Control

Competence boundaries between Legislative Power and ANVISA

The competence boundaries between Legislative Power and regulatory agencies were newly analysed in STF’s control of constitutionality. This time, STF brought as a dangerous precedente the possibility of constitutional analysis on normative resolution.

The competence boundaries between Legislative Power and ANVISA in STF Constitutionality Control

Recently, STF (Federal Supreme Court) judged Declaratory Action of Constitutionality nº 4.874, which object is the constitutionality of ANVISA’s RDC nº 14/2012, that forbids the addition of flavor and taste in cigarettes. It’s an administrative act enacted on the basis of art. 7º, III and XV, Federal Law nº 9.782/1999.

            Industry’s National Confederation (CNI) – the plaintiff of this action – requested to the Supreme Court interpretation according to Constitution in order to determinate that ANVISA’s normative activity must be directed to determined agents, in concrete situations and in the cases of health risk which is exceptional and urgent. Consequently, the plaintiff also requested the declaration of constitutionality of RDC nº 14/2012.

            The Court took cognizance of all requests made by CNI. By vote’s majority, STF refused the request of interpretation according to Constitution. In the analysis of constitutionality’s RDC nº 14/2012, there was a draw with 05 votes for the unconstitutionality of this administrative resolution against 05 for its constitutionality. This request was refused because of quorum’s absence, but without binding and erga omnes effects.

            The Justices who voted in favor of the thesis of constitutionality of the norm in analysis asserted that it attended constitutional and legal rules directly. They declared that ANVISA’s regulatory activity also must take in account the guarantee of the constitutional right to health (Federal Constitution’s art. 196), as well as art. 6º, Federal Law nº 9.782/1999, which establishes as agency’s goal the promotion of people’s health protection by sanitary control of production and trading of products subjected to sanitary surveillance. Thus, it would be a matter of ANVISA’s technical leeway.

            In the other hand, the understanding in favor of unconstitutionality has its basis in art. 8º, § 1º, X, Federal Law nº 9.782/1999, once ANVISA has the competence to regulate, control and inspect cigarettes. Hence, the prohibition would not be possible. Furthermore, this case represents the possibility of restriction of fundamental rights by regulatory authority. It means a suppression of Legislative Power, once no one shall be obliged to do or refrain from doing something except by virtue of law.

            We have to affirm that this judgement opened a dangerous precedent by admitting the possibility of direct analysis of constitutionality of normative administrative act. However, it goes against former Supreme Court decisions, once there are precedents in the sense of normative resolutions mustn’t be object of declaratory action of constitutionality because the administrative act’s legal standard of analysis is not the Constitution, but the regulated law (see STF’s Ag. Re. on ADI 3.074). According to this understanding, normative resolutions could be object of diffuse control of constitutionality only. In reason of this changing of understanding, in DAC nº 4.874, the Federal Supreme Court can increase of Declaratory Actions of Constitutionality which impugns administrative resolutions. It can prejudice the celerity for handling procedures.