Considering the User of Public Services Code

The article 9 of this Code guarantees to the user of public service the right to submit requests to the Public Administration

User of Public Services Code – Federal Law nº 13.460, June 26^th, 2017, enhances the level of requirements on the provision of public services because it regulates on the participation, the protection and the defense of user rights in relation to public services (delegated or not). Both direct and indirect Public Administration of Federal Union, Member States and municipalities must to obey the legal norms established by this Code. Additionally, public services provided by private agents in any modality of procurement or remuneration.

The article 9 of this Code guarantees to the user of public service the right to submit requests to the Public Administration on the provision of public services. It enhances the level of requirement in relation to the provision of public services by virtue of user initiative based on this fundamental right.

It’s important to state that although art. 5 refers to the appropriate provision of public services, which is also disciplined by our General Law of Concession Contracts (Federal Law nº 8.987/1995), the legal regime established by User of Public Services Code doesn’t refers only to the delegable public services by means of concession contracts. The definition established by art. 2, II, of the User of Public Services Code makes it clear:

Art. 2º It is considered for this Law purposes:

II – public service – administrative activity or direct or indirect provision of goods and services to the population, exercised by any public body or entity from Public Administration;

Therefore, the public service defined by this norm doesn’t embraces only those public activities delegable by means of common concession or public-private partnerships (sponsored concession and administrative concession), but also to the activities which are characterized by the exercise of the police power and the regulation of these activities (commonly attributed to independent regulatory agencies). Hence, both the regulatory Public Administration and the particular provisioner of public services are submitted to the User of Public Services Code.

In relation to the Public Administration, which embraces authorities as independent regulatory agencies and bodies from direct Public Administration (Ministries, Councils) because of the wide adopted concept, the guidelines from art. 5 of this Code which submit it enhances the obligation to attend the user in accordance to the constitutional principles that regulates the activities of the Public Administration (legality, impersonality, morality, publicness and efficiency). One of these guidelines is the adequation between means and goals with no imposition of requirements, obligations, restrictions or penalties which are not legally established. This guideline is in accordance to the legality principle. However, public bodies and entities do not comply with this principle in some cases, when they establish penalties which are not legally established.

In the same way, art. 5 of the User of Public Services Code establishes as a guideline, in its subitem XI, the elimination of formalities or requirements which financial or social costs are superior to the involved risk. It is an important guideline which can help confer celerity and then efficiency both to administrative procedures of registration of regulated products and administrative procedures of authorization of activities which are regulatorily conditioned despite of being in the free initiative domain.

Due to its application to the private provisioner of public services, one question that must be treated is the possibility of financial impacts by virtue of this Code, specially in the case of concession of public services. Furthermore, the art. 7 from User of Public Services Code establishes the obligation to release the Charter of Services to the User, which must contain information like the offered services, the requirements, documents and ways of using the service, the form of provision of the service offered and both points and forms which user must take in account to submit casual requests on the public service provision. Moreover, the concessionary must to adopts by virtue of this Code procedures in order to receive and respond the requests which are user’s rights. Thus, it must to obey the steps established by art. 12:

Receiving the request in the adequate channel of attending;
Issuance of the protocol which confirms the receiving of the request;
Analysis and obtainment of information, if it is necessary;
Final administrative decision;
Giving cognizance on the decision to the user.

These requirements can affect the economic-financial balance of the concession contracts depending on the delegated public service, once that in these cases the rights established in favor of users impose obligations that imply financial costs.

In summary, the User of Public Services Code represents an important innovation: the public services are widely treated, and the user rights already existing in the Brazilian legal system are enhanced. In the other hand, in the case of concession of public services, these innovations can change the economic-financial balance of the contract.

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Rodrigo Alberto Correia da Silva

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Category: ADMINISTRATIVE, REGULATORY AND ENVIRONMENTAL, Rodrigo Alberto Correia da Silva

Tags: administrative, correia dasilva advogados, csa, environmental, public services, regulatory

Posted in: 14/06/2019

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Rodrigo Alberto Correia da Silva

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