Since the Social Security Reform failed, the Federal Government announced that it will prioritize institutional micro-reforms. One of them is the new framework for regulatory agencies, the subject of Senate Bill (PLS) No. 52/2013.
The new framework was presented in 2013 in the Senate, where it has already passed and is now in the Chamber of Deputies waiting for a conclusive opinion by the Special Committee. From the legislative point of view, PLS 52/2013 amends several specific laws, each referring to a specific regulatory agency, in addition to Law No. 9,986/2000, which provides for the management of human resources within these bodies. In essence, the bill incorporates guidelines from the Organization for Economic Cooperation and Development (OECD) into the national regulatory environment, thereby homogenizing rules on governance, management, and procedures applicable to regulatory agencies. It also provides a special discipline for conflicts between authorities (for example, in addressing Cade's jurisdiction versus that of agencies).
If approved, the new law will reconfigure nothing less than ten agencies at the federal level: Aneel, Anatel, ANP, ANTT, Antaq, and Anac are on the list. They are bodies directly related to the Brazil's structural investment agenda. Not only do they exercise regulation and supervision over concessions, but they also decide on tariff revisions and corporate changes in the concessionaires' control groups, also giving technical opinions on the feasibility of new bidding notices or the renegotiation of existing ones in complex processes such as early extensions in the transport and logistics sectors. Regulatory agencies even affect the liquidity and certainty of users' rights. Hence the indisputable relevance of matter.
In terms of governance, PLS 52/2013 has concerns similar to those of the State-Owned Companies Law (Law No. 13,303/2016). In order to mitigate the risk of patronage, as well as political and market influence, members of the governing boards of the agencies become subject to thus far unprecedented requirements and restrictions. As an example, they may not have participated in the decision-making structure of a political party or labor union linked to the organization of an electoral campaign in the last three years. Those who hold a position in a trade union organization are also disqualified. Likewise, individuals who have maintained in the last year one of the following bonds with a company that conducts activities regulated by the respective agency: (a) direct participation as a shareholder or partner; (b) director, officer or member of an audit committee; and (c) employee, even if with a suspended employment contract, including with its holding company, or employee of a pension fund foundation of which the company or its holding company is a sponsor or funder.
Although the indication of the members of the governing boards remains under the competence of the President of Brazil, subject to the confirmation of the Senate, this choice would now be preceded by a public pre-selection process from a three-name list to be formulated by a selection committee. Once appointed, the members of the agency's governing bodies would serve for a term of five years, without renewal (except in the case of completing an unfinished previous term of office, for a period not exceeding two years). The stability of the mandate was reinforced by PLS 52/2013: the members of the governing boards can only be exonerated in the case of a final judicial order or as a result of administrative disciplinary proceedings.
A point that merits reflection is the lack of a planned and simultaneous beginning for the mandates. In the model projected, each member of the governing boards of the same regulatory agency enters at a different time from the other, in accordance with the convenience or need to fill in vacancies. The five years are considered only as a period of stability, and not as a cycle for regulatory policy conducted by the agency. This is not the best practice. The formation of a governing board with no homogeneity of thought and values, at least initially, about the regulatory actions to be applied in the long term jeopardizes the political and decision-making unity of the agency, as well as its predictability, values that should be more important for regulated companies than the resonance of their particular desires.
The initial version of PLS 52/2013 established the negotiation and conclusion of a management contract between the agencies and ministries to which they were bound, pursuant to paragraph 8 of article 37 of the Federal Constitution. With the management contract, agencies would receive, as consideration for the expansion of their autonomy, an instrument for performance, goals, and objectives, which would allow for their objective evaluation. This rule was replaced by a provision for a strategic plan and an annual plan, which, however, lack the nature of a contract. Although the plans also subsidize external control over the agencies, doubts remain about its binding force and the actual effectiveness of goals that agencies unilaterally plan and set for themselves. In view of the agencies' limited experience in management contracts, despite the content of Decree No. 2,487/1998, PLS 52/2013 missed the opportunity to encourage the execution of these instruments.
Administrative procedures within the agencies will have common rules. All normative acts published, for example, should be preceded by regulatory impact analysis (AIR), a public consultation, and a public hearing. It emphasizes, on the one hand, a technical methodology in the formation of decisions and, on the other, social transparency and participation in the construction of rulemaking acts. There was, however, no provision of parameters for each agency to issue internal regulations that establish administrative procedures in a more concrete and systematic manner. It would be advisable, for example, to ensure that regulated parties receive regulatory guidance within reasonable deadlines.
In the exercise of their duties, it will be the responsibility of the agencies to oversee and monitor the market practices of participants in the regulated sectors in order to assist Cade in overseeing compliance with antitrust laws. In addition, PLS 52/2013 provided for mutual cooperation between federal regulatory agencies and similar agencies in states and municipalities, also authorizing inter-governmental delegation of non-regulatory activities through a cooperation agreement. The principle of cooperation between authorities is thus honored, but incompletely: for example, in the examination of concessions, the interaction of regulatory agencies with the Federal Court of Accounts (TCU) is simply neglected.
Almost 20 years after the emergence of regulatory agencies in Brazil, the new framework tries to grant greater freedom of regulatory action, introducing possible advances in terms of autonomy and transparency of decisions. There is a great deal to be further developed, especially with regards to procedural security, predictability, conflict of jurisdiction, and technical quality of regulatory decisions.