O confronto entre a livre iniciativa, a livre concorrência e o direito à segurança nos casos de postos de combustíveis: um cotejo entre a jurisprudência do Tribunal de Justiça do Estado do Ceará e a do Supremo Tribunal Federal

Abstract

This work analyzes the comparison made by the Court of Justice of the State of Ceará (TJCE) and the Supreme Court (STF) between free enterprise, free competition and the right to security in the case of fuel filling stations. The methodology used was based on research into the doctrine, scientific articles and, mostly, legislation and jurisprudence, both of the TJCE and of the STF. Initially, it contemplates the role of free enterprise and free competition as constitutional principles of the economic order, as well as it investigates the content and scope of the right to security from the different interpretations allowed by the national legal order. Subsequently, it analyzes the main norms of urban law applicable to fuel filling stations installed in the Municipality of Fortaleza, in order to understand the most relevant legal limitations to the rights to build and to exercise private business. It culminates in the study of judgments of the TJCE and the STF that deal with legislation stipulating restrictions on the installation of fuel filling stations, then it analyzes the understanding of those Courts on the constitutionality of the legal texts submitted to its appreciation. It concludes that the jurisprudence is oriented to consider constitutional the legal restrictions to that type of establishment, given the primacy of collective rights to security, health and life over the individuals rights to build and to enterprise, as well as the legitimacy of Municipalities to edit norms that regulate the mentioned activity.