A (in)aplicabilidade da lei nº 11.101/2005 às empresas estatais em crise: entre a supremacia do interesse público e a igualdade de tratamento

Abstract

This study examines the applicability of Law No. 11,101/2005 (Brazilian Bankruptcy and Judicial Reorganization Law – LREF) to state-owned enterprises, in light of the apparent conflict between the principle of equal treatment between state-owned and private enterprises, as provided for in Article 173 of the Brazilian Federal Constitution, and the express exclusion of state-owned enterprises from the judicial reorganization and bankruptcy regime established by infraconstitutional legislation. Initially, the study revisits basic concepts related to Public Administration and the legal characterization of state-owned enterprises, highlighting their historical development and the role they play within the structure of the State, as well as establishing the distinction between their main forms, namely public enterprises and mixed-capital companies. Subsequently, in a chapter dedicated to the examination of the specific aspects of the debate, the analysis addresses the possibility of attributing normative force to the principle of the supremacy of the public interest in order to assess the constitutionality of the prohibition set forth in the LREF, in addition to examining in detail the peculiarities of the legal regime applicable to state-owned enterprises. Finally, in the last chapter, the study analyzes the divergent doctrinal positions developed over recent decades and, once the terms of the debate are clearly defined, examines the understanding adopted by the Brazilian Supreme Federal Court in the judgment of Theme 1,101 of General Repercussion, concluding that the Court has consolidated the understanding of the constitutionality of the exclusion of public enterprises and mixed-capital companies from the scope of application of the Brazilian Bankruptcy and Judicial Reorganization Law, even when they engage in economic activity, thereby adopting an approach that privileges the public interest.