Responsabilidade civil das agências reguladoras por omissão: um estudo à luz da autonomia decisória e da discricionariedade técnica

Abstract

This paper examines the civil liability for omission of regulatory agencies, considering the predominance of technical discretion that characterizes their actions in the context of the regulatory state. It begins with a general study of the civil liability of the state, emphasizing the distinction between generic and specific omission, to identify how this differentiation is relevant to the applicable regime. Next, it analyzes the legal regime of regulatory agencies, focusing on the discretion and enhanced autonomy of their actions, as well as the limits of judicial control over their regulatory choices. The central problem addressed in this study lies in the necessary balance between preserving the technical and regulatory autonomy required for the efficient performance of modern regulatory activity and the constitutional requirement for the State's civil liability, especially with regard to acts of omission. The research, which is qualitative in nature, was based essentially on a review of the literature, the study of court decisions, the analysis of legislation and the study of comparative law. It concludes that the civil liability of regulatory entities should be modulated according to the degree of discretion of the omitted duty: when there is no margin for choice, strict liability applies; when the decision falls within the legitimate scope of technical discretion, liability should be subjective in nature. Thus, the study proposes a criterion of balance between the protection of regulatory autonomy and the guarantee of individual rights.