A natureza jurídica das recomendações do TCU: entre a força cogente das determinações e o Soft Law no controle externo

Abstract

This paper analyzes the legal nature of recommendations issued by the Brazilian Court of Accounts (TCU), investigating the gap between their dogmatic definition and their factual application in Brazilian external control. Based on the analysis of the 1988 Federal Constitution, infraconstitutional legislation, the Court's internal regulations, and specialized doctrine, it seeks to examine whether such acts preserve their collaborative essence or assume veiled coercive features. The qualitative and documentary research method explores the hiatus between soft law theory and the material effectiveness of recommendations as inducers of administrative conduct. By confronting the cogent nature of determinations with the persuasive character of recommendations, the study analyzes how systematic monitoring mechanisms, institutional reputational pressure, and the "comply or explain" technique transmute improvement suggestions into indirect impositive orders. It concludes that the institutional distortion of the instrument creates a functional ambiguity that fuels the so-called "Administrative Law of Fear," resulting in the inhibition of the manager's legitimate discretion and the hypertrophy of external control.