By: Leonardo Neri

Article 18[1], of the Federal Constitution establishes that the political-administrative organization of the Republic comprises the Union, States, Municipalities and the Federal District, all of which are autonomous, with no hierarchy between the federative entities. In other words, they all have clear and distinct rules of competence, issued by the Magna Carta.

In this sense, the Constitutional jurisprudence of the Supreme Federal Court, in order to guarantee harmonious action between the federative units and, mainly, to preserve municipal autonomy, as observed in the Judgments of RE 1151237, RE 626946, RE 591033, ADI 1.842, PET. 3.388 RORAIMA, are all unanimous in affirming the autonomy of the Municipality.

Municipalities have legislative and supplementary powers, that is, the Constitution attributed supremacy to local interests in certain matters, materialized by their capacity for organization, government, administration and legislation, including the power to protect and preserve heritage.

However – as predicted by Montesquieu in The Spirit of the Laws – this Political-Administrative organization is only viable through the system of Checks and Balances, that is, it will be lawful for there to be interventions in these federative autonomies, but the Constitution itself authorizes them. As can be seen in articles 34, 35 and 36 of the Magna Carta[2].

Harmonious action between the federative units presupposes a balance between the entities that must be associated with the constitutional order. Here there is the challenge of balancing symmetries – States, Federal District and Municipalities adopt in their respective Constitutions and Organic Laws, the fundamental principles and rules of organization existing in the Constitution of the Republic, mainly related to the organization of their bodies and limits of their own action and autonomy.

The issue takes on dramatic contours when we are surprised by the decision of the Government of the State of São Paulo to promote the Concession of an important stretch of road, called Litoral Paulista, with material defect, as it intends to grant local roads in the Municipality of Mogi das Cruzes.

So much so that, as soon as the International Bidding Notice was published, at least two collective actions took place.[3], questioning municipal autonomy and the abuse of rights by the State Government in including municipal roads in the concession.

In the Public Civil Action, the preliminary decision suspended the bidding notice for the concession of public services for the expansion, operation, maintenance and implementation of investments in a state highway, with a request on the merits to declare the nullity of said notice, since, as stated elsewhere, some municipal public roads are included in the concession project. Among the grounds of the Municipality is the breach of its autonomy over its own territory and urban heritage.

However, despite the possible breach of autonomy alleged by the Municipality, with regard to the lack of consultation by the State regarding changes that would result from the concession of sections of state highway that pass through the urban section, it is known that the concession of public service to the private sector is the way found by the Administration to guarantee quality, investments and efficiency in the provision of services.

Thus, in order to provide some services, the State needs to intervene in urban areas, such as, for example, in order to provide piped gas services, which are operated directly by the States or by the private sector, through concessions.

Following the logic alleged by the Municipality of Mogi das Cruzes, the population of this city could not have piped gas, since for the local distribution of this service, there is a need for installation, maintenance and other procedures in urban areas, by private companies, with a charge for the provision of the service.

Likewise, the exceptional situation experienced as a result of the Coronavirus pandemic, in which the States dictate rules that are followed by Municipalities, such as the closure of businesses, because there are no legal provisions capable of translating the risks. Although the measures are complied with by almost all Municipalities, some disagree with the State's interference and file lawsuits to remove them.

Therefore, to guarantee the public interest in providing the service efficiently, and so that decisions that may interfere with the functionality of the public good are based on technical grounds, the intervention is not related to the dominance of the State's interest over the Municipality's interest, but to the protection of a greater good, the security of the system and the population.

Furthermore, it is noted that the Public Power must value the interests of the citizen, in view of the principle of sovereignty of the public interest over private interest and, therefore, the need for harmonious functioning between the federative units, assuming a balance between the entities. In this case, the intervention of the State in the Municipality is of common interest and the execution of works in the urban stretch, in the case of the public civil action filed by the Municipality of Mogi das Cruzes, would not be incompatible with municipal autonomy, since the interest in that case is not only of the State, but also common to the Municipalities involved in the bidding works, thus becoming beneficial to the urban grouping.

[1] Art. 18. The political-administrative organization of the Federative Republic of Brazil comprises the Union, the States, the Federal District and the Municipalities, all autonomous, under the terms of this Constitution.

[2] Art. 34. The Union shall not intervene in the States or in the Federal District, except to: I – maintain national integrity; II – repel foreign invasion or invasion by one unit of the Federation of another; III – put an end to serious compromise of public order; IV – guarantee the free exercise of any of the Powers in the units of the Federation; V – reorganize the finances of the unit of the Federation that: a) suspends payment of the debt founded for more than two consecutive years, except for reasons of force majeure; b) fails to deliver to the Municipalities the tax revenues established in this Constitution, within the deadlines established by law; VI – provide for the execution of federal law, order or judicial decision; VII – ensure compliance with the following constitutional principles: a) republican form, representative system and democratic regime; b) human rights; c) municipal autonomy; d) accountability of the public administration, direct and indirect; e) application of the minimum required of the revenue resulting from state taxes, including that from transfers, in the maintenance and development of education and in public health actions and services. (As amended by Constitutional Amendment No. 29 of 2000) Art. 35. The State shall not intervene in its Municipalities, nor shall the Union intervene in Municipalities located in Federal Territory, except when: I – the funded debt is not paid, without reason of force majeure, for two consecutive years; II – the due accounts are not rendered, in accordance with the law; III – the minimum required municipal revenue has not been applied to the maintenance and development of education and public health actions and services; (As amended by Constitutional Amendment No. 29 of 2000) IV – the Court of Justice grants the representation to ensure compliance with principles indicated in the State Constitution, or to provide for the execution of a law, order or judicial decision. Art. 36. The decree of intervention shall depend on: I – in the case of art. 34, IV, at the request of the Legislative Branch or the coerced or impeded Executive Branch, or at the request of the Supreme Federal Court, if the coercion is exercised against the Judiciary Branch; II – in the case of disobedience to a judicial order or decision, at the request of the Supreme Federal Court, the Superior Court of Justice or the Superior Electoral Court; III – upon provision, by the Supreme Federal Court, of a representation by the Attorney General of the Republic, in the case of art. 34, VII, and in the case of refusal to execute a federal law. (As amended by Constitutional Amendment No. 45, 2004) IV – (Revoked by Constitutional Amendment No. 45, 2004) § 1 The intervention decree, which will specify the scope, term and conditions of execution and which, if applicable, will appoint the intervener, will be submitted for consideration by the National Congress or the State Legislative Assembly within twenty-four hours. § 2 If the National Congress or the Legislative Assembly is not in session, an extraordinary session shall be convened within the same twenty-four-hour period. § 3 In the cases provided for in Article 34, VI and VII, or Article 35, IV, where the need for consideration by the National Congress or the Legislative Assembly is waived, the decree shall be limited to suspending the execution of the contested act, if this measure is sufficient to restore normality. § 4 Once the reasons for the intervention have ceased, the authorities removed from their positions shall return to them, unless there is a legal impediment.

[3] 1010743-07.2021.8.26.0361 – Public Civil Action – Act Harmful to Artistic and Aesthetic Heritage,

Historical or Tourist – Applicant: Municipal Government of Mogi das Cruzes and Popular Action No. 1029494-93.2021.8.26.0053.