The principle of unavailability constitutes a fundamental pillar of Public Law, notably in Administrative and Constitutional Law, establishing that the assets, interests, and prerogatives of the Public Administration do not belong to the state agent, but to the community, and are therefore insusceptible to free disposal or waiver by managers.
Concept and Foundation
Unavailability, as a legal principle, acts as a mechanism to limit the autonomy of will within the scope of public management. Unlike Private Law, where the principle of autonomy of will and full availability of property rights prevail, Public Law is governed by the supremacy of public interest over private interest. The public manager, in this sense, acts as a mere administrator of assets that do not belong to them, being bound by the principle of strict legality.
The legal nature of the institute is that of a principle informing administrative activity, linking the State's actions to the realization of the ends provided for by law. Unavailability, together with the principle of the supremacy of public interest, forms the "foundational binomial" of the legal-administrative regime, as taught by the classical doctrine of Celso Antônio Bandeira de Mello and Hely Lopes Meirelles.
Historical Origin and Evolution
The concept derives from the transition from the Absolutist State to the Rule of Law. In the absolutist model, the confusion between the sovereign's assets and the State's assets was the rule. With the advent of constitutionalism, the separation between the Treasury and the ruler's private sphere was consolidated. Historical evolution reflects the need to protect state assets against dilapidation and misuse, culminating in the constitutional consecration of the duty of efficiency and morality in public management.
Legal and Constitutional Provision
The Brazilian legal system provides robust protection for the unavailability of public assets and rights:
- Federal Constitution (CF/88): Art. 37, which establishes the principles of public administration; Art. 173, § 1, which imposes a specific legal regime for public companies and mixed-capital companies, even when in competition; and Art. 84, which prohibits the disposal of public assets without legislative authorization.
- Administrative Improbity Law (Law No. 8.429/1992): The institute of asset unavailability assumes a procedural role of specific precautionary protection, aiming to ensure reimbursement to the treasury in cases of acts harmful to the Administration.
- Civil Code (Law No. 10.406/2002): Art. 99 et seq., which classify public assets and establish their inalienability, unseizability, and imprescriptibility.
Practical Application and Current Jurisprudence
The jurisprudence of the Superior Courts has consolidated the understanding of unavailability, especially regarding the precautionary measure of asset unavailability in improbity lawsuits. The Superior Court of Justice (STJ), in the judgment of Repetitive Theme 1056, established that the unavailability of assets in administrative improbity lawsuits does not require proof of effective dilapidation of assets, as the demonstration of periculum in mora arising from the gravity of the facts is sufficient.
Within the scope of the Supreme Federal Court (STF), unavailability is frequently invoked to block the waiver of public revenues or the granting of tax benefits without observing the budgetary-financial impact required by the Fiscal Responsibility Law (LRF - LC 101/2000).
Related Principles and Doctrinal Divergences
Unavailability is not absolute. There is a doctrinal debate regarding "transactionality" in Administrative Law. Contemporary currents, such as that of Marçal Justen Filho, argue that unavailability should not be read as a prohibition of agreements, but rather as a requirement that such transactions occur under strict control of legality and transparency. Mediation and arbitration in Public Administration (Law No. 13.129/2015) are examples where unavailability is mitigated, provided that the object is not the essential core of the public interest.
Contemporary Relevance
Currently, the institute is the main safeguard against corruption and inefficiency. In a scenario of scarce resources, unavailability acts as a guarantee that state assets will be directed exclusively toward the public purpose, preventing the manager, for political or personal convenience, from disposing of resources that belong to the community. The practical impact is manifested in external control (Courts of Accounts) and judicial control, ensuring that public assets remain intact for the provision of essential services to the population.
Legal and Jurisprudential References
- BRAZIL. Constitution of the Federative Republic of Brazil of 1988.
- BRAZIL. Law No. 8.429, of June 2, 1992. Provides for sanctions applicable due to the practice of acts of administrative improbity.
- BRAZIL. Supplementary Law No. 101, of May 4, 2000. Fiscal Responsibility Law.
- STJ. Repetitive Theme 1056. Rapporteur Minister Mauro Campbell Marques. Special Court. Judged in 2020.
- MEIRELLES, Hely Lopes. Direito Administrativo Brasileiro. 42nd ed. São Paulo: Malheiros, 2016.
- MELLO, Celso Antônio Bandeira de. Curso de Direito Administrativo. 33rd ed. São Paulo: Malheiros, 2016.
