Limits of Brazilian Federal Court of Accounts (TCU) control over discretionary acts of regulatory agencies

Abstract

This paper intends to analyze the limits of the external control performed by Brazilian Federal Court of Accounts (TCU) over discretionary administrative acts of regulatory agencies. It can be seen that the discretionary concept has evolved during the last three centuries in Brazil. Since the 19^th century e even nowadays, there are people who advocate for the impossibility of external control, be it administrative or judicial, over the core of these acts. On the other hand, there are people who defend that it cannot exist acts that are not subject to any kind of control. Normative and empirical studies demonstrate that TCU follows the most accepted theory, which allows the acts control inside certain limits. Therefore, even though exists a discretionary space for some decisions making by the public administrators, it is indispensable that these acts obey the constitutional and legal limits, in order to protect the normative power of the Constitution and even the Democracy.