Consórcio Público É De Direito Público Ou De Privado?

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Constituição Federal:

Art. 241. A União, os Estados, o Distrito Federal e os Municípios disciplinarão por meio de lei os consórcios públicos e os convênios de cooperação entre os entes federados, autorizando a gestão associada de serviços públicos, bem como a transferência total ou parcial de encargos, serviços, pessoal e bens essenciais à continuidade dos serviços transferidos.

QUESTÃO ERRADA: As diversas modalidades de parceria entre o setor público e a iniciativa privada são uma forma de expandir a atividade do Estado e, ao mesmo tempo, de fomentar o lucro das empresas contratadas ou conveniadas. É o que constitui a chamada gestão associada, prevista na CF.

 “Autarquias associativas” é uma nomenclatura dada por parte da doutrina aos CONSÓRCIOS PÚBLICOS de direito público celebrados por mais de um ente federativo. São também sinônimo de “Associações Públicas”.

Exemplo: consórcio público celebrado entre a União, o Estado do RJ e o Município do Rio para o tratamento das águas da Baía de Guanabara

O que são consórcios públicos?

Os consórcios públicos são regidos pela LEI Nº 11.107 de 2005 e consistem em uma gestão organizada entre entes federativos com o objetivo de concretizar finalidades comuns entre eles (no exemplo, utilizamos o interesse comum entre União, RJ e Município do Rio em despoluir a Baía de Guanabara).

Qual a natureza jurídica do ato de formação dos consórcios públicos?

O ato de formação dos consórcios públicos não tem natureza contratual. Na verdade, assemelha-se mais a um convênio.

Enquanto o contrato é celebrado por pessoas com vontades e fins diferentes (Ex: o Estado quer o interesse público e o particular quer o lucro), no consórcio e nos convênios as pessoas têm vontades convergentes (no exemplo da Baía de Guanabara, todos os entes agem voltados ao interesse público, que é a sua despoluição). 

O consórcio tem personalidade jurídica?

SIM. Da celebração do consórcio nasce uma nova pessoa jurídica, que não se confunde com a personalidade dos entes associados. O consórcio tem personalidade jurídica própria.

Essa personalidade jurídica é de direito público ou de direito privado?

DEPENDE. O consórcio pode ser uma pessoa jurídica de direito privado ou de direito público, o que será escolhido pelos próprios entes federativos no momento de sua celebração.

Se os entes federativos escolherem a personalidade jurídica de direito privado, o consórcio se assemelhará às associações no direito civil, mas estará derrogado por normas de direito público (deverá, por exemplo, obedecer às regras da obrigatoriedade de licitação e concurso público). 

Art 6º, § 2o No caso de se revestir de personalidade jurídica de direito privado, o consórcio público observará as normas de direito público no que concerne à realização de licitação, celebração de contratos, prestação de contas e admissão de pessoal, que será regido pela Consolidação das Leis do Trabalho – CLT.

Mas se a personalidade jurídica escolhida for de direito público, esse consórcio será chamado de ASSOCIAÇÃO PÚBLICA (ou autarquia associativa).

Portanto, fique atento! “Associação Pública” é a pessoa jurídica resultante da formação de um consórcio público por diferentes entes federativos, os quais optaram por dar-lhe personalidade jurídica de DIREITO PÚBLICO.

A lei afirma que esse consórcio público de direito público (associação pública) integrará a administração indireta de cada um dos entes formadores do consórcio (art. 6º, §1º). Assim, a “associação pública” é um ente da administração indireta, com personalidade jurídica própria, mas que integra a esfera de cada ente federativo celebrador do consórcio.

   Art 6º, § 1o O consórcio público com personalidade jurídica de direito público integra a administração indireta de todos os entes da Federação consorciados.

Portanto, segundo a doutrina majoritária, as associações públicas também poderiam ser chamadas de “entidades transfederativas“! 

Mas os consórcios públicos de direito privado não. Estes, por não integrarem a administração indireta de cada ente federativo e se assemelharem às associações do direito civil, não poderiam ser chamados de entidades transfederativas.

    Art. 6o O consórcio público adquirirá personalidade jurídica:

        I – de direito público, no caso de constituir associação pública, mediante a vigência das leis de ratificação do protocolo de intenções;

        II – de direito privado, mediante o atendimento dos requisitos da legislação civil.

Observe que o protocolo de intenções é tanto para aqueles de direito público quanto os de direito privado.

O contrato de consórcio público será celebrado com a ratificação, mediante lei, do protocolo de intenções.

Importante lembrar: como o contrato de consórcio é celebrado? Com a ratificação do protocolo de intenções mediante lei e não decreto ou qualquer outra coisa.

Contudo, o ente da Federação que, antes de subscrever o protocolo de intenções, disciplinar por lei

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a sua participação no consórcio público ficará dispensando dessa ratificação.

Entretanto, há doutrina minoritária que defende que os consórcios públicos de direito privado também podem ser chamados de “empresas públicas transfederativas”. Segundo tais autores, os consórcios públicos de direito privado não se assemelhariam às associações do direito civil, por estarem derrogados por normas de direito público. Seriam, na verdade, entidades de direito privado da administração indireta (como as empresas públicas).

Mas cuidado! Para provas objetivas, siga o entendimento de que somente os consórcios públicos de direito público (associações públicas) integram a administração indireta de cada ente, pois este é o texto seco da lei (art. 6º, §1º).

Por que a expressão “autarquia associativa”?

Segundo alguns autores, os consórcios públicos de direito público (associações públicas) seriam, na verdade, uma espécie de autarquia (a chamada “autarquia associativa”). Isso porque são entidades da administração indireta com personalidade jurídica própria e de direito público.

QUESTÃO ERRADA: Segundo jurisprudência consolidada do Supremo Tribunal Federal (STF),a formação do referido consórcio administrativo depende de aprovação prévia das câmaras municipais de ambos os municípios, no exercício da competência fiscalizadora, atribuída expressamente pela Constituição Federal ao Poder Legislativo municipal, levado a efeito mediante controle externo, com o auxílio dos tribunais de contas dos estados ou dos municípios ou dos conselhos ou tribunais de contas dos municípios, onde houver.

ERRADO. Existe posicionamento do STF no sentido de que é afronta a separação dos poderes submeter o convênio (consórcios) à aprovação prévia do Poder Legislativo. A criação de consórcio público não depende de autorização legislativa; 

Os consórcios administrativos e convênios administrativos não dependem de autorização legislativa para gozar de existência jurídica, mesmo porque inviabilizariam a formalização do ajuste e a sua própria finalidade, além disso, persiste a ideia de independência dos poderes preconizada na Carta Magna.

QUESTÃO ERRADA: Aplicam-se às autarquias e fundações regime jurídico de direito público; ao consórcio público aplica somente o regime jurídico de direito privado.

QUESTÃO CERTA: Por meio da contratação de consórcios públicos, poderão ser constituídas associações públicas para a realização de objetivos de interesse comum, adquirindo tais entidades personalidade jurídica de direito público e passando a integrar a administração indireta de todos os entes federativos consorciados.

QUESTÃO CERTA: O consórcio público adquirirá personalidade jurídica de direito público, no caso de constituir associação pública, mediante a vigência das leis de ratificação do protocolo de intenções, e integrará a administração indireta de todos os entes da Federação consorciados.

Fonte: http://resumosdireito.blogspot.com/2014/05/associacoes-publicas-autarquias-associativas.html

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