Tipos de Descentralização (Com Exemplos)

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Tipos de Descentralização

Descentralização administrativaÉ a circunstância na qual um ente central empresta atribuições a órgãos periféricos ou locais dotados de personalidade jurídica. Tais atribuições não decorrem da Constituição, mas do poder central que as defere por outorga (lei) ou por delegação (contrato). Classifica-se em: (1) descentralização territorial ou geográfica; e (2) descentralização por serviços, funcional ou técnica; e (3) descentralização por colaboração.

Descentralização territorial: É própria de países que adotam a forma unitária de Estado, como Bélgica, França e Portugal, que se dividem em departamentos, províncias e regiões. 

Descentralização por serviços: Assim se denomina a descentralização administrativa em que o Poder Público cria uma pessoa jurídica e atribui a titularidade e a execução de serviço público, como exemplos clássicos há a criação de entes da Administração Indireta, isto é, autarquias, fundações, sociedades de economia mista e empresas públicas.

Descentralização por colaboração. É feita por concessão ou permissão de serviço, sendo que o Poder Público conserva a titularidade do serviço público, cujo exercício é repassado ao particular. Note-se que é mais comum encontrar na literatura do Direito Administrativo brasileiro alusão genérica à descentralização como sendo a por serviços, muito embora a doutrina também faça referência às demais hipóteses mencionadas. Geralmente, o propósito é diferenciar a descentralização do fenômeno da desconcentração, pois nesta última não há a presença de mais de uma pessoa jurídica.

CEBRASPE (2006):

QUESTÃO CERTA: Os contratos de concessão, celebrados e gerenciados pela ANATEL, são modalidades de contratos administrativos que formalizam o processo de descentralização administrativa.

É a chamada descentralização por COLABORAÇÃO.

FCC (2019):

QUESTÃO CERTA: Em se tratando da organização político-administrativa dos Municípios, Estados e União, a descentralização corresponde à: criação de novas pessoas jurídicas de direito público ou privado por parte dos entes da Federação para transferência de parte das atribuições do ente criador para o novo ente criado, não havendo subordinação entre elas.

CEBRASPE (2014):

QUESTÃO CERTA: Considere que determinado município tenha extinguido órgão de sua estrutura administrativa e que o serviço público correspondente tenha sido delegado a pessoa jurídica de direito privado. Nessa situação, ocorreu descentralização da atividade administrativa, com ruptura do liame hierárquico e exclusão da relação de subordinação com o município.

Quadrix (2019):

QUESTÃO ERRADA: A descentralização administrativa ocorre quando o ente descentralizado exerce atribuições que não decorrem do ente central.

A descentralização administrativa ocorre quando um ente principal ou central concede atribuições aos entes descentralizados, perfilando Fernanda Marinela “nessa situação, o que existe é a criação de entes personalizados, com poder de autoadministração, capacidade de gerir os próprios negócios, mas com subordinação a leis e a regras impostas pelo ente central”[¹]. A descentralização administrativa como gênero comporta três espécies, quais sejam: descentralização territorial ou geográfica, descentralização por serviços, funcional ou técnica e a descentralização por colaboração.

Quadrix (2019):

QUESTÃO CERTA: São características da descentralização territorial a delimitação geográfica e a capacidade administrativa genérica.

CF/88 Art. 18. A organização político-administrativa da República Federativa do Brasil compreende a União, os Estados, o Distrito Federal e os Municípios, todos autônomos, nos termos desta Constituição.

§ 2º Os Territórios Federais integram a União, e sua criação, transformação em Estado ou reintegração ao Estado de origem serão reguladas em lei complementar.

Essa é uma modalidade de descentralização na qual a União cria uma pessoa jurídica com limites territoriais determinados e competências administrativas genéricas. Os territórios não integram a federação, mas possuem personalidade jurídica de direito público. Não possuem também capacidade política, mas apenas administrativa genérica, por esse motivo alguns doutrinadores chegam a chamá-las de autarquias territoriais ou geográficas.

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CEBRASPE (2013):

QUESTÃO ERRADO: O fato de um ministério distribuir competências no âmbito de sua própria estrutura caracteriza um exemplo de descentralização administrativa.

Isso é desconcentração.

VUNESP (2014):

QUESTÃO CERTA: A descentralização é o fato administrativo que traduz a transferência da execução da atividade estatal a determinada pessoa, integrante ou não da Administração.

FCC (2018):

QUESTÃO CERTA: Considere que o Estado do Amazonas tenha decidido criar, por lei específica, uma autarquia, atribuindo a ela o serviço público de transporte intermunicipal. A situação narrada constitui exemplo de descentralização administrativa, com transferência da titularidade do serviço ao novo ente, dotado de auto-administração. 

CEBRASPE (2018):

QUESTÃO CERTA: No caso de descentralização por colaboração, a alteração das condições de execução do serviço público independe de previsão legal específica.

CORRETO, pois como as condições da execução são dadas por contrato ou ato administrativo unilateral, podem ser alteradas unilateralmente pela administração pública a seu critério.

FGV (2023):

QUESTÃO CERTA: Com o intuito de priorizar algumas atividades a serem realizadas pela Administração Pública, suponha que em determinado estado brasileiro seja decidido transferir o serviço público de gás canalizado para a empresa privada Gasosa S.A., por meio de concessão.
Nesse sentido, é correto afirmar que deve ser realizada uma: descentralização, por meio de transferência da execução do serviço público para a iniciativa privada, mas mantendo a titularidade com a Administração Pública.

Descentralização por Outorga/Serviços

  • entes da adm. indireta (autarquias, Fund. públicas, EP e SEM)
  • Só mediante Lei
  • Transfere Titularidade + Execução

Descentralização por Delegação/Colaboração

  • PJ direito privado (concessionários, permissionários, autorizatários)
  • Mediante ato ou contrato administrativo
  • Transfere só a execução do serviço (PS: Titularidade fica com o poder concedente)

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