A (in)constitucionalidade da suspensão da prestação de serviços públicos pela inadimplência do usuário

Abstract

The present article faced the problematic regarding the cut of public service by lack of payment, proposing reflections on the item II of the pargraph 3 of article 6 of Law no. 8, 987 (BRASIL, 1995) with support in Post-positivist theory, especially in the areas developed by Dworkin (2002) and Alexy (1988, 2007 and 2008). In order to do so, a broad review of the available literature on the subject was carried out, as well as a survey of the recent jurisprudence of the superior courts on the problematic, when it was verified the impropriety of its treatment in court. The research allowed a new theoretical approach to the problem, based on the fact that public services are activities that aim at the promotion of fundamental rights and that, in the event of user default, they collide with the fundamental right to property of the company that provides the service through concession, which is, in the long-term, a condition for the maintenance of the service itself, as well as the fundamental rights of other users, since the absence of costing of the activity threatens its continuity. In this way, proposals for resolving the impasse were formulated through the application of the maximum of proportionality based on the identification of four differentiated situations that could be concretized such as default due to transient circumstances, default due to permanent nonavailability of cost of service, voluntary default and default of public entities.