Public administration reserve: conceptual definition and applicability in Brazilian

Abstract

This paper presents a study about the Public Administration reserve, understanding it from two aspects: the Public Administration reserve in the strict sense and regulation reserve. The first is implicit in the notion of separation of powers, while the existence of the second, consolidated in the French and Portugal Constitutions, is controversial in Brazilian law, especially after the issuance of Constitutional Amendment n° 32/2001. To this end, it will be discussed some topics related to the institute, the conceptualization and applicability of the reserve administration in its two species and how the Constitution of some European countries disciplines the Public Administration reserve. Regulatory species in Brazil will also be discussed and how the Supreme Court views the institute in its both species. Finally, it will be proposed an analysis of the institute in Brazil after the issue of that Amendment.