The perspective of national courts regarding the limits of regulatory agencies' normative power: the state of the art in Brazil prior to the overcoming of the Chevron doctrine

Abstract

This article aims to present the state of the art in national jurisprudence regarding the limits of the freedom of configuration/conformation (or legislative/normative discretion) during the period before the overcoming of the so-called Chevron doctrine. To achieve these objectives, a qualitative methodology was adopted through the technique of documentary research, conducting a comprehensive survey of the main decisions of the Supreme Federal Court, the Superior Court of Justice, the Brazilian Regional Federal Courts, and the main courts with constitutional jurisdiction in the West (Spain, Portugal, Italy, France, Germany), as well as two supranational courts, the Court of Justice of the European Union and the European Court of Human Rights, concerning the limits of the freedom of configuration/conformation. Subsequently, the focus was placed on national jurisprudence regarding the normative power of Brazilian regulatory agencies, in order to identify the main limits employed in controlling their exercise, identifying: (i) legality/hierarchy of norms; (ii) reasonableness/proportionality; and (iii) isonomy, considering the strong influence of the requirements of the Chevron doctrine before its said overcoming.