A reversibilidade de bens no Serviço Público concedido: implicações à luz da Indisponibilidade do interesse público

Abstract

This paper analyzes the clause on the reversibility of assets in public service concession contracts, using a descriptive research methodology, with a bibliographic and interdisciplinary approach, qualitative data, and analysis based on legislation, legal scholarship, and case law from Brazilian Courts of Justice and Courts of Accounts. The study also includes a case study concerning the concession of basic sanitation services entered into by the Municipality of Governador Valadares, in the state of Minas Gerais. The purpose of the article is to examine the institute of asset reversion in light of the principles of continuity of public services and the unavailability of the public interest, highlighting the relevance of this contractual clause in safeguarding public assets and ensuring the uninterrupted provision of services that are not exclusive to the State. To this end, the research raises the question of whether the Granting Authority may, based on administrative discretion, choose not to apply the asset reversion clause at the end of the concession, or whether such conduct would violate the principles of continuity of public services and the unavailability of the public interest. Accordingly, the study adopts as a hypothesis the premise that the reversion clause is mandatory rather than discretionary, such that its non-application entails the loss of public assets and harm to the continuity of the granted services. Nohara (2016), in arguing that administrative discretion is limited by the normative framework and in warning against the colonization of the public sphere by private logic to the detriment of the collective interest, is adopted as the theoretical framework of this essay. The results show that, although this clause is provided by law as an essential element of concession contracts, it is often neglected in administrative practice, whether due to the absence of specific regulation or to a lack of oversight and control of reversible assets. Such omission undermines the continuity of public services, generating state dependence on the concessionaire and amounting to an indirect waiver of public revenue.