A vinculação dos municípios aos direitos sociais e os royalties do petróleo

Abstract

Search to analyze if the Municipalities are obliged to the social fundamental rights concerning the application of the royalties of the petroleum and of the natural gas. With respect to the method, it opted for the dialectic and for the qualitative approach. Concerning the research techniques, it was chosen the indirect documentation, through the research documental constant of the analysis jurisprudencial of decisions of Federal Supreme Court. Already as for the bibliographical research it was made rising in the doctrine homeland and foreigner (especially german and portuguese). It was reached the following conclusions. It remains peaceful with the article 1st of the Constitution that the Municipalities integrates the Federation, in parity with the others federal beings. The "local interest" foreseen in the article 30 link with the fundamental rights, excessively the social ones concerning to the education and the health. Human rights are universal and they locate in the international sphere and the fundamental ones in the constitutional text. They possess four dimensions: the first regarding the civil and political rights; the second is relative to the social, economical and cultural rights; the third regarding the rights to the development, to the environment, to the peace and the fraternity; the questionable rights of fourth dimension consist of the right to the democracy, to the information and to the pluralism. The term dimension is preferred and not generation to avoid the misunderstanding of understanding that there is exclusion of rights, because exist sum of them. The Constitution consecrated, negative and positive, social fundamental rights though these because depend on state installments are not rendered concrete. To avoid this, constitutional texts of Germany, of Portugal and of Spain expressly obliged the public Powers to the fundamental rights. In spite of the brazilian Constitution doesn’t have identical disposition, all of the state functions (Legislative, Executive and Judiciary) they are obliged to the fundamental rights, being this the sense of the beginning of the immediate application consecrated in the §1st of the article 5th. The effective crisis of the social State appears for a new paradigm in that the materialization of the social fundamental rights turns indispensable to consider the obligation of the public entities and to move away theories that when badly interpreted can impede public politics: of the constitutional 21 programmatic norms; of the reservation of the possible and of the separation of the powers. It becomes relevant the constitutional right the royalties, foreseen in the §1st of the article 20, concerning the exploration and the production of the petroleum or of the natural gas, to be paid by the concessionaries and destined to States, to Federal district, to organs of the Union and to the Municipalities, above all the resources noticed by this last one that they don't have anymore an advantage foreseen in the legislation, because the "Law of the Petroleum" revoked the Law nº 2.004/1953, that it foresaw your application in six categorical spheres. The country was almost long seven decades to reach it dreamed self-sufficiency in petroleum, it remains the hope that the Municipalities and the public entities don't take so much time to become aware from their obligation to the social fundamental rights in the application of the finite royalties in public politics to accomplish them, after all it is only apparent the norm inexistence in that sense, should leave besides the formalistic positivism and to take into account that the Right is an open system.