The contractual nature of the railway authorization in Brazilian Law 14,273/2021 and its impacts on the transfer of ownership through expropriations and administrative easements

Abstract

The central theme of this article is the use of administrative authorization as a legitimate contract for the transfer of ownership in expropriations and administrative easements in the railway sector. Traditional doctrine tends to view the institution of authorization as a unilateral, discretionary, and precarious act, practiced in the exercise of police power, devoid of a contractual nature for the delegation of public services, such as concessions and permissions. However, the most current notion sees the institute as a legitimate adhesion contract, which has already been used in several sectors, such as telecommunications and ports, based on art. 21, items XI and XII of the Brazilian Constitution. For this study, the Brazilian railway system will be analyzed from the combination of traditional instruments of intervention and suppression of private property, such as easement and expropriation, due to the recent publication of Law no. 14.273/2021. The methodological research focuses mainly on the bibliographical review and the interpretation of legal norms, jurisprudence, and doctrinal understandings, in addition to the analysis of public notices, contracts and similar documents found on the websites of state entities.