Consensualidade e controle externo: limites constitucionais da atuação dos Tribunais de Contas e reflexões sobre os mecanismos consensuais à luz dos princípios da mediação

Abstract

This article examines the constitutional limits of consensual mechanisms adopted by Brazilian Courts of Accounts in light of the constitutional debate raised in Claim of Noncompliance with a Fundamental Precept (ADPF) No. 1183, which challenges the constitutionality of the Federal Court of Accounts' Secretariat for Consensual Solutions and Conflict Prevention (Secex-Consenso). The study aims to investigate whether the growing use of consensual mechanisms in Brazilian Public Law can be reconciled with the constitutional functions assigned to Courts of Accounts, particularly regarding the preservation of administrative discretion and the distinction between oversight and administrative decision-making. The research adopts a qualitative legal-dogmatic approach based on bibliographical and documentary analysis, including legislation, legal scholarship and the main submissions filed in ADPF No. 1183. The study concludes that the constitutional concerns identified in the case do not require the rejection of consensual mechanisms, but rather highlight the need for adequate procedural safeguards. In this context, it argues that certain core principles of mediation—especially party autonomy, the facilitator role of the neutral third party and the protagonism of the parties in developing consensual solutions—may provide a useful theoretical framework for reflecting on the procedural improvement of consensual mechanisms currently employed in external public oversight.