O Abuso de Poder Econômico no Estado Democrático de Direito : Uma Análise a partir da Livre Iniciativa e da Função Social da Empresa

The dissertation examines the abuse of economic power from the meaning that the principles of social function of enterprise and of freedom of initiative assume in the Brazilian Constitutional Democracy, especially in view of the constitutional principle that conditions the exercise of an economic activity to the goal of assuring a dignified life to everyone. The research, starting from the tension between the functional and individual dimensions that are inherent to the exercise of free enterprise, aims to reach an interpretation that assures coherence and applicability to the constitutional economic order, a concern that is crucial in the matter of repression to the abuse of economic power, an issue in relation to which the importance of the constitutional principles is often mitigated due to reasons of political or economic nature. In view of the legal principles of the constitutional economic order, which are both deontological and binding, the dissertation points to the insufficiency of the approaches to the abuse of economic power, which are dominated by the political conveniences of governments or the search for economic efficiency without proper reflection. This analysis ends up favoring consequentialist or utilitarian points of view, which are usually indifferent to the Law and that may lead to harmful results related to distributive justice and even consumer protection. The Constitutional Democracy necessarily imposes limits to economics and politics, orienting them to the fulfillment of constitutional principles and fundamental rights. It is under this perspective that this dissertation analyses the meaning of freedom of initiative and of social function of enterprise, and raises, from the point of view of constitutional theory, certain elements that must be considered for the distinction between regular and abusive exercise of economic power.