São Paulo in Contramão: the illegality of banning motorcycle passengers via apps

by Andrea
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Instead of promoting intelligent and inclusive regulation, the City of SP opts for retrograde measures that only increase the problems of mobility and informality

ALOISIO MAURICIO/FOTOARENA/ESTADÃO CONTÚDO
Motorcycle transportation via apps is an efficient model and an example of innovation that challenges traditional structures

The recent controversy surrounding the São Paulo City Hallled by Mayor Ricardo Nunesand the service of paid transportation of passengers by motorcycles through applications exposes a series of legal and administrative errors that deserve analysis. Based on a municipal decree that prohibits such activities, municipal management seeks to restrict the operation of these services, justifying the measure in the name of public safety and regulation. However, when analyzing the legal and constitutional foundations, it becomes clear that the City Hall’s position lacks technical support and violates fundamental principles of the Brazilian legal system, harming companies, workers and users.

  1. Regulatory Competence in Passenger Transport

As provided in the Federal Constitution, the competence to legislate on traffic and transport belongs exclusively to the Union. The Brazilian Traffic Code (CTB), as a federal standard, already comprehensively regulates transport by motorcycles, including safety requirements, such as the use helmets, high visibility vests and the suitability of the vehicle for transporting passengers.

The Federal Supreme Court (STF), in recent precedents, has already reaffirmed that municipalities cannot issue rules that, under the pretext of local regulation, interfere in matters of exclusive competence of the Union, as provided in art. 22, XI, of the Federal Constitution. Municipal decrees, such as the one that City Hall seeks to use to prohibit motorcycle services through applications, do not have sufficient normative force to override or alter federal regulations, under penalty of unconstitutionality and violation of the supremacy of the Constitution. The municipality can, at most, regulate local operational aspects, but can never prevent the exercise of an economic activity legally authorized by national legislation.

  1. Economic Freedom and Right to Work

Federal Law No. 13,874/2019 (Economic Freedom Law) enshrines, among other principles, freedom of initiative and the reduction of bureaucratic obstacles to the exercise of economic activities. The municipal measure directly contradicts these principles by prohibiting, in a generic and disproportionate manner, an activity that meets all legal requirements to be carried out.

Furthermore, art. 5th, XIII, of the Federal Constitution guarantees the free exercise of any work, trade or profession, as long as the qualifications provided for by law are met. The attempt by the City of São Paulo to block transportation by motorcycles is not based on any technical qualification required by legislation, constituting an arbitrary restriction on the rights of workers who depend on this modality for their subsistence.

  1. The Principle of Proportionality

The principle of proportionality, widely recognized as a guide for administrative actions, requires that restrictive measures are necessary, appropriate and proportionate in relation to the intended objective. The safety justification presented by the City Hall does not meet these criteria, especially considering that motorcycle transport, widely used in Brazil for both passengers and deliveries, is already regulated by the Traffic Code

Brazilian (CTB). The art. 56 of the CTB establishes the necessary safety conditions for the transport of passengers on motorcycles, including the mandatory use of protective equipment and compliance with technical limits.

Instead of prohibiting the activity, the City Council could adopt less restrictive measures, such as establishing training requirements, more effective inspection or educational campaigns, actions that would be more proportionate and aligned with the legal system. The imposition of an absolute ban, in addition to being disproportionate, violates fundamental rights by curtailing the right to work and harms both workers and users. This measure, far from solving structural problems of security and urban mobility, tends to worsen informality and the associated risks, directly affecting the most vulnerable population.

  1. Economic and Social Impact of the Measure

Prohibiting motorcycle transport via apps has direct impacts on the local and national economy. This mode of transport is an affordable and efficient alternative for thousands of users, especially in large urban centers like São Paulo, where mobility problems are intense. Furthermore, this activity represents a source of income for thousands of workers, many of whom already face precarious economic conditions.

By imposing this ban, the municipal administration ignores the country’s social and economic reality, pushing workers into informality and harming a population that depends on accessible services for quick travel.

  1. The Misuse of Decrees to Restrict Rights

The decree used as a basis by City Hall to prohibit paid transportation by motorcycles is legally questionable. Decrees, as instruments of administrative regulation, do not have normative force to restrict rights or create obligations that are not expressly provided for by law. This attempt to subvert the hierarchy of norms violates the principle of legality, enshrined in the Federal Constitution, and compromises legal certainty.

  1. The Role of Technology in Urban Mobility

The adoption of digital technologies and platforms in the urban mobility sector represents a natural evolution to meet the needs of the population. Rail transport is not only an efficient model, but also an example of innovation that challenges traditional transport structures, which are often inefficient and expensive.

By trying to stop this progress, São Paulo City Hall is putting itself against modernization and development. Instead of promoting intelligent and inclusive regulation, which takes advantage of the benefits of this modality, it opts for retrograde measures that only increase the problems of mobility and informality.

It is possible to conclude that the prohibition of paid passenger transport by motorcycles via apps, based on a municipal decree, proves to be a measure incompatible with the precepts of the Brazilian legal system and with the collective interests of society. Instead of promoting advances, it goes backwards in the search for modern, effective and fair solutions to the challenges of urban mobility. It is essential that the public administration adopts a stance that respects fundamental rights and prioritize the inclusion of innovations that benefit workers and users. Persisting in illegality is going against the grain of development.

*This text does not necessarily reflect the opinion of Jovem Pan.

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