Limites da teoria da reserva do possível : garantia do mínimo existencial na efetivação do direito fundamental à saúde

Abstract

The present study investigates the application of the theory of reserve for contingencies by the Supreme Court (Brazil) in cases involving the right to health, using as a parameter the judgment by the German Federal Constitutional Court on the case known as numerus clausus. The research theme came from concerns raised during graduation when verifying that, although the theory in question originates in Germany and is not restricted to economic aspects, in general, in Brazil, the reserve for contingencies is invoked based on the lack of financial resources to fulfill state’s obligations. Bibliographical, jurisprudential and desk research was carried out, allowing to verify that the German Court elects, in general terms, the standard of the reasonableness of claim and respect for the limits imposed by the Constitution, while the Federal Supreme Court (Brazil) values, in general, if there is a violation of the right to basic conditions of life, if there is objective proof of economic and financial incapacity and whether the expectations are reasonable. Therefore, in Brazil, the main focus is given to the financial aspect of the thesis, but the observation of the original aspect - the reasonableness of the claim - is not absent. Furthermore, the right to basic conditions of life, in most cases, is the foundation that rules out the application of the theory to the concrete case. It appears that there are great expectations around the thesis to be fixed by the STF in the RE No. 566.471/RN, which may bring objective parameters for cases of free drug supply.