Public-Private Partnership in the Road Sector: a study on the agreement between the essence of the contract object and the legal form of contracts in Brazil

The Brazilian National Treasury, through Decree No. 614/06, established the Standards for the consolidation of public accounts applicable to PPP contracts, recommending the adoption of the essence over form criterion, focusing on the essence of the economic relationship between contracting parties. However, an analysis of the essence of the contractual purpose was considered necessary because, in the final analysis, it is the phenomenon that needs to be accounted for. The methodology consists of a descriptive, exploratory, bibliographic and documentary research. Primary and secondary data were collected with a view to their structure in four theme units, so as to analyze the context in which PPP contracts emerged in Brazil. Through this research, it could be identified that there is no agreement between the essence of the contractual purpose and the legal form of the PPP contracts in the creation of highway structures in Brazil. Both the terms of Law No. 11.079/04 and those of Decree No. 614/06 delimit the analysis of the contract’s essence, inducing to the supremacy of formal aspects over essence in the analysis of the phenomenon that has to be accounted for.