Rua Raimundo Chaves, 2182 - 5º andar
Candelária, Natal
Rio Grande do Norte, Brasil
CEP: 59064-390
Telefone: +55 (84) 3344-7100
Fax:         +55 (84) 3344-7105

Travessa Sete de Setembro, 111 A
Centro, Jucurutu
Rio Grande do Norte, Brasil
CEP: 59330-000

Mina do Bonito - Jucurutu
Sítio Bonito, S/N
Zona Rural, Jucurutu
Rio Grande do Norte, Brasil
CEP: 59330-000

Rodovia KM 319, 790, S/N
Margem da Ferrovia LTNR
Sítio Belo Horizonte, Juazeirinho
Paraíba, Brasil
CEP: 58660-000
Telefone: +55 (83) 3382-1763

Avenida Portuária, S/N
Porto de Suape - Ipojuca
Pernambuco, Brasil
CEP: 55590-000
Telefone: +55 (81) 3527-4110

São Paulo
Rua Jerônimo da Veiga, 45 – 16º Andar
Itaim Bibi – São Paulo
São Paulo, Brasil
CEP: 04536-000
Telefone: +55 (11) 3167-2202

Ports and Terminals

The Port Modernization Law (Lei de Modernização dos Portos) implemented a private model of operation in the segment, through the modernization of the port and customs administration systems in the organized ports and also of the concessions, leases, permits and port activity authorizations.

According to the Port Modernization Law, the exploitation of the organized Brazilian ports is the responsibility of the Union, either directly or via concession agreements. Such concession agreements may be executed with its joint stock companies, such as CODESP, in the town of Santos, with companies controlled by states of the Federation (Paraná, for instance), or with private concession holders (Cia. Docas de Imbituba).

Via bids, such concession holders sign lease agreements (with a specified validity) with private agents, who will exploit port terminals inside the organized ports, under the “public use” modality.

With the Port Modernization Law, the port operator entity was established as  the legal entity that’s pre-qualified (over the organized port’s administration) to execute port operations inside the area of an organized port (“Port Operator”). As a result, port administrations started a pre-qualification process of the private port operators throughout Brazil.

Duly-qualified, such companies are also entitled to carry out all the activities linked to the loading and unloading operations inside the organized port. Such a stimulus to competition has led to a significant improvement in productivity rates and also to a shorter stay of boats in ports, thus allowing the optimization of the system as a whole, as well as an increased reliability in the arrival, mooring, and operation of the boats.

The Port Operator’s activity is subject to port regulation by the Port Authority Counsel (Conselho de Autoridade Portuária “CAP”), a body comprised of representatives of the government, port operators, and users of port and related services.

The Port Modernization Law assigns the following roles, amongst others, to CAP: (i) issuance of port exploitation regulation; (ii) homologation of port working hours; (iii) advising on the port’s proposed budget; and (iv) developing mechanisms for attracting loads.

Port Administration is carried out by the Union or by the entity of the organized port concession holder. It is the responsibility of the Port Administration to, amongst other functions, enforce the compliance of the concession agreements and inspect the port operations, to see that the services are performed with regularity, efficiency, safety and security, and respect to the environment, to set the port’s hours of operation, and to set and collect the portuary fees.

The private sectors also entitled to exploit - subject to ANTAQ’s authorization, for an indeterminate time defined (to last for as long as the conditions that justified the terminal’s implementation remain unchanged), private use terminals which are not inside the organized port’s area, or even inside the organized port, when the interested party is the holder of title for using the piece of land located thereon.

In 2005, ANTAQ issued Resolution 517, which sets forth criteria and procedures for authorizing the construction and extension of port terminals for private usage, in accordance with the Port Modernization Law, subject to the provisions of the legislation assigning related functions to other federal, state and municipal bodies and entities.

Terminals for private usage are classified as private usage for displacement of the authorized party’s own load, and mixed private usage, for displacement of partly owned and partly third- party owned loads.

Resolution 517 established the concept of own load (art. 1, IV) and included among the documents to be presented to ANTAQ, for technical empowerment, the applicant’s declaration specifying its own loads to be displaced in the terminal, with a minimum annual displacement justifying, per se, in conformity with a specialized technical study, its implementation and, concerning third-party loads, should there be any, the nature of these (art. 5, II, “c”). According to such a definition, the company shall, itself or through a person from its economic group, possess its own load in a sufficient enough amount to justify the request for authorization to ANTAQ.

In April of this year, ABRATEC (Brazilian Association of Public Use Container Terminals, or Associação Brasileira dos Terminais de Contêineres de Uso Público), filed a Motion of Non-Compliance with a Fundamental Prescription (ADPF 139) to the Supreme Federal Tribunal (Supremo Tribunal Federal) which questions the assignment, by ANTAQ, of an authorization for construction of  private terminal for companies with a low percentage of own load. ABRATEC argues that by allowing the construction of mixed-usage private terminals by companies with little own load ANTAQ would be allowing the creation of a disloyal competitive environment, since the private port terminals would be entitled to perform services for third parties without the obligations inherent in the carrying out of public services (continuity, universality, etc.).

On the other hand, part of the doctrine argues that ANTAQ, by means of its Resolution 517, has abused its legal powers, in  creating a demand (own load justifying per se the construction of a mixed usage private terminal) that is present in the Port Modernization Law. In addition to this, it argues that private terminals do not go against the constitutional principle of protection from competition since the Port Modernization Law allows free competition between private and public terminals. Furthermore, private terminals need to make large investments to start up their activities, whereas concession holders operate a ready-made structure from the start that even includes a client portfolio.