Supreme Court authorizes ports to charge segregation and delivery fee

The Supreme Federal Court (STF) authorized on Tuesday (7) the collection of the Serviço de Segregação e Entrega (SSE) — also known as the Terminal Handling Charge 2 (THC2) — in Brazilian ports. The fee is charged by port terminal operators on imported containers to cover the movement of cargo within the terminal, from the yard to the gate, until delivery to the importer.

The decision, issued by Justice Dias Toffoli, overturned a ruling by the Federal Court of Accounts (TCU) that had previously prohibited the charge, thereby reinstating the validity of Resolution No. 72/2022 of the National Waterway Transport Agency (Antaq).

Toffoli’s ruling came in response to a petition from the Brazilian Association of Container Terminals (Abratec), which argued that the TCU’s interference encroached on Antaq’s exclusive regulatory authority. The minister stated that the Court of Accounts “acted as a regulator, a role that belongs to Antaq,” and that “while Antaq operated within its institutional competence, the TCU overstepped its own, invading the jurisdiction of the regulatory agency and potentially that of the Administrative Council for Economic Defense (Cade).”

Earlier this year, in August, Toffoli had ruled differently, maintaining the prohibition after initially determining that Abratec lacked standing to appeal. In this new decision, however, he reversed his position.

Background

The TCU, through rulings 1.448 (2022) and 1.825 (2024), had ordered Antaq to suspend provisions allowing the SSE charge, arguing that the fee created “an artificial cost imposed by a dominant competitor on its rival,” distorting competition between port terminals and inland customs facilities. The Court of Accounts had also claimed that the charge violated Brazil’s Economic Freedom Act and antitrust laws.

Toffoli, however, ruled that such assessments fall under Antaq’s and, if necessary, Cade’s jurisdiction — not the TCU’s.

The SSE is separate from other port fees. It is not part of the Box Rate (paid by shipping companies to terminals for moving cargo between the ship’s hold and the yard) or the standard THC (covering the movement between the vessel and the yard stack). Instead, the SSE compensates for additional import operations, such as removing the container from the stack, positioning it for customs inspection, processing documentation, and physically delivering it to the importer’s truck.

The STF decision restores Antaq’s autonomy to regulate and oversee the service, including setting price caps if it identifies anticompetitive practices. With the annulment of the TCU ruling, port terminals are once again authorized to charge the SSE.

However, the decade-long dispute is not over — parties may still appeal Toffoli’s ruling or request that the case be reviewed by the full STF bench.

Source: A Tribuna

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