STF overturns TCU decision and reaffirms Antaq’s power to regulate port charges

Minister Dias Toffoli of the Federal Supreme Court (STF) reinstated the validity of the National Waterway Transport Agency’s (Antaq) rules on the collection of a fee for the segregation and delivery service (SSE) of containers by port terminal operators. The decision overturns a ruling by the Federal Court of Accounts (TCU). The rules, set forth in Antaq Resolution No. 72/2022, had been suspended by the TCU.

The SSE is a fee charged for moving containers from a common stack to the importer’s truck. According to the TCU, this charge would constitute a violation of economic order, since the service is available for both import and export operations, but these fee is applied only when the cargo enters the country. The cargo owner and the customs terminal cannot choose the port operator and are subject to the terminal’s rates.

In his decision, Toffoli stated that by prohibiting the collection of the SSE, the TCU exceeded its institutional powers and imposed a solution to a regulatory issue within Antaq’s jurisdiction. According to the minister, the agency has greater institutional capacity than the TCU to establish rules governing port services.

The rapporteur also highlighted that during the drafting process of Resolution 72/2022, the Administrative Council for Economic Defense (Cade) acknowledged that charging the SSE, in itself, is not unlawful, and that any abusive practices should be evaluated on a case-by-case basis (MS 40087).

Source: Valor Econômico

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