Brazilian court rules against charge for “espelho d’água” use at ports

The charge imposed by Brazil’s Secretariat of Federal Heritage (SPU) for the use of “espelho d’água” — the body of water adjacent to areas granted to private-use terminals (TUPs) — had long been viewed as unwarranted and a source of legal uncertainty. Experts interviewed by A Tribuna consider the recent decision by the Federal Regional Court of the 1st Region (TRF-1), which annulled this type of fee, to be the correct one.

According to Thiago Miller, lawyer and partner at the Ruy de Mello Miller (RMM) law firm, specialized in maritime, port and regulatory law, the fee, introduced in 2011, “created major uncertainty.”

“The terminals already had contracts signed or in the process of being signed without any charge for the use of the water. Strictly speaking, it cannot be considered a paid concession of part of an authorization. Moreover, maintenance costs for the asset — which would be the purpose of such a charge — are already borne by the terminals,” he said.

Miller added that the sea is for common use and cannot be treated as a proprietary asset. “The decision represents an important signal from the judiciary in favor of legal certainty for port enterprises.”

Maritime and port law specialist João Paulo Braun agreed, stating that the charge was unfounded from the start. “The SPU’s attempt to demand payment from port terminals for the use of the so-called espelho d’água was never legitimate, since this right naturally derives from the concession or authorization to operate port activities.”

He added that the ruling is correct and brings relief, especially in the current context of global trade, marked by geopolitical tensions, rising tariff barriers, and higher logistics costs.

“Brazilian products need to remain competitive, and any such charge would inevitably be passed along the logistics chain and foreign trade, making domestic goods more expensive while also increasing import costs,” Braun said.

The legal case

The TRF-1 decision, dated October 22, confirms a previous ruling from October 2024 in a lawsuit filed by the Brazilian Association of Port Terminals (ABTP), which has now become final.

The ABTP took legal action in 2012 after the SPU issued Ordinance No. 24/2011, creating an annual fee for the use of public waters — including organized port areas, anchorage zones, ship mooring areas, port access channels, and berths.

“There was no charge before. We tried to resolve the matter administratively, but there was no alternative other than going to court. Now, with the final judgment, we finally have a decision that ensures stability and predictability for the port sector,” explained ABTP president Jesualdo Silva.

He said the court’s ruling is definitive, leaving no room for appeal by the SPU. According to Silva, there had been uncertainty about whether the 2024 decision applied only to members of the association at the time the lawsuit was filed or only to terminals under TRF-1 jurisdiction.

“All of that has now been clarified. The ruling clearly establishes that the SPU cannot charge the espelho d’água fee to any ABTP member, regardless of when they joined or where they operate in Brazil,” Silva emphasized.

The court also reaffirmed the understanding that the seas are not part of the Union’s patrimonial domain. “The government has a political role in these areas, but it does not hold property ownership. Therefore, unlike coastal land, it cannot charge fees for the use of these waters,” the ABTP president explained.

Silva added that the SPU was notified to comply with the ruling within 15 days from the court’s October 22 order. “ABTP will closely monitor the process to ensure these measures are effectively implemented,” he said.

No response

The Ministry of Management and Innovation in Public Services (MGI), which oversees the SPU, was contacted for comment but had not responded by the time this edition went to press.

Source: A Tribuna

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