The Brazilian Antitrust Authority (CADE) applied a fine to two port operator companies operating at the Port of Santos, arguing that the collection for services of segregation and delivery of containers, known by the acronym THC-2 (Terminal Handling Charge) in relation to the Customs Bonded Dockside Terminals (TRAs) at the Port of Santos is anticompetitive.
Discontented with the fine imposed, both companies filed an action challenging said collection. An appeal was filed against the first instance decision, which had confirmed the antitrust authority's decision, tried by the 4th Panel of the Regional Federal Appellate Court of the 3rd Region – TRF3 (appeal no. 0014995.56.2005.4.03.6100 SP).
The Justices who decided the appeal resolved to annul the antitrust authority´s decision, warding off the fine applied to the port operators.
It has been highlighted in the appellate decision that the THC-2 cannot be mistaken with the THC. The TCH refers to the movement of the container, which leaves the ship´s hold and the subsequent placement of said container in the existing pile of containers at the terminal. The THC-2, on its turn, refers to the movement of the container from the pile in which the container was placed for a segregate placement at another part, in order to meet the request of the customs authorities. According to the Justices' opinion, the THC-2 would therefore entail an extra cost for the port operator, not included in the THC, which would allow its collection from the beneficiary of the service, under the penalty of unjust enrichment.
The appellate decision goes on affirming that the Antitrust Authority (Cade) is not incumbent upon intervening in the issue relative to the THC-2 charges, considering the Antitrust Authority's conduct abusive. It has also been observed that the matter under controversy would fall within the jurisdiction of CODESP and ANTAQ, applying to the case the ANTAQ Resolution no. 2389/2012, which lays down regulatory parameters to be abided by in the performance of services of movement/handling and storage of containers and volumes, in public use facilities at organized ports and sets out the distinction between the services included in the box rate and the other services such as segregation and delivery of containers demanded or requested by clients or users.
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