The Brazilian National Agency of Waterway Transportation ("ANTAQ") has approved Resolution No. 57/2021 ("Resolution 57"), published in the Union Official Gazette on September 20, 2021. Resolution 57 establishes the transfer procedures of corporate control and ownership of "organized port" concessions, port facility leases and private port facility adhesion contracts.
Resolution 57 supports the existing legal provisions in the port legal framework in force in the sense that the transfer of corporate control, direct or indirect, of a company entitled to a contract of an "organized port" concession, a port facility lease or a private port facility adhesion contract depends on the previous analyses and approval of ANTAQ. However, the ownership transfer of these contracts, in addition to ANTAQ's analysis, depends on the approval of the granting authority.
Under Resolution 57, ANTAQ's approval is no longer required for the following operations: (i) corporate control transfer of a company holding a transition contract in "organized ports"; (ii) corporate control transfer of a company entitled to a temporary use contract; (iii) change in the corporate structure that does not result in a change in corporate control; (iv) corporate control transfer due a change in the corporate structure exclusively within the scope of the same corporate group that holds the relevant grant; (v) fiduciary lien, pledge of shares or quotas issued by the assignor, by the grant holders, within the scope of financing operations for raising funds; and (vi) corporate control transfer of certain waterway transport support facilities.
The administrative procedure for previous analysis of the ownership transfer, as provided for in Resolution 57, initiates with a joint request by the assignor and the assignee, which must be submitted through a digital form to be accessed on the ANTAQ website (document standards or electronic forms to standardize and simplify the request will be released within 180 days). Along with the request, several documents listed in Resolution 57 must be submitted to ANTAQ, which vary according to the type of contract being transferred and if the transfer is of the ownership or of the corporate control. In addition to these mandatory documents, ANTAQ may request the submission of complementary documents during the administrative procedure.
Other specific documents must be presented if the assignee is a Private Equity Investment Fund (FIP), an open or closed supplementary pension entity or other national financial institution. Foreign legal entities interested in obtaining corporate control, in turn, must submit a statement certifying the connection between the administrative-legal documents normally required of Brazilian legal entities and the corresponding ones in the country of origin, also indicating the corresponding validity.
Once it has received the request, ANTAQ will issue, as part of the ownership transfer procedure, the documents proving the compliance of the assignor and the assignee before ANTAQ; the assignee before the National Treasury, the FGTS and the Labor Court (the last only for contracts of concession or lease); and the assignor before the administration of the "organized port" where the facility is located.
Then the relevant area of ANTAQ will perform the technical analysis. At this phase, the following will occur: (i) the verification of the compliance of the submitted documents; (ii) in the case of ownership transfer of a concession or lease contract, the evaluation of whether the assignee has fulfilled all the conditions of legal qualification, economic and financial qualification, timely payment, tax and labor compliance and technical qualification, as provided in the contract and in the respective bid notice; (iii) in the case of ownership transfer of an adhesion contract, evaluation if assignee has fulfilled the legal, timely payment, and regulatory requirements for obtaining the authorization; and (iv) the technical statement regarding damage, threat of injury, negative effect on competition or infringement of the economic order in the port sector resulting from the transfer of corporate control or ownership.
The competitive analysis is carried out with the purpose of identifying if the intended operation will result in loss or elimination of competition in a substantial part of the relevant market. It will be dismissed in cases of transfer of ownership within the same corporate group, previous approval of the operation by CADE and transfer of corporate control carried out exclusively between existing partners, without the entry of a new partner.
Finally, in the specific cases of transfer of control (to a company that does not belong to the same economic group), in accordance with ANTAQ Resolution No. 7.992/2020, the administrative procedure must be completed within 90 days under penalty of tacit approval. Whereas, the transfer of control must be completed within 180 days after the publication of ANTAQ's approval in the Official Gazette, under penalty of its revocation, unless restricted by another public authority.
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This article provides information and comments on legal issues and developments of interest. The foregoing is not a comprehensive treatment of the subject matter covered and is not intended to provide legal advice. Readers should seek specific legal advice before taking any action with respect to the matters discussed herein.