In a move aimed to reduce bureaucratic red tape, Brazil's National Waterway Transportation Agency (ANTAQ) reached an understanding, through Ruling No. 662/2024 (SEI Process No. 50300.015705/2023-10), to allow the subcontracting of services related to port operations within Private Use Terminals ("TUPs") and the leasing of areas within TUPs.
Adhesion contracts, which authorize the operation of a TUP by a private company, usually contain standard clauses that prohibit sub-authorization. These clauses state that third parties may only develop ancillary or complementary activities—in addition to the implementation of associated projects—but not core activities (i.e., port operations).
Due to such contractual provisions (in addition to the regulatory prohibition on sub-authorization, provided for in ANTAQ Resolution No. 75, Art. 37, IX), the ability of third parties to perform operational activities and/or receiving areas in assignment has already been a topic of consideration by ANTAQ, given the controversy over whether such private contracts would constitute sub-authorization, and whether, as a result, their execution would constitute non-compliance with the adhesion contract, subject to penalties.
In this sense, in different specific cases, ANTAQ sought to distinguish the technical operation and maintenance of the terminal and its infrastructure (which could be subcontracted) from the commercial operation of the TUP, which should always remain with the holder of the adhesion contract.
Thus, ANTAQ's recent position—which allows third parties to perform activities such as operation of the area and cargo handling and storage, in addition to the option to lease areas within the TUP—tends to consolidate the regulatory understanding of the subject, and demonstrates an evolution and flexibility in the agency's understanding, providing a little more legal certainty for such arrangements.
As explained in the vote of Reporting Director Eduardo Nery in the judgment of the aforementioned ruling, such permission seeks to align with the demands of the sector by allowing large TUPs to lease part of their area to specialized companies, diversifying the provision of services and the use of infrastructure, while subcontracting the operation of companies with specific technical capacity to deal with sensitive operations.
Specifically, in Ruling No. 662/2024, ANTAQ established the understanding that, in order for the operational activities provided for in an adhesion contract to be subcontracted to third parties, the following requirements must be met: (i) the authorized party must remain fully liable before ANTAQ and other competent authorities; (ii) there must be no misrepresentation of the purpose of the authorization or transfer of regulatory responsibility; (iii) ANTAQ's authority to intervene and adopt appropriate measures whenever necessary must be preserved; (iii) there must be no clause in the adhesion contract prohibiting port operations by third parties; and (iv) a copy of the service provision and lease contracts must be sent to ANTAQ within 30 days of their execution.
As this is a recent development—and considering that there may still be clauses in current contracts that prevent the operation of TUPs by third parties—a more in-depth analysis of an adhesion contract, the intended legal and contractual structure, and its regulatory compliance is recommended.
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