HomePublicationsInsightsAgency wants to control port tariff in private terminal

Agency wants to control port tariff in private terminal

The National Waterway Transport Agency (Antaq), which regulates the port sector, presented a proposal for a rule that, if approved, will increase control over private activity in ports. The norm provides that leased terminals, located in public ports, may not increase, without authorization from the agency, the prices of contractual services above the accumulated by the reference index, under penalty of a fine. The foreseen sanctions range from R$50 to R$100.

The private sector sees the proposal as an attempt by the State to control prices between private agents. According to Antaq, the measure is an adaptation to the new supervisory functions of the agency, resulting from the Law of Ports, and will focus on the provision of services by current and future terminals.

The agency says that, before, this role was performed by state-owned port authorities located in ports. Valor found that, in practice, dock companies only performed arbitration when requested by the parties. In the recent history of the port of Santos (SP), for example, the local state-owned company arbitrated only one case. “Price is free, it has always been regulated by the market, if not it becomes a tariff”, says an expert in the area. Antaq also acted through complaints from users, analyzing whether the readjustments were appropriate.

The Brazilian Association of Port Terminals (ABTP) is contesting the rule. He sees in the instrument an extrapolation of the function of Antaq. According to the entity's president, Wilen Manteli, it is up to the terminal to run the risk of charging higher prices.

“The agency must avoid abuse of economic power, now it wants to manage the terminal. It is not by limiting profit that we are going to generate more jobs and income”, she says. For Manteli, the measure violates the Constitution, which ensures free competition, and against intraport and interport competition, provided for in the sector's new regulatory framework.

The proposal will remain open until tomorrow. It amends Resolution No. 3.274, in force since February, which provides for the inspection of port service provision and defines administrative infractions. In that text, Antaq had already provided for fines of up to R$ 200 for those who “adopt abusive tariffs or prices, on non-transparent or discriminatory bases, or not reflecting the complexity and costs of activities”. In this case, the fine also applies to authorized terminals (approved without bidding, the so-called TUPs) and port authorities (which collect tariffs for the use of public goods).

Questioned about what would be “abusive prices” and on what basis it will assess whether the value is discriminatory, Antaq cited jurisprudence from the Administrative Council for the Defense of Competition (Cade). “An abusive price, for example, can occur when the principles of market rules are violated, potentially harming countless users, that is, as an infringement of the economic order”, he said in a note, “under the terms of the Antitrust Law”.

The February resolution stipulates, for example, a fine of up to R$ 50 to the lessee who fails to submit to Antaq the carrying out of projects and investments not provided for in the lease agreement. Entrepreneurs say that the text makes room for exaggerated control. “Even to build a bathroom I have to ask Antaq for amen”, jokes Manteli.

On the proposed resolution under discussion, the leased terminals complain about the need to request prior authorization from the agency if they want to start new services, under penalty of being fined. They argue that this would stifle the activity by increasing bureaucracy. “The shipowner, or the owner of the cargo, will not wait for the agency's analysis to decide where he will operate”, says one of them.

Companies have frequently launched customized services beyond the docks, according to the needs of each client. “I have more than 3.000 services. I serve the customer according to his needs”, complains an executive in the container area.

Antaq maintains that the port sector is characterized as an oligopoly, and may, in some types of cargo, be considered a monopoly. "It is up to the agency to protect the new services so that users are not harmed", says the agency.

Source: Valor Econômico

By: Fernanda Pires

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