The National Waterway Transport Agency (Antaq) denied that it wants to intervene in the commercial relationship of port terminals, as suggested by the agency's proposed rules that have been rekindling the discussion about the port legal model – whether it is a public service or a regulated economic activity.
The crux of the matter are two proposals for norms placed in public hearing that, in the sector's view, promote undue interference by the government in the activity. Both leased and authorized terminals (which operate, respectively, public port via prior bidding and private areas) complain about Antaq's infralegal attack, which would be in disagreement with the Ports Law, sanctioned in 2013 to unlock private investments.
Faced with the uproar, Antaq extended by 15 days – until December 8 – the deadline for the public consultation to refine resolutions 3.707 and 3.708. “No one will go into the merits of the conditions to be agreed between the private parties. If we see that the newsroom is giving rise to doubts, the necessary adjustments will be made”, said the director of Antaq, Fernando Fonseca.
As anticipated by Valor, the proposed rules allow the government, for example, to change lease contracts unilaterally and modify the provision of services. In addition, it limits the readjustment of prices charged for its customers' terminals. “That doesn't exist in a capitalist system”, says the president of the Brazilian Association of Port Terminals (ABTP), Wilen Manteli, representative of tenants and authorization holders.
The scream is greater in the segment of authorized terminals, the TUPs, as they are investments in which the infrastructure does not depend on the public power. “Regulation is too much for us”, says the president of the Association of Private Port Terminals (ATP), Murillo Barbosa. According to him, Antaq is exempting the TUPs from the same rules applied to tenants, who exploit the public good through bidding.
One of the norms says that the TUPs must provide services to those who seek the installation. “What if I have a contract with an exporter that requires exclusivity, so I can't serve his competitor? I don't need to answer, I'm not a leased terminal”, says one of them.
Despite being criticized for regulatory excess, Antaq understands that both leased and private do not provide a public service, but carry out regulated economic activity. According to the director-general of the agency, Mario Povia, the provision of public services provides for a concession, and the law only mentions concessions for organized ports, which is the entire waterway complex. Leases are “pieces” of the organized port.
The issue is not resolved. The TCU already has an understanding of the pro-public service line, the same position defended by port users, such as specialist lawyer Osvaldo Agripino. “This discussion is a setback, the matter was settled. Public is the heritage [ex: the land], the activity is completely private”, says Manteli.
Source: Valor Econômico
By Fernanda Pires | of Santos
