STF reaffirms ANTAQ’s regulatory authority and restores the legal effect of Resolution 72/22 on the SSE

The Second Panel of the Federal Supreme Court (STF) unanimously denied the internal appeal filed by the Brazilian Federal Court of Accounts (TCU) and fully reinstated the legal effect of ANTAQ Resolution No. 72/22, reaffirming the possibility of charging the Container Segregation and Delivery Service (SSE). The controversy centered on the actions of the TCU, which had ordered the annulment of the provisions of the resolution related to the SSE, alleging improper purpose, duplicative charges, competitive impacts, and procedural flaws in the agency’s regulatory process.

In the ruling published on Tuesday (10), the STF held that the TCU exceeded the limits of its constitutional authority by replacing ANTAQ in a regulatory decision that falls within the agency’s exclusive competence. In the leading opinion, Justice Dias Toffoli emphasized that courts of accounts cannot, under the guise of exercising their supervisory functions, assume the role of regulatory agencies. According to the rapporteur, it is not for the courts of accounts “to step into the shoes of regulatory agencies, making decisions on regulatory matters that have been entrusted to those agencies and not to the courts themselves,” also noting that ANTAQ has greater institutional and technical capacity to address the matter, having conducted a broad, transparent regulatory process based on public hearings, which resulted in Resolutions 2,864/12, 34/19, and 72/22.

The decision further highlighted that, over the past years, ANTAQ has consolidated consistent regulatory parameters for the sector, including mechanisms for competition protection and provisions enabling the agency to set maximum prices for the SSE in the event of indications of abusive practices. The Court observed that, by invalidating the possibility of charging the SSE, the TCU encroached upon powers belonging not only to ANTAQ, but also to CADE, whose mission includes safeguarding competition. The opinion adds that CADE itself considers that charging the SSE is not inherently unlawful in the abstract, with assessments of potential abuse requiring a case-by-case analysis.

The Shipping & Port team at Souto Correa Advogados is closely monitoring the developments related to the decision and remains available to address any questions on the matter.