Bill authorizing the sale of maritime areas may affect port terminals

The Proposed Constitutional Amendment (PEC) 3/2022 is causing apprehension among business leaders in the port sector because, according to them, Private Use Terminals (TUPs) would be directly affected. The so-called Beaches PEC proposes the end of federal ownership of maritime lands, their free transfer to states and municipalities, and permission for individuals to purchase these areas.

The proposal was approved in the Chamber of Deputies in 2022 and is currently under consideration by the Senate's Committee on Constitution and Justice (CCJ). There is no defined date for voting.

According to the president-director of the Association of Private Port Terminals (ATP), Murillo Barbosa, the matter requires careful analysis by the National Congress, involving all public and private stakeholders.

"Although the justification for the proposal encompasses aspects from tax matters to modernization of legislation involving the so-called maritime lands, all practical implications in a potential amendment to the constitutional text must be taken into account".

Barbosa also advocates that, if the PEC is approved, "the purchase of maritime areas by occupants should not be compulsory" and that, "in the event of opting for purchase, the possibility of installment payment should be offered".

The executive director of the Brazilian Association of Container Terminals (Abratec), Caio Morel, believes that the proposal tends to bring uncertainties, legal insecurity and potential cost increases to port terminals.

"Without providing any efficiency gains or cost reductions, at a time when the sector is calling for actions to improve the regulatory environment to attract new investments".

The executive president of the Brazilian Association of Liquid Terminals (ABTL), Carlos Kopittke, points out that if approved the PEC could generate "significant impacts on port terminals", such as changes in regulatory structure, investments and modernization, operational costs, tariffs, prices and even labor issues.

Exception

Specializing in Port, Maritime and Customs Law, lawyer Thiago Miller explains that the PEC provides an exception regarding public ports. "Areas located in organized ports will remain under federal control since they operate under concession regime and serve the public interest".

Regarding port tariffs, Miller states that initially "no direct interference is envisaged. However, the greatest impacts may be felt by port facilities located outside the organized port, in private use terminals (TUPs), which operate under authorization regime".

The specialist also says that some impacts are in the obligation to acquire the portion under federal control (17% in the case of leasing and up to 100% in the hypothesis of occupation), with no detail on how much this will financially burden the terminals.

"This will impact the prices practiced in TUP. It seems to us that the activity of the TUPs was not considered in the formatting of the PEC, which is generating legal uncertainty in the sector".