Court denies company’s request and maintains auction process for terminal in Santos

Tecon Santos 10 will occupy an area of 621,900 m² at the Saboó quay. The investment will be R\$ 6.45 billion, and the contract term will be 25 years, starting in 2026 (Alexsander Ferraz/AT)

The Federal Court denied the preliminary injunction requested by shipping company Maersk against the National Waterway Transportation Agency (Antaq). The decision was issued by Judge Paulo Cezar Neves Junior of the 21st Federal Civil Court of São Paulo. Maersk had filed a writ of mandamus requesting the suspension of the bidding process and the holding of a new public hearing for clarification regarding the bidding notice for the Tecon Santos 10 container terminal at the Port of Santos. The company is considering other appropriate legal measures.

The draft of the bidding notice, prepared by Antaq, establishes that the auction will take place in two phases, prohibiting the participation of container terminal operators with existing contracts at the Port of Santos in the first phase, with the aim of mitigating the risk of market concentration in case one of them wins.

As a result, the notice prevents Maersk, which is a shareholder of Brasil Terminal Portuário (BTP) alongside MSC, from participating in the initial stage of the process. Maersk would only be allowed to compete in the second phase, which would only take place if there are no bidders in the first. Even then, if successful, the company would have to sell its current operations in order to validate the concession for Tecon Santos 10.

Response Antaq responded to Maersk’s claims in court, refuting the shipping company’s allegations. In its defense, the agency stated that the competition-related matters had been widely discussed, with both technical and legal grounding, including public hearings held in 2022 and 2025.

Further in its defense, Antaq argued that the competitive issues had been thoroughly analyzed, with input from the Office of the Superintendent General of the Administrative Council for Economic Defense (Cade) and the Economic Monitoring Secretariat of the Ministry of Finance. The regulatory agency maintained that its administrative decisions are well-founded and aim to protect users from antitrust risks, ensuring the defense of public interests in terms of pricing and freedom of choice.

Ruling In his ruling, the judge accepted the arguments presented by the agency, emphasizing that the discussion regarding the competitive model for the terminal lease has been ongoing among government agencies and civil society since 2019, and that competition-related concerns were among the main topics addressed in previous public hearings, including the one held this year. The judge pointed out that the draft of the notice already included the possibility of a two-phase auction, and that Maersk’s claim that the restriction was “supervening” and “unprecedented” is unfounded.

The judge stressed that the company’s request was limited to the need for a new public hearing to discuss the restriction, and did not address the merits of the administrative decision itself. He argued that, under current legislation, a public hearing is not a mandatory stage of the bidding process, and that the legal provisions cited by Maersk do not require a hearing for every change in the draft, especially when the topic has already been subject to prior discussions.

Moreover, the ruling considered that granting the injunction could result in periculum in mora inverso — that is, a risk of harm to the public interest — since delaying the Tecon Santos 10 bidding process could negatively impact container handling at the Port of Santos, which is operating near its maximum capacity.

TCU The project, which will be the largest container terminal in Brazil, is still under review by the Federal Court of Accounts (TCU) for validation, before the bidding notice can be published by the National Secretariat of Ports, part of the Ministry of Ports and Airports (MPor).

Company statement In a statement, Maersk asserted its support for “clear rules in the Tecon Santos 10 bidding notice that ensure free competition and reflect the strategic importance of this asset for the country.” Regarding the judge’s decision in the case, the company stated that “the ruling issued at this stage refers only to the request for a new public consultation and did not address the merits of the restriction” proposed in the bidding notice prepared by the National Waterway Transportation Agency (Antaq). The company added that it will follow the natural course of the process, “assessing the possibility of filing an appeal and pursuing appropriate legal measures to uphold the right to broad, equitable, and public interest–aligned competition.”