STJ suspends injunction, clearing path for Santos Port Authority takes management of port in Santa Catarina

Decisão permite que a Autoridade Portuária de Santos (APS) assuma a gestão do Porto de Itajaí, em Santa Catarina (Luciano Sens/Porto de Itajaí)

The President of the Superior Court of Justice (STJ), minister Antônio Herman de Vasconcellos e Benjamin, suspended an injunction issued by the Federal Regional Court of the 4th Region, which prevented the Santos Port Authority (APS) from assuming the management of the Port of Itajaí, in Santa Catarina.

Benjamin granted a request by the Union to suspend the effects of the precautionary measure issued by judge Ana Cristina Ferro Blasi, which sought to prevent the termination of Delegation Agreement 08/97 for the Port of Itajaí, assigned to the local City Hall. This measure was blocking APS from fulfilling a directive by the Ministry of Ports and Airports (MPor) to assume the management of the Santa Catarina port.

The initiative to extend the delegation by 12 more months and prevent APS from managing the Port of Itajaí was led by the Foro Metropolitano da Foz do Rio Itajaí-Açu Association. This group opposes federalization and the transfer of port management to the Federal Government, arguing that the Union cannot resume management without first preparing a transition plan capable of ensuring continuity of port operations and protecting investments made in the area.

The association's initial request for an injunction was denied in the first instance, but it filed an interlocutory appeal with the Federal Court. In granting the precautionary measure, the judge highlighted the argument that the lack of evidence of methods and processes for port management transition could violate the principle of trust protection. The judge also noted exchanges of official communications between the Itajaí City Hall and MPor, requesting the delegation’s extension, which had already been renewed previously and is set to expire on January 1, 2025.

Minister Herman Benjamin, in deciding to suspend the injunction, first noted that the resolution of the substantive issue — whether Itajaí has the right to continue managing the port — “must be addressed in the appropriate procedural avenues.” He emphasized: “This court is not in a position to analyze, from a strictly legal perspective, whether the injunction granted in the interlocutory appeal should be revoked or upheld.”

The minister pointed out two key issues:

“Firstly, that the municipal entity, presumably the most interested party in extending the agreement, did not initiate legal proceedings on its own initiative with the recommended foresight.”

“Secondly, as demonstrated by the Union, this situation is a matter of public knowledge... the management crisis at the Port of Itajaí, particularly over the past two years (2023 and 2024) — coinciding with the period of the agreement’s extension.”

Moreover, the minister remarked: “In this context, it is somewhat surprising that, in a matter of such complexity, the lower court not only failed to hear the Union (the opposing party) beforehand but also issued a decision imposing a non-performance obligation, distinctly encroaching on administrative discretion. This decision, at the very least, opens the door to debate on the often-blurred boundaries between the free exercise of judicial function and encroachment on other branches of government,” he stated.

Benjamin also warned that the regional court had not “demonstrated consideration of practical consequences, relying, as far as one can infer, solely on the analysis of abstract legal principles.”

He expressed concern over potential harm, particularly due to the “disruption of services resulting from difficulties in leasing to companies operating in this sector, interruptions in dredging activities at the Port of Itajaí, among others, which indicate that forced judicial extension of the Delegation Agreement could cause damage to public order and the economy.”

The Federal Government noted that, during the delegation to the City Hall, it funded the realignment of berths 3 and 4 of the Port of Itajaí; warned local managers about the lack of infrastructure for handling solid and liquid bulk; and highlighted the strained relationship with a tenant, which impacted container handling and labor relations.

The President of the Santos Port Authority, Anderson Pomini, when questioned, has stated his intention to assist the Port of Itajaí and support MPor, “which views all ports as part of the Brazilian port complex, with all ports expected to grow, support Brazil’s trade flow, and contribute to the country’s development through efficient export channels and secure import operations.”