STF Sets Limits on TCU's Power to Override Sectoral Regulators: Impact on the Port Sector and Cross-Sector Implications
On March 9, 2026, the Supreme Federal Court (STF) ruled that the Federal Court of Accounts (TCU) overstepped its constitutional authority by substituting its own judgment for the regulatory policy choices of the National Waterway Transportation Agency (ANTAQ). As a result, the STF fully reinstated the provisions of ANTAQ's Resolution 72/2022, which allow terminals to charge SSE fees.
In its decision on the Writ of Mandamus (“Mandado de Segurança”) n. 40,087/DF, the Court granted relief to ABRATEC, annulled TCU Decision 1,825/2024, and restored ANTAQ Resolution 72/2022 in full. The ruling establishes that the TCU exceeded its oversight role by replacing the regulatory agency's technical assessment with its own.
Background: Since 2011, ANTAQ has consistently treated the Service of Segregation and Delivery (SSE) as a service separate from the Box Rate and Terminal Handling Charge (THC) in import container operations. This position was formalized in Resolution 2,389/2012, reaffirmed in Resolution 34/2019, and consolidated in Resolution 72/2022. The 2022 resolution also required terminals to publish maximum prices for services not included in the Box Rate and authorized ANTAQ to cap SSE prices when there are indicators of abuse. Throughout this period, CADE-Brazil's competition authority-issued Technical Note 17/2022 recognizing that SSE is not unlawful in itself and signed a 2021 Memorandum of Understanding with ANTAQ to develop joint methodologies for monitoring potential abuses on a case-by-case basis.
The TCU's intervention: In 2022, the TCU issued Decision 1,448/2022 suspending the SSE-related provisions of Resolution 72/2022 based on operational and competition concerns. The TCU argued that SSE was already covered by THC and imposed artificial costs on dry-port competitors. In 2024, Decision 1,825/2024 denied ANTAQ's request for reconsideration and maintained the suspension.
The STF's ruling: The STF held that the TCU exceeded its constitutional authority by replacing ANTAQ's technical and policy decisions with its own assessment. The Court emphasized that the TCU's oversight role regarding regulatory agencies' core activities is limited to verifying whether agencies are meeting their statutory objectives—not engaging in direct regulation or substituting policy choices. The STF noted that ANTAQ had acted transparently and consistently since 2012, and that CADE, not the TCU, holds constitutional authority over competition enforcement.
Immediate port sector effects: The decision reinstates Resolution 72/2022 in its entirety. Container terminals may resume charging SSE fees for import operations, subject to the transparency requirements, maximum price publication obligations, and anti-abuse safeguards built into the resolution. Terminals should align their published price tables and cost justifications with ANTAQ's methodology, given that the agency now has restored authority to review and cap SSE fees where indicators of abuse arise.
Broader implications: The STF's reasoning extends beyond the port sector: it reflects the constitutional allocation of responsibilities among oversight bodies and specialized regulators across energy, communications, and infrastructure. When a regulator has exercised its authority through proper procedures and possesses specialized expertise, the TCU cannot nullify or rewrite regulatory decisions based on operational or competition concerns unless it can demonstrate concrete illegality within its constitutional mandate. Companies in other regulated sectors should review any ongoing TCU oversight proceedings that may effectively dictate regulatory content, determine price structures, or reallocate legal authority, as such interventions are now more clearly subject to judicial challenge.
