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| Concessions Law (Brazil) | |
|---|---|
| Name | Concessions Law (Brazil) |
| Long name | Lei de Concessões e Permissões de Serviços Públicos |
| Enacted | 1995 |
| Jurisdiction | Brazil |
| Related legislation | Lei de Licitações (1993), Lei das Estatais (2016), Código Civil (Brazil), Constituição da República Federativa do Brasil de 1988 |
| Keywords | concessions, public services, infrastructure, privatization |
Concessions Law (Brazil) provides the statutory framework for the grant of public service and infrastructure concessions in Brazil, regulating contracts that allocate delivery, operation, and investment responsibilities between the Federal Government of Brazil, States of Brazil, Municipalities of Brazil, and private parties. The law interfaces with landmark instruments such as the Constitution of Brazil (1988), the Lei de Licitações (1993), and sectoral statutes governing telecommunications in Brazil, energy in Brazil, water supply and sanitation in Brazil, and transportation in Brazil. It shapes relationships among public authorities like the Ministry of Infrastructure (Brazil), National Agency of Petroleum, Natural Gas and Biofuels (ANP), National Electric Energy Agency (ANEEL), National Water and Sanitation Agency (ANA), and private investors including Vale S.A., Petrobras, and CCR S.A..
The statute establishes principles for granting concessions and permissions for public services across sectors including rail transport in Brazil, road transport in Brazil, port administration in Brazil, airport management in Brazil, telecommunications in Brazil, and electric power in Brazil. It defines eligible concessionaires such as Sociedade Anônima, Empresa Individual de Responsabilidade Limitada (EIRELI), and Consortium (business), and coordinates with fiscal rules in the Lei de Responsabilidade Fiscal (2000). The law prescribes procedures that intersect with the Tribunal de Contas da União, Ministry of Finance (Brazil), and sectoral regulators including ANAC (National Civil Aviation Agency), ANTAQ (National Agency for Waterway Transportation), and ANATEL (National Telecommunications Agency).
Key statutory sources include the concessions statute itself, the Constitution of Brazil (1988), the Código Civil (Brazil), the Lei de Licitações (1993), and complementary norms such as the Decreto-Lei (Brazil), regulatory resolutions from ANEEL, ANATEL, ANAC, and administrative guidance from the Advocacia-Geral da União (AGU). Jurisprudence from the Supremo Tribunal Federal, Superior Tribunal de Justiça, and decisions of the Tribunal de Contas da União interpret concepts like public service, continuity, and reversibility. Financial covenants are informed by institutions such as the Banco Nacional de Desenvolvimento Econômico e Social (BNDES), Banco do Brasil, and private banks like Itaú Unibanco and Banco Bradesco.
The law accommodates multiple models: traditional public service concessions, administrative permissions, public-private partnerships (PPPs) under the Brazilian PPP framework (2004), and asset leases for state-owned enterprises such as Empresa Brasileira de Correios e Telégrafos (ECT). Contractual variants include availability payments, demand-risk transfer structures used by CCR S.A. and Ecopistas, build-operate-transfer schemes linked to Port of Santos projects, and hybrid models employed in Aeroporto Internacional de Guarulhos concessions. Participants range from multinational corporations like Siemens and Vinci SA to domestic groups such as Odebrecht (Novonor), Camargo Corrêa, and Andrade Gutierrez.
Procurement follows competitive tendering overseen by procurement authorities and aligned with Lei de Licitações (1993) rules or the procurement regime for Estatais (2016). Tender documents often require technical and financial qualifications evaluated by committees including representatives from Ministry of Infrastructure (Brazil), State Secretariat of Transport, and external auditors like Deloitte (Brazil), PwC Brazil, and KPMG Brazil. Award criteria balance lowest tariff bids and best-value offers as seen in major projects like the São Paulo Metro and the Rodoanel Mário Covas. Contract award processes are scrutinized by the Tribunal de Contas do Estado de São Paulo and may involve pre-qualification rounds, model forms derived from Banco Interamericano de Desenvolvimento (IDB) and World Bank guidance, and guarantees such as performance bonds from insurers like SulAmérica.
Concession contracts allocate rights and obligations including investment schedules, tariff-setting mechanisms, universal service obligations, and quality indicators enforced by agencies like ANEEL and ANATEL. Risk allocation covers demand risk, construction risk, political risk, and force majeure events, with mitigation tools such as revenue guarantees, termination payments, step-in rights, and sovereign support mechanisms involving Ministry of Finance (Brazil)]. Financial structuring often involves project finance led by BNDES and syndicated loans from banks including HSBC Brazil and Santander Brasil. Contractual stability clauses interact with constitutional protections and investor protections invoked under bilateral investment treaties involving Brazil and partners such as Portugal or Spain.
Sectoral regulators—ANEEL, ANATEL, ANAC, ANTAQ—implement technical standards, tariff reviews, and compliance audits, sometimes coordinated with the Procuradoria Geral da Fazenda Nacional (PGFN) and the Advocacia-Geral da União (AGU)]. Enforcement mechanisms include administrative sanctions, fines, contract renegotiation protocols, and reversion procedures that involve the Ministry of Justice (Brazil) for antitrust scrutiny by the Administrative Council for Economic Defense (CADE). Public oversight is reinforced by transparency obligations linked to the Controladoria-Geral da União (CGU) and reporting to bodies such as the Câmara dos Deputados and Senate (Brazil) committees.
Disputes under concessions are resolved via administrative appeals, arbitration under rules like the Brazilian Arbitration Act (1996), or litigation before specialized chambers of the Tribunal de Justiça do Estado de São Paulo and federal courts including the Superior Tribunal de Justiça and the Supremo Tribunal Federal. International investors may invoke arbitration under International Centre for Settlement of Investment Disputes or ad hoc tribunals seated in São Paulo or Rio de Janeiro, with awards subject to recognition and enforcement in accordance with the New York Convention (1958). Precedents from cases involving Petrobras and infrastructure concession disputes guide interpretation of termination compensation, change-in-law, and force majeure doctrines.
Category:Brazilian law