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| Lei de Concessões (Brazil) | |
|---|---|
| Name | Lei de Concessões (Brazil) |
| Native name | Lei nº 8.987/1995 |
| Enacted by | National Congress of Brazil |
| Date enacted | 1995 |
| Amended | Lei nº 9.074/1995, Decreto nº 2.300/1997, Lei nº 13.448/2017 |
| Status | in force |
Lei de Concessões (Brazil) provides the statutory framework for the grant of public service and public works concessions in the Federative Republic of Brazil. Enacted by the National Congress of Brazil and promulgated in 1995 as Lei nº 8.987/1995, the law established procedures for delegation of public services, regulatory principles for private operators, and remedial mechanisms involving administrative authorities such as Tribunal de Contas da União and Agência Nacional de Transportes Terrestres. It interacts with later statutory instruments and sectoral regulators like Agência Nacional de Energia Elétrica, Agência Nacional de Águas, and Agência Nacional de Aviação Civil.
The statute defines concessões as contractual delegations whereby a public entity permits a private party to exploit public services or works under specific conditions. It situates itself alongside constitutional provisions in the Constitution of Brazil regarding public service provision, and complements sectoral legislation such as the Código Civil (Brazil), Lei do Saneamento Básico (Federal Law 11.445/2007), and statutes governing infrastructure like the Lei do Petróleo (Lei nº 9.478/1997). The law establishes principles of continuity, universal access, and economic-financial equilibrium to guide relationships among grantors, concessionaires, and regulatory agencies including Banco Nacional de Desenvolvimento Econômico e Social when financing is involved.
Originating in a 1990s wave of privatization and regulatory reform influenced by international models such as the World Bank and International Monetary Fund, the law followed precedents from privatization programs in the United Kingdom and concession frameworks in France. Legislative debates in the National Congress of Brazil and among administrations of Fernando Henrique Cardoso shaped its text, while judicial interpretations from the Supreme Federal Court (Brazil) clarified constitutional limits. Subsequent amendments and regulatory guidelines emerged from interactions with sector regulators including Agência Nacional de Energia Elétrica and rulings from the Superior Tribunal de Justiça, reflecting evolving public procurement doctrines influenced by decisions of the World Trade Organization on procurement and services.
The statute distinguishes between concessão comum, concessão patrocinada, concessão administrativa, and permissões, defining terms such as "delegating authority" (entidade concedente), "operator" (concessionária), and "tariff" (tarifa) within the parameters of the Constitution of Brazil. It addresses transferability, reversion, and rebalancing mechanisms like revisão contractual and reajuste de tarifas tied to indices from institutions such as the Instituto Brasileiro de Geografia e Estatística or monetary policy references from the Banco Central do Brasil. The law also interfaces with property regimes under the Código de Processo Civil (Brazil) when expropriation or servitude rights are necessary.
The statute applies to infrastructure sectors including transportation (roads, railways, ports, airports), energy (generation, transmission), water and sanitation, and public facility management. It provides the legal basis for concessions overseen by Departamento Nacional de Infraestrutura de Transportes, Empresa Brasileira de Infraestrutura Aeroportuária (Infraero), Agência Nacional do Petróleo, Gás Natural e Biocombustíveis, and municipal authorities in capitals such as São Paulo and Rio de Janeiro. It also underpins mixed finance arrangements involving entities like Banco do Brasil and Caixa Econômica Federal.
Procurement under the statute mandates competitive bidding processes regulated by normas issued by the grantor and subject to oversight by bodies like the Tribunal de Contas do Estado and Tribunal de Contas da União. Bids may take forms such as maior lance, menor tarifa, or modelo híbrido, and are governed by transparency obligations aligned with the Lei de Acesso à Informação (Federal Law 12.527/2011). Prequalification, garantia de proposta, and termo de referência requirements intersect with administrative law principles adjudicated in courts including the Superior Tribunal de Justiça. Public-private partnerships and concession auctions often mobilize capital markets intermediated by institutions such as the B3 (exchange).
Contracts allocate commercial, operational, and political risks between grantor and concessionaire, specifying performance standards, penalties for default, and mechanisms for revisão econômico-financeira. Rights include exploration of service revenues, tariff setting subject to regulator approval from agencies like Agência Nacional de Transportes Aquaviários, while obligations encompass universal service mandates, maintenance, and investment schedules enforceable through judicial remedies in tribunals such as the Tribunal Regional Federal. Termination clauses, compensation formulas for early denouncement (denúncia unilateral), and assignment rules are structured to protect public interest and investor security, bearing on arbitration choices under rules of institutions like the Câmara de Arbitragem Empresarial – Brasil.
Enforcement involves administrative sanctions, contract enforcement through judicial review in the Supremo Tribunal Federal and Superior Tribunal de Justiça, and audit oversight by the Tribunal de Contas da União. Sectoral regulators issue resolutions, normas, and tarifas methodologies that operationalize the statute in contexts overseen by agencies such as Agência Nacional de Energia Elétrica and Agência Nacional de Telecomunicações. Anticorruption and compliance mechanisms connect to laws like the Lei Anticorrupção (Federal Law 12.846/2013) and enforcement by institutions including the Ministério Público Federal and Controladoria-Geral da União.
Category:Brazilian legislation