A legal opinion from the Public Prosecutor’s Office at Brazil’s Federal Audit Court (MPTCU) has deemed illegal the model proposed by the National Waterway Transport Agency (Antaq) for the auction of Tecon 10, the mega container terminal project at the Port of Santos.
The opinion aligns with the technical department of the Federal Audit Court (TCU), which argues that the auction should be conducted in a single round to ensure equal treatment among competitors. Both bodies say that holding the auction in two phases — as proposed by Antaq and the Ministry of Ports and Airports — would, in practice, exclude current port operators (“incumbents”) from the first phase, violating the principle of fair competition. These incumbents include major shipping lines that already operate terminals within the Santos port complex.
“Such a measure [the two-phase auction] lacks robust technical justification, as no concrete anticompetitive effects were demonstrated that would justify excluding key players — especially since Antaq’s proposed divestment requirement would already provide sufficient structural safeguards to ensure future market competition,” stated Prosecutor General Cristina Machado da Costa e Silva in the opinion released Thursday (30).
“The measure, therefore, is disproportionate to its stated goals and violates the constitutional principles of equality, free competition, and efficiency,” the opinion concluded.
The case regarding the auction notice is under review at the TCU, with Minister Antonio Anastasia serving as rapporteur. The Minister of Ports and Airports, Silvio Costa Filho, has already said he will follow Anastasia’s recommendation.
Antaq argues that allowing incumbents to participate could lead to market concentration, potentially favoring global shipping giants Maersk, MSC (joint operators of terminal BTP), and CMA CGM (owner of Santos Brasil). DP World would also be affected.
The MPTCU, however, recommends that the Ministry revise the draft notice to allow all incumbents to participate in a single-round auction, while granting the government authority to impose divestment obligations if one of these players wins — setting a reasonable deadline and safeguards to ensure compliance without sharing sensitive information.
The main divestment measure would require any incumbent winner to sell its existing assets at the Port of Santos before operating Tecon 10.
The Ministry of Finance has also questioned the legality of the two-phase auction, warning of potential legal challenges. Last week, during an event at B3 in São Paulo, Costa Filho expressed hopes of holding the auction by December 17.
Companies supporting the two-phase model, such as Philippine operator ICTSI, which runs a terminal at the Port of Suape (Pernambuco), argue that it would promote a fairer competition by preventing current Santos operators from colluding. Other firms, however, insist that Antaq has the legal authority to determine the auction format.
Maersk, one of the strongest proponents of open competition, countered that market concentration concerns are speculative and not supported by evidence.
Tecon 10 will occupy a 622,000-square-meter area in the Saboó district of Santos and will be a multipurpose terminal handling containers and breakbulk cargo.
The winner will be chosen based on the highest concession offer, granting the right to build and operate the facility for 25 years, with an estimated total investment of up to R$ 40 billion.
The terminal will feature four berths and a projected capacity of 3.5 million TEUs per year, making it the largest container terminal in Brazil once completed.
See below two charts showing long-haul container movements at the Port of Santos — exports and imports. The charts were prepared using DataLiner data and include only long-haul operations, excluding transshipment, cabotage, and other domestic movements:
Container Exports | Jan 2022–Aug 2025 | TEU
Source: DataLiner (Click here to request a demo)
Container Imports | Jan 2022–Aug 2025 | TEU
Source: DataLiner (Click here to request a demo)
Source: Folha de S. Paulo
