Concession of Congonhas stops with deadlock on payment – 03/01/2023 – Market

The Spanish group Aena, which won Congonhas and ten other airports in the auction that took place in August last year, wants to use precatorios to settle R$ 2.4 billion referring to a portion of the grant (amount to be paid to the State in exchange for the right to exploration).

The model is foreseen in a constitutional amendment that has already been enacted, but fears of Anac (National Aviation Agency) with the use of the instrument have stopped the privatization process.

Precatories are amounts owed by the State after a final judgment in court. It is estimated that the stock of these debts is around R$ 100 billion in the case of the Union.

At the end of 2021, Congress approved a constitutional amendment allowing the use of these papers to pay concessions in a “self-applicable” way, but public authorities still see the need to create a more robust methodology to release transactions.

The agency assesses that there is now a risk of damage to public coffers if the contract is signed and later discovers, for example, that the precatories offered by the company are rotten.

Aena cannot take control of the airports until Anac resolves the impasse. In the process, the company claims to have secure credits and liquidity. However, given the delay, it is already considering abandoning the strategy and using its own money to carry out the business.

“Certainly we can dispose of other means to fulfill our obligations, including substitutions of means already presented, if necessary, and without prejudice to the result of the auction”, said the group through its advisory.

The AGU (Advocacy-General of the Union) entered the field and, together with its attorney within Anac, wants to create a model —together with the directors and technicians of the agency— that can be repeated in case concessionaires in general also choose to use the precatories.

When consulted, Aena said it opted for the use of precatorios for “some financial advantages that the transaction offers”. Anac and AGU did not respond until the publication of the report.

In the case of Congonhas and the ten airports that were part of the block auctioned by the Union, Aena must pay R$ 2.45 billion referring to the so-called initial contribution – an amount paid as a condition for the concession to start.

At the end of last year, the Spaniards had already communicated that they would not make this payment in cash, but precisely for the use of rights over federal government debts recognized by the Justice.

The situation became the subject of internal opinions by Anac and AGU. With the progress of the discussions, which have been going on for two months, there may be a delay in the process until the control of the airports is transferred from the state-owned company Infraero to the private sector.

This scenario is already so concrete that the Spanish group asked Anac if there would be a fine charged in case there are delays in the schedule.

Initially, the group that won the auction wanted to pass the precatories to Anac as a “provisional payment”.

In this way, the contract would be signed and the concession would be effective while Anac analyzed the regularity of the precatories (such as ownership and liquidity, for example).

This solution, however, was rejected by the agency. Opinion of the Superintendence of Economic Regulation of Airports considered this solution as being of high “economic-financial risk”.

Still according to the technicians’ analysis, which took place in mid-January of this year, it could even result in future legal disputes.

“It is necessary to reflect on how the management of the concession would take place in this period of considerable uncertainty until the effective discharge of the grant, instilling within the contractual execution risks that did not exist until then, disputes and contractual, arbitration or judicial questions about the matter. Or even, on how to deal with the effects already produced in a concession in the event that said discharge never takes effect”, says the opinion.

At the end of January, the AGU, through its Specialized Prosecutor’s Office at ANAC, agreed with the agency’s opinion.

“There is considerable risk in any procedure that is not equipped with verification as to the liquidity and certainty of the precatorios presented for payment and the effective collection of amounts by way of Initial Contribution”, said the AGU.

Both opinions pointed out that the contract could only be signed after analyzing the precatories, and verifying that the Union was not receiving rotten securities.

Faced with this response, Aena insisted on the use of precatories. He stated that it is a “legitimate interest” in view of the constitutional change, but demanded from Anac “detailing the procedure, deadlines and effects of payment/receipt of the initial contribution with precatories, in order to have legal certainty” – which has not yet occurred.

The company also proposed a solution that would involve prior analysis of precatorios and only then would the contracts be signed.

Sought after, Aena sees no obstacle to the deal and says that the government has collaborated to establish a suitable path for this type of pioneering transaction.

“We believe that everyone involved is imbued with the best efforts to ensure compliance with the constitutional mandate and to maintain the regulatory schedule”, said the company.