by Diogo Albaneze Gomes Ribeiro
Analyzing the precedents of both the STJ (Superior Court of Justice) and the STF (Federal Supreme Court), it can be seen that the possibility of charging for the use of highway rights-of-way (for laying pipelines and telecommunications cables or other essential public services) varies depending on whether or not the highway is under concession.
Where the highway is still managed by the Federative Entity, the prevailing view is that such charges are not possible, as already stated by the STF in extraordinary appeal No. 581,947. That precedent was based on the premise that the public rights-of-way of public roads are public property, falling within the category of assets for common use by the people – and are subject, without any duty to compensate, to the effects of the restriction resulting from the installation in the ground of equipment necessary for the provision of public services1.
In the case of highways under concession, however, case law, especially of the STJ, goes in the opposite direction, expressly allowing such charges, even from other public service providers. More precisely, the STJ has recognized that art. 11 of Law 8,987/1995, by allowing the exploitation of alternative, complementary or ancillary revenues or associated projects, authorizes charging for the use of the highway right-of-way, including from another public service concessionaire2.
Recently, in judging special appeal No. 1677414/SP, whose judgment was released on February 1, 2022, the 1st Panel of the STJ once again confirmed this position, also properly distinguishing it from the aforementioned STF understanding (RE No. 581,947).
More precisely, the STJ noted that the STF’s understanding that federative entities may not charge for the use of public roads, including soil, subsoil and airspace, for installing equipment intended for the provision of public services does not prevent highway concessionaires from charging for the use of rights-of-way under art. 11 of Law 8,987/1995, provided such charge is authorized by the granting authority and expressly provided for in the concession contract, since this hypothesis was not discussed in RE 581,497.
In other words, STJ case law imposes two conditions for charging other concessionaires for the use of the right-of-way: (i) the highway must be under concession; and (ii) the concession contract must authorize charging for the use of the right-of-way.
¹ To the same effect, see the following STJ precedents: AgInt no REsp 1471643/PR, Reporting Justice BENEDITO GONÇALVES, 1st Panel, decided 03/13/2018, DJe 03/22/2018; REsp. 1,246,070/SP, Reporting Justice MAURO CAMPBELL MARQUES, DJe 06/18/2012.
² Int no REsp 1677414/SP, Reporting Justice REGINA HELENA COSTA, 1st Panel, decided 02/08/2018, DJe 02/20/2018; AgRg no REsp 1296954/SP, Reporting Justice NAPOLEÃO NUNES MAIA FILHO, 1st Panel, decided 03/17/2015, DJe 04/07/2015; AgRg no REsp 1470686/PR, Reporting Justice MAURO CAMPBELL MARQUES, 2nd Panel, decided 02/24/2015, DJe 03/02/2015; STJ – REsp 975097/SP, Reporting Justice DENISE ARRUDA, decided 12/09/2009, DJe 05/14/2010.
Article originally published on the Agência Infra portal (in Portuguese).
