On March 30, 2015, the National Agency of Civil Aviation ("ANAC") issued Resolution No. 335, stipulating the procedures and methodology to be followed in the event of an extraordinary review of federal airport concessions, in order to restore the economic-financial balance of the concession ("Extraordinary Review").
Pursuant to the Resolution, an Extraordinary Review is permitted whenever there is an event that may substantially affect the economics of the concession ("Economic Impact Event"). This Economic Impact Event must be contemplated in the concession agreement and the risk associated with such Economic Impact Event allocated to the authority granting the concession ("Public Authority").
The Extraordinary Review may be initiated either at the instigation of the concessionaire or the Public Authority and it may include one or more Economic Impact Events. An Economic Impact Event will be considered to "substantially affect" a concession when there is a net impact exceeding 5.5% (five point five per cent.) of the concessionaire´s average gross income for the 3-year period immediately prior to the Extraordinary Review application.
If the financial impact is less than 5.5% (five point five per cent.), the "Extraordinary Review" in fact will only be carried out as part of the usual and periodic ordinary review ("Ordinary Review") for the concession (which Ordinary Review will be stipulated in the concession agreement). In this case, the interested party must file an application (together with all of the relevant documentation) with ANAC no later than 12 (twelve) months prior to 1st January of the year in which the Ordinary Review is scheduled to occur.
The Resolution mandates that the Extraordinary Review must be concluded within 90 (ninety) days of filing the application. However, this period may be extended if there are appropriate grounds for doing so.
For each Economic Impact Event that gives rise to an Extraordinary Review, the Resolution establishes that there must be a calculation of marginal cash flow, including an estimate of the present value of expenses and revenues, calculated as at the date of the application, to offset the financial impact of the Economic Impact Event.
Pursuant to §6 of article 7 and article 10 of the Resolution, ANAC may, at its discretion, periodically review the projected demand for airport services on which the cash flow estimate was based, and compare it with the actual demand.
In order to reestablish the economic-financial balance of the concession, ANAC may review: (i) the tariff amounts; (ii) the period of the concession; (iii) the concessionaire´s contractual obligations; (iv) the fixed contribution owed by the concessionaire, as previously approved by the Secretariat for Civil Aviation of the Presidency of the Republic (Secretaria de Aviação Civil da Presidência da República); (v) any other means ANAC and the concessionaire may find mutually acceptable, subject to the prior approval of the Secretariat for Civil Aviation of the Presidency of the Republic.
Lastly, the Resolution stipulates discount rates to be used in the calculation of the marginal cash flows for the concession during Extraordinary Review, as follows:
- 6.81% (six point eight one per cent.) applicable to airports in the city of São Paulo (Guarulhos airport), in the city of Campinas (Viracopos airport), in the city of Brasília, in the city of Belo Horizonte (Confins airport) and in the city of Rio de Janeiro (Galeão airport), effective until the first Ordinary Review, as stipulated in the concession agreement;
- 7.47% (seven point four seven per cent.) applicable to the airport in the city of São Gonçalo do Amarante, effective from February 1, 2015 until the second Ordinary Review, as stipulated in the concession agreement.