The refund of the grant fee paid by the private party upon concession agreement annulment

Abstract

Objective: This article examines whether, in the event of annulment of a public service concession agreement, the State must refund the concession fee (grant fee) previously paid by the private operator. The analysis highlights constitutional, legal, and jurisprudential foundations governing public service concessions and the patrimonial consequences arising from early termination.

Method: The study employs a qualitative approach using the hypothetical-deductive method, based on bibliographic, legislative, and case-law review. The analysis considered statutes such as Laws 8,987/1995 and 14,133/2021, in addition to precedents from the Superior Court of Justice and specialized scholarship on concessions, concession fees, juridicity, and unjust enrichment.

Findings: Results indicate that annulment while an expression of administrative self-review does not eliminate the legal and economic effects already produced during contract performance. The concession fee constitutes a financial counterpart directly linked to the right to operate the public service. With the contract terminated prematurely, the legal cause for the payment ceases to exist. Therefore, full or proportional reimbursement becomes mandatory to avoid unjust enrichment by the Administration. Case law reinforces that even when the concessionaire lacks good faith, investments must still be compensated, further supporting the requirement of refunding the concession fee.

Conclusions: The study concludes that refunding the concession fee is a legal obligation whenever annulment of the concession occurs, regardless of fault attribution. The fee is not a sanction but an economic consideration; without the ability to exploit the service, the State cannot retain the amount charged. Restitution ensures contractual equity, legal certainty, and adherence to the foundational principles governing concession agreements.