Idea Transcript
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New Antitrust Law and Permanent Visa NEW ANTITRUST LAW The National Congress approved on October 5 the Bill of Law No. 3937/2004, which aims at restructuring the Brazilian System for Economic Defense. The main objectives of the Bill of Law are to expedite the analysis of the cases and foster competition. Although the official text has not yet been released, some changes introduced by the new legislation are anticipated as highlighted below. Reorganization of the Brazilian antitruste authorities. The Administrative Council for Economic Defense (Conselho Administrativo de Defesa Econômica – “CADE”) will be restructured and will be composed of: Administrative Court, which will basically preserve the current composition and powers of CADE; General Superintendence, which will perform the former functions of the Economic Development Secretariat (Secretaria de Acompanhamento Econômico – SEAE) and the Protection of Economic Defense Department (Departamento de Proteção de Defesa Econômica – DPDE) of the Economic Law Department (Secretaria de Direito Econômico – SDE), both with regard to the analysis of concentration acts and the conducting of investigations; and Economic Studies Department, which will prepare studies and opinions related to the cases under analysis by the Brazilian antitrust authorities. Control of concentration acts. The approved text introduces the prior analysis and control of the concentration acts, that is, the transactions must be submitted to CADE before their consum-mation, being otherwise subject to fines ranging from R$ 60,000.00 to R$ 60,000,000.00. During the first year of the new legislation, the parties may ask CADE for the prompt completion of the transaction even though a final decision is pending. New criteria for submission of concen-tration acts. The concentration acts must be notified to CADE if (i) at least one of the economic groups involved in the transaction registered gross revenues during the previous year of the transaction at an amount equal to or greater than R$ 400 million within the Brazilian territory; and if (ii) at least another group involved in the transaction registered gross revenues during the same period at an amount equal to or greater than R$ 30 million within the Brazilian territory. The current criterion, which is based on the market share controlled by the companies involved, has been excluded from the Bill of Law. The Bill of Law has yet to be approved by President Dilma Rousseff and it will become effective within 180 days of its publication in the Official Gazette. PERMANENT VISA The National Council of Immigration published the Normative Resolution no. 95 of August 10, 2011 (“New Resolution”), which modified the requirements for: (i) the granting of work permits and permanent visas for managers, officers or executives of a legal entity, and (ii) the granting of permanents visas for foreign individuals on the basis of retirement. The New Resolution amended article 3 of the Normative Resolution no. 62 of December 08, 2004. The new rule modifies the two possibilities for a legal entity willing to appoint a foreign individual for the position of manager, officer or executive with managerial powers. 1/2
Araújo e Policastro Advogados Escritório de advocacia full service, especializado em Direito Empresarial, localizado em São Paulo, Brasil. https://www.araujopolicastro.com.br
According to the first possibility, the company must evidence that it has made direct investment in foreign currency in the amount of R$ 600,000.00 (six hundred thousand reais) per foreign individual appointed. Alternatively, the evidence of the minimum investment could be reduced to the amount of R$ 150,000.00 (one hundred fifty thousand reais) provided that the entity also proved the creation of at least 10 (ten) new jobs in the 2 (two) years following the incorporation of that given legal entity in Brazil or the taking of office by the permanent visa holder in the designated function. Under the New Resolution the form of investment is now restricted to the cash payment of capital in the Brazilian entity. Such operation can be evidenced by means of the Electronic Declaratory System of Registration of Foreign Investment (RDE-IED) with the Central Bank Information System (Sisbacen). The rule prevailing before the New Resolution allowed the investment to be made not only in currency but also with technology transfer or other capital contributions greater than or equal to: (i) US$ 200,000.00 (two hundred thousand American dollars) or (ii) US$ 50,000.00 (fifty thousand American dollars), if there was also evidence of the creation of 10 new Jobs. It is worth considering the fact that the New Resolution also changed the rules for granting permanent visas to foreign individuals on the basis of retirement. However, such rules are not covered in this newsletter. The new provisions created by the New Resolution came into force on August 19, 2011 and will apply to permanent visa applications filed after such date. To read this newsletter in PDF, click here [+] [Year 2 | AP International Newsletter 05]
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