AP INTERNATIONAL NEWSLETTER YEAR 2 | NO. 5 | OCTOBER 2011
Notes CORPORATE | 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. 2
CORPORATE | 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. 4
Contributors to this Newsletter: Lira Renardini Padovan, Juliana Tiemi Hashimoto and Caroline Rodrigues Ogata.
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AP INTERNATIONAL NEWSLETTER Year 2 | No. 5 | October 2011
CORPORATE | Notes 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 antitrust 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 preser ve 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 consummation, 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 concentration acts. The concentration acts must be notified to CADE if (i) at least one
AP INTERNATIONAL NEWSLETTER
Year 2 | No. 5 | October 2011
Corporate | New Antitrust Law
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.
The AP International Newsletter is a publication of AraĂşjo e Policastro Advogados. All rights reserved.
Authors Lira Renardini Padovan lpadovan@araujopolicastro.com.br
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Caroline Rodrigues Ogata cogata@araujopolicastro.com.br
The former issues of the AP International Newsletter are available on the internet at: www.araujopolicastro.com
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This publication offers general information and should not be taken or used as legal advice for specific situations which depend on the evaluation of precise factual circumstances.
48 YEARS
AP INTERNATIONAL NEWSLETTER Year 2 | No. 5 | October 2011
CORPORATE | Notes 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. 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
AP INTERNATIONAL NEWSLETTER
Year 2 | No. 5 | October 2011
Corporate | Permanent Visa
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.
Authors Juliana Tiemi Hashimoto jhashimoto@araujopolicastro.com.br
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Caroline Rodrigues Ogata cogata@araujopolicastro.com.br
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The former issues of the AP International Newsletter are available on the internet at: www.araujopolicastro.com The AP International Newsletter is a publication of AraĂşjo e Policastro Advogados. All rights reserved. This publication offers general information and should not be taken or used as legal advice for specific situations which depend on the evaluation of precise factual circumstances.
48 YEARS