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Brazil

Last Verified on Monday 3rd December 2018

    Regulatory

    • Brazil

      The main authority in the Brazilian aviation sector is the National Agency of Civil Aviation (ANAC). ANAC is a public authority linked to the Ministry of Transportation, Ports and Civil Aviation, which was created to regulate and monitor all the activities of civil aviation, aeronautic infrastructure and airports.

      The Brazilian Aeronautics Code (Law No. 7,565/86) defines general rules for aviation and exploitation of this activity within Brazilian territory, while ANAC’s resolutions define specific rules and regulation. Other regulations are set out in:

      • the Brazilian Constitution;
      • the Montreal Convention;
      • the Civil Aviation Agency Law (Law No. 11,182/2005); and
      • the Secretariat of Civil Aviation Law (Law No. 12,462/2011).

      Last verified on Monday 3rd December 2018

    • Brazil

      The primary aviation regulatory body in Brazil is ANAC, a regulatory agency that reports to the Ministry of Transportation, Ports and Civil Aviation.

      ANAC operates by means of a board of directors, composed by five members who are appointed by the Brazilian President and approved by the Senate. One of the directors is the president of the agency and the others are the aircraft operations director, airworthiness director, economic regulation director and airport infrastructure director. Their term of office is up to five years.

      Last verified on Monday 3rd December 2018

    • Brazil

      Yes, Brazil extends fifth freedom rights; that is, it grants the right, in respect of scheduled international air services, to certain states to put down and to take on, in the Brazilian territory, traffic coming from or destined to a third state. In Brazil, there are no distinctions between passenger and cargo services regarding the extension of the fifth freedom rights.

      Last verified on Monday 3rd December 2018

  • International agreements

    • Brazil

      Brazil has executed and ratified bilateral agreements with Albania, Angola, Argentina, Arab Emirates, Aruba, Australia, Austria, Azerbaijan, Bahamas, Bahrain, Barbados, Belgium, Bolivia, Burkina Faso, , Cameroon, Canada, Cape Verde, Chile, China, Colombia, Costa Rica, Cuba, the Democratic Republic of Congo, Curacao, Denmark, the Dominican Republic, Ecuador, Egypt, Ethiopia, France, Ghana, Germany, Greece, Guatemala, Guyana, Guinea Bissau, Hong Kong, Hungary, Iceland, India, Iraq, Italy, Ivory Coast, Jamaica, Japan, Jordan, Lebanon, Luxembourg, Kenya, Kuwait, Macao, Malaysia, Mexico, Morocco, Mauritius, Namibia, Netherlands, New Zealand, Nigeria, New Zealand, Norway, Oman, Panama, Paraguay, Peru, the Philippines, Poland, Portugal, Qatar, Russia, Saudi Arabia, Scandinavia, Senegal, Seychelles, Singapore, Sint Maarteen, South Africa, South Korea, Spain, Sri Lanka, Sudan, Suriname, Sweden, Switzerland, Tanzania, Thailand, Trinidad and Tobago, Togo, Turkey, Ukraine, Uruguay, the United Kingdom, the United States, Venezuela, Vietnam, Yemen, Zimbabwe and Zambia.

      Brazil has executed and ratified the following multilateral aviation conventions:

      • the Warsaw Convention of 1929 (promulgated by Decree No. 20,704 of 24 November 1931) and its Montreal Protocols No. 1 and No. 2 (promulgated by Decree No. 2,860 of 7 December 1998), and Montreal Protocol No. 4 (promulgated by Presidential Decree No. 2,861 of 7 December 1998);
      • the Chicago Convention of 1944 (promulgated by Decree No. 21,713 of 27 August 1946);
      • the Geneva Convention of 1949 (promulgated by Decree No. 33,648, of 25 August 1953);
      • the Hague Protocol to the Warsaw Convention of 1955 (promulgated by Decree No. 56,463 of 15 June 1965 and approved by Legislative Decree No. 31 of 12 December 1964);
      • the Montreal Convention of 1999 (promulgated by Decree No. 5,910 of 27 September 2006); and
      • the Cape Town Convention of 2001 (promulgated by Decree No. 8008 of 15 May 2013).

      Last verified on Monday 3rd December 2018

    • Brazil

      Yes, Brazil has executed open sky agreements with Bahrain, Canada, Chile, Colombia, Costa Rica, Dominican Republic, European Union, Ethiopia, Ghana, Guatemala, Honduras, Hong Kong, Ireland, Jamaica, Kenya, Mexico, Oman, Panama, Paraguay, Qatar, Singapore, South Korea, the United Arab Emirates, the United States, Uruguay and Zimbabwe.

      In mid-2018, Brazil concluded three new agreements with the United Kingdom, the Netherlands and Luxembourg, aiming to eliminate the maximum limit flight between Brazil and the signatory countries. The agreement's approval still needs to follow all the necessary procedures in the National Congress.

      The measure represents another important step towards aligning Brazil with the current international practices and, in this sense, increase the free competition among companies in the sector, which will certainly stimulate the growth of the Brazilian air market, allowing the entry of new investments and players (mainly low-cost companies).

      Last verified on Monday 3rd December 2018

    • Brazil

      The international conventions are not usually enforced by Brazilian courts. In fact, in Brazil, passengers are considered consumers and therefore the Brazilian courts usually apply the Consumer Defence Code (CDC) in passenger-related claims, including international transportation liability cases. The CDC is very protective and is usually applied in benefit of the passengers. However, it is important to point out that the courts in Brazil, recently, have been applying the international conventions (mainly Montreal Convention) on issues such as the limit of indemnification luggage loss and the prescriptive period.

      Last verified on Monday 3rd December 2018

    • Brazil

      In Brazil, bilateral agreements do not define taxation rules; the applicable law is the Brazilian one. All international agreements and treaties must be ratified and incorporated into Brazilian law in order to take effect.

      As a general rule, foreign airline companies with branches in Brazil must follow the same tax requirements applicable to Brazilian companies. 

      Last verified on Monday 3rd December 2018

  • Airline start-up and operation

    • Brazil

      In Brazil, there are currently no laws in force aimed to specifically regulate the carbon emissions of airlines.

      The most recent voluntary action by the Brazilian Government related to such issue was the approval of a Resolution for the establishment of Global Market-Based Measure to offset CO2 emissions from international aviation, as discussed during the 39th Assembly of the International Civil Aviation Organization, occurred on 6 October 2016. According to ANAC, Brazil shall commit to apply such Resolution as of 2027.

      In this sense, there is a bill pending before the House of Representatives, filed on October 10, 2016, in order to include measures to reduce greenhouse gas emissions related to the national aviation sector in Federal Law 12,187/2009, which establishes Brazil’s National Climate Change Policy. Such policy establishes a national voluntary commitment to reduce the nation’s greenhouse gas emissions between 36.1 per cent and 38.9 per cent by 2020.

      Last verified on Monday 3rd December 2018

    • Brazil

      Foreign airlines companies that wish to start up and operate a passenger or cargo airline in Brazil must obtain an authorisation to set up the foreign branch of the airline and an authorisation to operate.

      In order to obtain such authorisation to set up the foreign branch, the foreign airline must:

      • submit corporate documents of the airline, including the one through which the airline decided to set up in Brazil and to allocate a portion of its corporate capital to its Brazilian branch;
      • appoint a permanent attorney-in-fact resident in Brazil with broad powers to represent the airline, including, but not limited to, receiving service of process; and
      • periodically publish in the Brazilian Official Gazette of the foreign company’s financial statements and corporate resolutions.

      As for the authorisation to operate, it requires the submission of flight and route plans and other operational and technical information. It is also necessary that the foreign airline:

      • holds the authorisation to set up in Brazil and have formally incorporated a branch; and
      • has complied with the following:
      • applied before the Commission for the Coordination of Air Transportation for an authorisation to import aircraft, if applicable;
      • applied for registration of its aircraft with the Brazilian Aircraft Registry; and
      • applied before ANAC for the Certificate of Homologation of an Air Transportation Company in accordance with the applicable Brazilian Regulations on Aeronautic Homologation.

      In the case of commercial air transportation services, ANAC is the agency with authority to issue both the decree authorising the setting up of the Brazil branch and the authorisation to operate in Brazil.

      Last verified on Monday 3rd December 2018

    • Brazil

      The ownership of local airlines offering cabotage services is not just restricted to national investors. At the end of 2018, the Brazilian government issued a provisional measure that removes any restrictions on international investors, making it possible for a Brazilian company in the sector to have 100 per cent foreign capital. The measure represents another important step towards aligning Brazil with current international practices. While already in effect, the measure has to be approved by the Brazilian National Congress before 23 March 2019 (with a possible extension to 22 May 2019), at which time it will either be converted into law or repealed.  

      Last verified on Monday 3rd December 2018

    • Brazil

      Airlines companies formed and/or operating in Brazil must contract civil liability insurance, including:

      • permanent injury or death of passengers and crew members;
      • permanent injury or death of persons and damages to assets in the soil; and
      • aircraft collision.

      Last verified on Monday 3rd December 2018

  • Airport operations

    • Brazil

      Operation of Brazilian airports is handled by both private and public bodies. This activity was exclusively performed by Infraero, a Brazilian airport company; however, the federal government has begun to implement private concession proceedings in the past few years.

      The first and second rounds of airports under concession are operated by private parties (51 per cent, being 25 per cent of airport operators) and Infraero (49 per cent). The third round took place in 2017, with no limitation on participation of private parties.

      Last verified on Monday 3rd December 2018

    • Brazil

      Airport operators collect landing fees. In addition to those, they also collect boarding fees, aircraft parking fees, cargo storage fees and cargo handling fees. Other sources of income are the rent for the use of airport space, such as: check-in, aircraft maintenance, cargo loading and unloading, telecommunication and meteorological services, and ticket sales stores.

      Last verified on Monday 3rd December 2018

  • Code-sharing and frequent flyer programmes

    • Brazil

      The airport operator is responsible for granting authorisation for ground handlers, aircraft fuel providers and catering companies that fulfil the requirements set out in ANAC’s Resolution No. 116/2009. Such Resolution requires that airport operators keep all the data on the service providers updated. It also provides for the airport operators’ responsibility to issue authorisation for the entrance of employees into security restricted areas, bonded areas, and other controlled areas.

      Last verified on Monday 3rd December 2018

    • Brazil

      Code-sharing arrangements require a bilateral agreement Brazil and the origin countries of the airlines involved in the agreement. For agreements between an airline that already operates in Brazil and an off-line airline that does not fly directly to and from Brazil, it is sufficient that ANAC and the civil aviation authority of the off-line airline jurisdiction enter sign a memorandum of understanding.

      In addition, some code-sharing agreements may be subject to the Antitrust Authority’s (CADE) analysis. In this case, CADE usually follows the same proceeding applied for mergers and acquisitions reviews.

      Last verified on Monday 3rd December 2018

  • Airspace

    • Brazil

      Airspace in Brazil is regulated by the Ministry of Defence, through the Department of Airspace Control (DECEA). DECEA is a public authority responsible for the strategic and systemic airspace control, including services related to the administration, management and effective control of Brazilian airspace that require a high degree of technology, manpower and research.

      DECEA operates the Brazilian Airspace Control System (SISCEAB), Flight Protection System (SPV), Air Force Telecommunications System (STCA) and Search and Rescue System (SISSAR).

      Last verified on Monday 3rd December 2018

  • Merger control

  • Aircraft registration

    • Brazil

      Any modification in the articles of incorporation/association of aviation companies in Brazil is subject to previous approval by the ANAC, as per section 184 of the Brazilian Aeronautics Code (Law No. 7,565/86). Depending on the size of the acquisition, it may be subject to analysis by the antitrust authority – CADE. CADE’s approval is required in cases where (as per Law No. 12,529/11, section 88, as modified by Joint Ruling No. 994/12):

      • one of the groups of companies involved in the transaction have registered gross revenues in Brazil in excess of at least 750 million reais; and
      • at least on other corporate group of companies involved have registered gross revenues in Brazil in excess of 75 million reais, both in the previous year of the transaction.

      Last verified on Monday 3rd December 2018

    • Brazil

      The registration before RAB provides a document that creates a security interest over the aircraft.

      For Brazilian aircraft, the relevant security document must be governed by Brazilian laws and filed before RAB, accompanied by the proof of payment of the aircraft insurance and delivery of the aircraft registration certificate and certificate of airworthiness.

      Last verified on Monday 3rd December 2018

  • Data privacy

    • Brazil

      Airlines are subject to data privacy rules regarding collection and use of passengers’ data.

      The right of an individual to privacy is protected by the Brazilian Constitution (section 5) and Civil Code (sections 20 and 21). The Constitution also provides the right to habeas data, guaranteeing that individuals have access to their personal information contained in governmental registries and (governmental or private) databanks, as well as demand the correction of such data should it be incorrect.

      CDC also provides regulation about data privacy, determining that consumers must have access to the data collected about them and be informed about the data source. Opening a consumer database register is only allowed upon prior written warning; and consumers are entitled to dispute and request corrections about the information.

      Negative records (eg, payment default) may only be shared with credit history database company while the (underlying) obligation is still pending and collectable (ie, not hit by the statutes of limitations).

      Lastly, the recently enacted Internet Law (No. 12,965/2014) expressly prohibits internet service providers from making available to third parties data provided by users, unless the user gives his or her prior and express consent.

      In the event an airline provides internet services, this airline is responsible for keeping records of access logs (ie, the information regarding the date and time of use from a certain IP address of an internet application or device). The access logs records shall be kept for a period of six months.

      Last verified on Monday 3rd December 2018

    • Brazil

      Yes, it is regulated in Brazil, through ANAC Resolution No. 255/2012, which establishes the rules on the provision of advance delivery of PNR (passenger name record). The PNR is defined in Brazilian law as a data record of each booked trip, by or on behalf of a passenger, created by airlines or agents authorised for their own use.

      The ANAC Resolution No. 255/2012 establishes that the PNR data must be transmitted by the airlines through a secure electronic message in accordance with the requirements established by the Brazilian Federal Police Department (DPF) and with this Resolution provisions for the use of organs and public entities competent to prevent and punish of acts of unlawful interference and the clearance facilitation of migratory, customs, sanitary and farming control authorities.

      Airlines and other aircraft operators may forward the information through an air transport data communication network or other channels made available by the DPF. The occurrence of a fault, even if justified, does not exempt the airline from the obligation to send the PNR data later, as soon as possible.

      Last verified on Monday 3rd December 2018

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