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Establishment restrictions

BRAZIL

Since 2013

Chapter Investment  |  Sub-chapter Other restrictive practices related to foreign investment
Art 13 of the Resolution 614, Regulamento do Serviço de Comunicação Multimídia
Only companies incorporated under Brazilian law, with headquarters and management in Brazil, can obtain licenses to provide multimedia communication service (a service that uses the fix telecom network in order to transmit video, voice and data).
Coverage Multimedia Communication Service
Establishment restrictions

BRAZIL

Since 1962

Chapter Investment  |  Sub-chapter Other restrictive practices related to foreign investment
Art. 3 to 5 of the Law 4131/1962 - Foreign Capital Law
Foreign direct investment is subject to a preliminary and declaratory review and verification by the Central Bank. (Art. 3-5 of the Foreign Capital Law). Furthermore, a licence is required to operate all telecommunication services. Additionally, art. 10 of the Resolution 614, posits the need for an authorization in order to provide multimedia service communications.
Coverage Telecommunication services, computer services and multimedia communication service
Sources
  • http://www.wipo.int/wipolex/en/text.jsp?file_id=205213
  • OECD report on national treatment for foreign controlled enterprises, 2013, Pg. 20, referring to Law Nr. 9, 472 of 16 July 1997: http://www.oecd.org/investment/investment-policy/national-treatment-instrument-english.pdf
Establishment restrictions

BRAZIL

Since 1999

Chapter Investment  |  Sub-chapter Screening of investment and acquisitions
Art. 61 of ANATEL Resolution 195/1999
When an operation of merger or acquisition results in the transfer of an authorization to provide telecommunication service or in the transfer of control of a telecommunications service provider, it will be subject to ANATEL (National Telecommunications Agency) and CADE (Brazil Administrative Council of Economic Defence) prior approval. The exception is the transfer of the control of a telecommunications service provider holding authorization to grant only multimedia communication services (SCM), in which case ANATEL’s prior approval is only required if the transaction meets the same thresholds of the antitrust filling. However, in order to safeguard competiton on the market, ANATEL can establish restrictions, limitations and conditions to the transfer of multimedia communication licenses.
Coverage Telecommunication services, computer services and multimedia communication service
Sources
Establishment restrictions

BRAZIL

Since 1976

Chapter Investment  |  Sub-chapter Restrictions on board of directors and managers
Art. 146 of the Brazilian Corporation Law (Law 6.404/76), Law 10406/2002
Art. 146 of the Brazilian coorporation law requires that all members of the management board ("diretoria") and executive officers of a joint-stock company must be resident in Brazil. For the case of Limited liability companies, managers must be Brazilian residents. If the shareholders want to elect a non-resident person as an officer, that individual must first apply for a permanent visa to obtain the required resident status in Brazil.
Coverage Horizontal
Establishment restrictions

BRAZIL

Since 1998

Chapter Investment  |  Sub-chapter Restrictions on ownership
Article 1 of Decree No. 2617/1998 - Composition of Capital for Telecommunications Services
Foreign ownership is capped at 49% for fixed, mobile and internet telecommunication services. The majority of the capital (51%) of a telecommunications licensee must be held by a legal entity established in Brazil.

Moreover, concessions, permits and authorizations for the operation of telecommunications services of collective interest may be granted or issued only to companies incorporated under Brazilian law, with headquarters and management in Brazil, where the majority of the shares or voting shares belong to natural persons resident in Brazil or to companies incorporated under Brazilian law with headquarters and management in Brazil.
Coverage Fixed, mobile and internet telecommunication service providers
Fiscal Restrictions

BRAZIL

Since 2013

Chapter Public Procurement  |  Sub-chapter Technology mandate
Decree No. 8.135/2013
Presidential Decree 8.135, adopted in 2013, imposes cyber auditing requirements on IT systems used by Brazilian government entities. The decree continues to be implemented in stages and is a concern for technology companies because of the potentially prohibitive costs of having a system certified for an individual market.
Coverage Software
Fiscal Restrictions

BRAZIL

Since 2003

Chapter Public Procurement  |  Sub-chapter Technology mandate
Several guidelines, objectives and priority actions
Since 2003, the Brazilian government has begun to adopt the use of open source software (OSS) in many institutions. Brazil has been changing politically, and a group coordinated by the Brazilian government, the Information Technology Institute (ITI), has set the guidelines, objectives and priority actions for the implementation of OSS within the Brazilian government.

These guidelines instruct the Brazilian government, for example, to prioritize solutions, programs and services based on OSS that promote the optimization of resources and investments in information technology (IT), to adopt open standards and to increase OSS use in the public and private sectors. Furthermore, the Brazilian government is asked to expand the amount of services provided to citizens through OSS, to restrict the growth of software based on proprietary technology, to prioritize the acquisition of compatible hardware platforms for OSS and to strengthen the existing sharing of OSS inside and outside government. Other actions included in the guidelines aim to encourage and promote the domestic market to adopt new business models in IT and communications based on OSS and to create a national policy for OSS.

From these guidelines, several actions were undertaken by the Brazilian government to achieve these goals. In practice, the Brazilian government is actually using OSS and has created a portal to disclose the use of OSS in Brazil.
Coverage Software
Sources
Fiscal Restrictions

BRAZIL


Chapter Public Procurement  |  Sub-chapter Preferential purchase schemes covering digital products and services
WTO Government Procurement Agreement (GPA)
Brazil is not a party to the WTO Government Procurement Agreement (GPA).
Coverage Horizontal
Fiscal Restrictions

BRAZIL

Since January/February 2014

Chapter Public Procurement  |  Sub-chapter Preferential purchase schemes covering digital products and services
Decrees No. 8,184, 8,185, 8,186
In government procurement up to 20%, 25% and 18% of price preferences are applied to – respectively – locally produced printers and data processing machines, to locally produced executive jets as well as to certain locally produced IT equipment products from HS chapters 84, 85 and 90, and to local software services.
Coverage Printers, data processing machines, locally produced executive jets, local software services
Sources
  • European Commission, DG Trade, 11th Report on Potentially Trade-Restrictive Measures Identified in the Context of the Financial and Economic Crisis, 1 June 2013 – 30 June 2014: http://trade.ec.europa.eu/doclib/docs/2014/november/tradoc_152872.pdf
  • WTO, UNCTAD, OECD, Report on G20 Trade and Investment Measures (Mid-May 2014 to Mid-October 2014), 5 November 2014: http://www.oecd.org/daf/inv/investment-policy/12th-G20-Report.pdf
  • WTO Trade Monitoring Database
Fiscal Restrictions

BRAZIL

2011-2014

Chapter Public Procurement  |  Sub-chapter Preferential purchase schemes covering digital products and services
Plan "Brasil Maior" (2011-2014)
On 2 August 2011, the government of Brazil announced its plan "Brasil Maior" through which it intends to strengthen the productivity and competitiveness of the Brazilian industry. The instruments used to promote the manufacturing sector under these plans include credit lines under favourable conditions, public procurement, fiscal incentives, and border measures.

The following components of the plan concern the country's government procurement policy: (i) introduction of a preference margin for domestic products in the government procurement regulation; (ii) products originating in Brazil shall be allowed to cost up to 25 percent more than the equivalent imported product.

In order to accelerate the development of technology-based start-ups, market access programs and procurement of goods and computer services for the federal public administration are addressed.
Coverage Computer and related services (amongst other sectors)
Fiscal Restrictions

BRAZIL

5 February 2013 until 31 December 2015

Chapter Public Procurement  |  Sub-chapter Preferential purchase schemes covering digital products and services
Decree No. 7,903
Brazil applies a preference margin of 15% to selected products (see coverage) which have been produced in Brazil, i.e. the price offered can be 15% higher than that of bids which include goods of non-domestic origin. Besides the preference margin there is also an “additional margin of preference” of 10% for those products that have not only been produced but also developed in Brazil, i.e. 15% of preference margin for products produced in Brazil plus additional 10% for products also developed in Brazil. The barrier was reported by the US to the WTO in 2013.
Coverage Various IT systems with switches (Mercosur Common Nomenclature (NCM) 8517.62.3 – all codes), various routers (NCM 8517.62.4 – all codes), various wired data (voice, image etc.) reception and transmission tools (NCM 8517.62.5 – all codes), various digital emitters with incorporated receptors (NCM 8517.62.7 – all codes), various other tools (NCM 8517.62.9 – all codes), various parts, including printed circuits (NCM 8517.70 – all codes)
Fiscal Restrictions

BRAZIL

Since 15 December 2010

Chapter Public Procurement  |  Sub-chapter Preferential purchase schemes covering digital products and services
Buy Brazil Act, Law 12,349/10
The "Buy Brazil Act" 12.349/10 of 15 December 2010 amended federal laws of public procurement at the federal, state and municipal levels as well as for public entities. Foreign companies can participate in international tenders, but must be legally established in Brazil to take part in national tendering. However, the law foresees a preference margin for goods and services produced in Brazil of up to 25%. Given the significant influence of the state-controlled sector in Brazil due to its large size, discriminatory government procurement policies are a substantial trade barrier. For example, the European Commission has claimed that the Act constitutes a barrier for EU exports.
Coverage Horizontal
Fiscal Restrictions

BRAZIL

Since June 2012

Chapter Public Procurement  |  Sub-chapter Preferential purchase schemes covering digital products and services
Brazil's National Telecommunication Agency (ANATEL) application requirements
A case has been reported where local content requirements are applied to a government procurement scheme. ANATEL, Brazil’s National Telecommunications Agency, held an auction for spectrum frequencies in the 450 MHz and 2.5 GHz bands. Applicants were required to accept, as a condition for bidding on the spectrum, a commitment to give preferences to locally produced equipment in building out a network to use this spectrum. Applicants were also required to commit to meet specific milestones over time to ensure specific local content of the infrastructure, including software, installed to supply the licensed service. Applicants were also required to commit to purchase goods, products, equipment and systems for telecommunications and data networks with national technology, and ensure a 70% local content ratio in its infrastructure deployment after 10 years. USTR has raised its concerns with Brazil’s localization policy both bilaterally and at the WTO.
Coverage Equipment to build out a network to use spectrum frequencies in the 450 MHz and 2.5 GHz bands
Fiscal Restrictions

BRAZIL

Reported in 2013-2014

Chapter Taxation & Subsidies  |  Sub-chapter Discriminatory tax regime on online services
Sales tax
A company (Nexway) has reported that many Brazilian states require that tax declarations of online sales must be performed online in real-time. This is reported as a restriction as it is leading foreign firms to establish a local subsidiary in Brazil.
Coverage Online sales
Fiscal Restrictions

BRAZIL

Since March 2017

Chapter Taxation & Subsidies  |  Sub-chapter Discriminatory tax regime on online services
Solução de Consulta (SC 191/2017)
In March 2017, the Brazilian tax authorities released Solução de Consulta (SC 191/2017), confirming that the withholding tax and the 'Contribuição sobre Intervenção do Domínio Econônomico (CIDE)' tax should apply to payments made in relation to imports of software as a service from abroad.
Coverage Software services, including cloud computing