Aviation Regulation Comparative Guide

• Published date: 21 September 2020
• Subject Matter: Finance and Banking, Corporate/Commercial Law, Transport, Insolvency/Bankruptcy/Re-structuring, Financial Services, Corporate and Company Law, Insolvency/Bankruptcy, Contracts and Commercial Law, Aviation, Leasing
• Law Firm: Basch & Rameh Advogados Associados
• Author: Ms Nicole René G. e Cunha and Carlos G.E. Rameh

1 Legal framework

1.1 Which legislative and regulatory provisions govern the aviation sector in your jurisdiction?

The Brazilian Aeronautical Code (Federal Law 7.565/86) is the main statute governing commercial aviation in Brazil. Until 2005 the aviation sector was mainly regulated by the Aviation Civil Department (DAC), which was a department directly subordinated to the Ministry of Aeronautics and mainly comprised of military personnel.

Federal Law 11.182/2005 created the National Civil Aviation Agency (ANAC), which replaced the DAC. ANAC became a functioning entity in 2006 and is an independent regulatory agency of the federal government reporting to the Ministry of Infrastructure. ANAC establishes rules on the certification and control of civil aviation, airport and aeronautic infrastructure. It maintains the Brazilian Aeronautical Register (RAB), a specific register for aircraft in Brazil. The RAB is responsible for the registration of aircraft, the registration of liens and encumbrances over aircraft, and the issuance of registration certificates for Brazilian aircraft.

The Ministry of Defence is responsible for the Brazilian Air Force, the Brazilian Navy and the Brazilian aeronautical sector. Until 2018 airports in Brazil were administrated by Infraero (a public federal administration airport entity) subordinated to the Ministry of Defence. Since 2018, the Brazilian government began to privatise airports and this trend has continued until now.

Other public entities with responsibilities in the aviation sector include:

• the Centre of Investigation and Prevention of Aeronautic Accidents (CENIPA), which is responsible for reporting to the Brazilian Aeronautics Command and for investigating civil aviation accidents and accidents in the Brazilian Air Force, based on the International Convention of Civil Aviation;
• the Department of Control of the Air Space, which is also subordinated to the Brazilian Aeronautics Command; and
• the Brazilian Civil Aviation Committee, which assists the president of Brazil.

1.2 Which bilateral and multilateral instruments on aviation have effect in your jurisdiction?

Brazil has ratified many bilateral and multilateral international treaties. The principal multilateral treaties are as follow:

• the Warsaw Convention (promulgated by Federal Decree 20.704/1931);
• Montreal Protocols 1 and 2 (promulgated by Federal Decree 2.860/1998);
• Montreal Protocol 4 (promulgated by Federal Decree 2.861/1998);
• the Chicago Convention (promulgated by Federal Decree 21.713/1946);
• the Tokyo Convention (promulgated by Federal Decree 479/1969); and
• more recently, the Cape Town Convention (promulgated by Federal Decree 8.008/2013).

1.3 Which bodies are responsible for enforcing the applicable laws and regulations? What powers do they have?

Once ratified in Brazil, international treaties have the same status as federal ordinary laws. As described in question 1.1, different bodies in Brazil have the responsibility for regulation and control of the different aviation sectors and the enforcement of relevant laws and regulations.

Any conflict in the application of a federal law and a convention should be resolved by application of the concepts of 'specialty' and 'more recent law'. Such conflicts are usually brought before the local courts through specific case law. Most of the regulated areas of aviation law fall under the jurisdiction of the federal courts; whereas commercial aviation matters fall under the jurisdiction of the different Brazilian state courts, depending on jurisdictional tests.

1.4 What is the regulators' general approach in regulating the aviation sector?

ANAC and the other public bodies described in question 1.1 issue multiple local regulations and frequently monitor the aviation sector in accordance with their jurisdiction.

2 Licensing and market access

2.1 What licences are required to provide aviation services in your jurisdiction? Does this vary depending on route?

In accordance with Article 181 of the Brazilian Aeronautical Code, national air transport services (which are considered a public service) may be provided only by companies constituted under the laws of Brazil, with their headquarters in Brazil and with their principal place of business in Brazil. Since the enactment of the Federal Law 13.842/2019, Articles 184 and 185 of the Brazilian Aeronautical Code, Brazilian companies interested in obtaining authorisation to operate as a concessionary of public services or non-regular services do not need to submit corporate documents for previous approval of the National Civil Aviation Agency (ANAC). Corporate documents must be approved by the local board of trade (similarly to any other commercial entity in Brazil) only. Once the necessary registrations with the board of trade have been obtained, the company must seek from the Operational Oversight Standards of ANAC the necessary instructions to obtain the operational certification. The aircraft should be registered together with the Technical Administration of the Brazilian Aeronautical Registry (GTRAB). Once operational certification has been obtained, the company will be authorised to request a concession to operate or authorisation to operate, depending on the type of service (ie, regular or non-regular air transport services). The request will be analysed by ANAC's board committee. If the concession or authorisation is approved, the company will sign the concession agreement and the decision will be published in the federal Official Gazette. After publication, the company will be authorised to operate as a concessionary of public services or as a non-regular air transport company, as the case may be.

In accordance with the Brazilian Aeronautical Code, international air transport of public services may be provided by national and foreign companies. To operate regular flights in Brazil, a foreign airline must:

• be designated by its country of origin;
• obtain authorisation to operate as a commercial entity in Brazil; and
• obtain authorisation to operate air services.

Foreign airlines authorised in accordance with the laws of their country of origin to operate as air transport companies can operate in Brazil under valid treaties or bilateral agreements between such states and Brazil or, in the absence of such treaties, in accordance with the general requirements of the Brazilian Aeronautical Code. Foreign companies must obtain overflights and landing permits from ANAC. The request for authorisation must be sent to the Market Access Management (GEAM/SAS) of ANAC in Brasilia or electronically through the ANAC website. All documents issued in another language in another country must be notarised and apostilled in accordance with the Hague Convention or consularised (in the case of countries which are not signatories to the Hague Convention. After apostille or consularisation, documents must be translated into Portuguese by a sworn translator and registered with a notary (in the register of titles and documents with jurisdiction). After GEAM/SAS has conducted its analysis, the company will receive establishment authorisation for the national territory. This does not in itself authorise the company to provide air transport services. Only once the establishment authorisation has been obtained can the company request authorisation to initiate the air transportation services. Such requests are filed either with GEAM/SAS at the headquarters of ANAC in Brasilia or electronically through the ANAC website. The following documentation must also be provided:

• the AVSEC declaration form, in which the air operator confirms its knowledge of the Safety Programme of Air Operators and compliance with the regulatory obligations;
• the air operator's AVSEC professional registration;
• the approval of the operational specifications together with oversight of operational standards;
• its Brazilian tax identification number;
• a certificate of good standing with the Guarantee Fund for the Length of Service (a labour law certificate regarding the company's employees);
• a certificate of good standing establishing the payment of federal taxes and other related tax liabilities; and
• a certificate of good standing of tax and other fines from ANAC.

The company must also appoint a legal representative in Brazil, which can be a company or an individual that will represent the company in the Brazilian territory.

Foreign non-regular air transport companies are also allowed to obtain authorisation to operate in Brazil through specific procedures defined by ANAC.

2.2 What nationality requirements must be satisfied to obtain a licence?

As described in question 2.1, concessions and authorisations from ANAC to provide air transport public services in Brazil are granted only to companies established under the laws of Brazil and with their main registered office in Brazil.

Foreign companies must obtain overflight and landing permits from ANAC. Foreign airlines authorised in accordance with the laws of their country of origin to operate as air transport companies can operate in Brazil under valid treaties or bilateral agreements between such states and Brazil or, in the absence of such treaties, in accordance with the general requirements of the Brazilian Aeronautical Code.

2.3 What financial requirements must be satisfied to obtain a licence?

In 2019 the Brazilian government passed Federal Law 13.842/2019, which amended the Brazilian Aeronautical Code, enabling national air public transport companies to have 100% foreign capital stock. This rule changed the prior legislation, which required that up to 80% of the voting capital stock of air companies be held by Brazilian nationals. There are no other specific financial requirements or authorisations of establishment in Brazil.

Although there is no specific financial requirement for international companies to obtain authorisation in Brazil, such companies must comply with any financial requirements of their local...