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Is the WTO TRIPS Agreement
valid and self-executing in Brazil?

The Moment of Incorporation of the Presidential Executive Order into Domestic Law

 The exact moment of incorporation of the Portuguese translation of the presidential Executive Order into domestic law has become a controversial issue in the Brazilian courts. Several lawsuits have been filed recently regarding the TRIPS Agreement and no definitive interpretation has yet been given by the Brazilian Supreme Court.

Usually, the Portuguese translation is enforceable and takes effect on the same date as publication of the presidential Executive Order. The history and analysis of presidential executive orders of enactment of treaties show that when the Portuguese translation of the treaty becomes effective on a different day than the entering into effect of the presidential Executive Order, the text of the Executive Order will state this in a specific article.

That was the case, for example, in respect of the presidential Executive Order of enactment of the treaty extending benefits to Portuguese citizens residing in Brazil. The treaty was approved by Congress and then enacted by a presidential Executive Order of December 4, 1972 (#70,391). While the Executive Order itself took effect on December 4, 1972, it set out that the annex should only take effect and be fully executed /enforced on April 22, 1972, according to the established by article 17 of the treaty. 23

The same deferred enforcement of the Portuguese translation can be observed on the enactment of presidential order #1,968, of July 20, 1996, where the Executive Order stated that the convention would take effect and be enforceable only on August 14, 1996, even though the Executive Order of enactment was effective on the date of the publication.

An further example is the presidential Executive Order #1,855, of April 10, 1996, enacting the Convention 158 of the International Labor Organization, of June 22, 1982. The executive order, already enacted under the 1988 Constitution, stated that the Brazilian government had signed the convention on June 22, 1992, and that Congress had approved it through Legislative Decree #68, of September 16, 1992. Furthermore, the Executive Order of enactment also stated that the convention entered into force on November 23, 1985, and that the Brazilian instrument of ratification was deposited on January 5, 1995, effective as of January 5, 1996, according to article 16 of the convention.

Finally, the Executive Order of enactment of the Portuguese translation, issued on April 10, 1996, ordered that the convention should be enforced and followed on the same day of the publication of the presidential Executive Order.

Thus, as a matter of practice, three different mechanisms are used for the internalization of the Portuguese translation:

i) incorporating the translation on the same day as the enactment of the presidential Executive Order, issued right after the publication of the Legislative Decree by the Senate;

ii) deferral in time of the publication of the presidential Executive Order to the date chosen by the Administration, even if that takes several years;

iii) expressly stating a specific date in the Executive Order to have the translation entered into force.
Nevertheless, the issues can again be illustrated, using the TRIPS Agreement as an example. The WTO Agreement and the decisions of the Ministers,  determined that the WTO Agreement would enter into effect on January 1, 1995. The TRIPS, an annex to WTO Agreement, included some transitional periods for developing countries in article 65, meaning that these countries would have up to five years to implement the TRIPS requirements and standards. However, the presidential Executive Order promulgating the WTO Agreement (and the TRIPS also) has no specific provisions expressly deferring the application of part of the Portuguese translation of the TRIPS Agreement.

As already described, it is established in Brazil that the presidential Executive Order of enactment of a treaty incorporates the text of the Portuguese translation into domestic law. Thus, if the presidential Executive Order promulgating the WTO Agreement was enforceable and in effect on the date of its publication, giving direct applicability to the text of the Portuguese translation of the TRIPS agreement, what is the exact date that this translation shall be considered as law of the land: the date of the presidential Executive Order, or the date after the transition period stated in article 65 of the TRIPS agreement is added?

The issue has not reached the Superior Justice Court yet. However, the lower courts (federal district courts and federal appellate circuit courts) have found in favor of the immediate incorporation of the TRIPS agreement on January 1, 1995, due to the lack of an express provision in the Executive Order saying otherwise. The subject is fully explained by Gustavo Leonardos in an article published by the Max-Planck-Institute for Foreign and International Patent, Copyright and Competition Law in the IIC journal (28 IIC 75).

23 No Portuguese translation was made of this agreement, published in the annex of the presidential Executive Order of enactment in the language it was originally written, for obvious reasons.