Before analyzing the Executive Order #1,355/94, it is important to recall that Brazil was an original member of the GATT 1947.24 Brazil participated in all rounds of negotiations and signed most of the codes agreed between the rounds. Therefore, an overview of the presidential decrees promulgating the former rounds and the interpretation of these decrees by the public administration and the courts shall provide a clearer picture of what might be the expected as authentic interpretations of the Executive Order #1,355/94 enacting the WTO Agreement.
Before the Uruguay round, the GATT Tokyo round was made domestic law by means of Legislative Decrees #20 and #22 of December 5, 1986. These were enacted by the presidential order #93,941, of September 11, 1986 and #93,962 of January 22, 1987 (Antidumping Agreement and Subsidies and Countervailing Measures Agreement).
It is significant that different government administrative agencies as well as the Brazilian Supreme Court (STF) have addressed the issue of direct applicability of presidential Executive Orders of enactment of all GATT rounds of negotiations signed by the country. The Brazilian Treasury Department, in one of its legal opinions against tax “discrimination” involving imported products, held that the GATT agreement was fully incorporated into national legislation, as many other agencies of the Administration.25
After the incorporation into Brazilian domestic law of the Portuguese translation of the treaty by the presidential Executive Order of enactment, the text of the translation is considered, like any other statute, as law of the land. However, for the correct and proper day-to-day functioning of the executive branch, there are several regulations that must be issued for the Administration to comply with the new statute. For instance, a new patent statute requires several regulations to be issued in the federal registrar by the Administration and/or the Patent Office to ensure that the patent statute is properly operational.
The following paragraphs demonstrate that the Brazilian Administration interprets the Portuguese translations annexed to presidential decrees of enactment of treaties as authorizing legislation and as a statutory basis for acting and for publishing regulations.
Another example of direct applicability of the GATT Agreements can be found in Regulation #00-1227, of the Commission of Customs Policy (CPA), of March 24, 1987, published in the Federal Register on June 02, 1987, stating the following:
“The Commission of Customs Policy (CPA), on March 24, 1987, based on articles 2 and 3 of the Executive Order #93,941 of January 16, 1987 and Executive Order #93,962, of January 22, 1987, which enacted the Agreement on the implementation of Article VI of the GATT (Antidumping Agreement) and the Agreement on the Interpretation and Application of the Articles VI, XVI and XXIII of the GATT (Agreement on Subsidies and Countervailing Measures), and considering the convenience of establishing rules that discipline the administrative proceedings related to the measures provided in the mentioned Agreements, decides to adopt the following supplementary rules: Article 1. Antidumping rights and countervailing duties, subject matter of the Antidumping Agreement and of the Agreement on Subsidies and Countervailing Measures, shall be considered taxes of additional importation; Article 4. Every procedure seeking the opening of an investigation in order to establish the antidumping right or countervailing duty shall commence with the filing of a petition in the Protocol […] ¶ 2 The petition may be presented directly by a domestic industry affected, or in its behalf. In this Regulation, the term domestic industry must be understood in accordance to the provisions of article 4 of the Antidumping Agreement and ¶¶ 5 and 7 of article 6 of the Agreement on Subsidies and Countervailing Measures, encompassing the commercial establishments dedicated to the manufacture of agricultural, mineral or industrial goods. Article 16. Any interested party may request information available in the Commission of Customs Policy about the ongoing investigation, provided that this request is proven to be relevant in order to defend its interests and that it is not confidential within the rules established in ¶ 3 and 4 of Article 6 of the Antidumping Agreement and in ¶ 6 and 7 of Article 2 of the Agreement on Subsidies and Countervailing Measures.” (without emphasis in the original).
The Brazilian Congress also acknowledged the self-applicability of the presidential decrees of enactment of the GATT Rounds, and specifically of the Uruguay Round, when it approved a bill, later signed by the president into executive order #9,019, of March 30, 1995, on subsidies and countervailing measures.
The executive order #9,019 relates to the application of antidumping, subsidies and countervailing measures, as provided for in the Agreement on Subsidies and Countervailing Measures and on the Antidumping Agreement. Article 1 of the statute establishes that the antidumping, subsidies and countervailing rights will be applied by the administration in accordance with the presidential executive order of enactment of said treaties, by charging in Brazilian currency a percentage of the antidumping or subsidies found in accordance to the decisions PC/13, PC/14, PC 15 and PC16 of the preparatory committee of the GATT contracting parties of December 13, 1994, in an amount found to be enough to impair the damage or possibility of damage to the local industry.
Furthermore, article 2 of statute #9,019 establishes that the definition of the term “domestic industry” shall be as established by the Antidumping Agreement and the Subsidies and Countervailing duties Agreements. It is important to realize that statute #9,019 only cites the agreements, but does not define the term. Thus, the definition in a Brazilian domestic statute is incorporated from the express reference to an annex of the Executive Order of enactment of the WTO Agreement.
The examples examined herein are only a sample of hundreds of decisions by the Brazilian administration using the presidential decrees of enactment of GATT Rounds and codes as statutory authority for administrative actions. The Brazilian courts have upheld all these acts, as described below.
24 The original GATT agreement was signed by the Brazilian plenipotenciary on October 30, 1947. The Legislative Decree #43 approving the treaty was published on September 20, 1950. The presidential Executive Order of enactment, Executive Order #76,032, was only published on June 25, 1955. However, a statute enacted in 1948 guaranteed the “provisory” applicability of the treaty until it was enacted by a presidential Executive Order.
25 See, O fato e o ato, a white paper issued by the solicitor and legal advisor of the Agricultural Ministry stating the direct applicability of the Portuguese translation of the Agreement on the Application of Sanitary and Phytosanitary Measures.