After the presidential message 489/94 was received by Congress in 1994, the approval of the WTO Agreement and all its annexes, including the TRIPS Agreement, became the subject of a bill for a Legislative Decree during the second semester of 1994.
This bill for the Legislative Decree was first approved in the House and then sent to the Senate. During the very last session of the Senate in December 1994, there were considerable lobbying efforts by the executive branch to have the bill for the Legislative Decree approved, since Article 3 of the Final Act required Brazil to accept the WTO Agreement with a view to its entry into force by 1 January 1995.7
The Brazilian executive lobbied for approval of the Legislative Decree in Congress during December 1994 in order to be authorized under the Constitution to deposit the instrument of ratification before January 1, 1995, and to enjoy original member status, as per ¶ 3 of the Final Act and Article XI, 1, of the WTO Agreement.
It is widely known that Brazilian constitutional and administrative laws do not give deference to the congressional records. The same is true for legislative history. However, there are transcripts of the Senate discussions when the bill was being voted that clearly show the lobbying efforts of the Administration and its struggle to have the instrument of ratification deposited before the end of 1994. The executive branch used all its persuasive tools, even sending the Ministry of Foreign Affairs (ambassador Celso Amorim) to personally lobby the congressman in the Senate.
The tight deadline for the Administration gave the Senate almost no time to consider and review the WTO Agreement. The congressional record shows that one Senator (Sen. Aloízio Bezerra) complained on the floor that several parts of the WTO Agreement being considered by the Senate were still in French and not in Portuguese.8 This incident demonstrates the lack of diligence and the considerable time pressure during the process under which Congress was considering the TRIPS Agreement. Several specific issues concerning the Agreement, such as the use of article 65 of the TRIPS agreement by the country to delay the implementation of the TRIPS Agreement obligations until the year 2000, were not fully discussed in the Senate in order to meet the executive branch deadline.
As an example, a specific proposal sponsored by Senator Antonio Mariz (amendment #1), requiring the country to use the rights granted in Article 65 of the TRIPS Agreement was specifically voted and rejected, upon the executive branch request, because if approved the bill and the amendment would have to return to the House for approval, which could not be achieved within the Administration self-imposed deadline. Thus, after severe lobbying from the executive in Congress conducted by Itamaraty (Ministry of Foreign Affairs), both the House and the Senate approved the bill for the Legislative Decree.
After the approval by Congress on December 15, 1994, the President of the Senate issued the Legislative Decree DL 30/94, according to article 48, item 28, of the Internal Senate Regulations, and rules #93, of 1970, and #18, of 1989.
The Executive Order gave advice and consent to the WTO Agreement, granting the executive branch the authority to deposit the instrument of ratification and to incorporate the treaty into Brazilian domestic law.
The relevant articles of the Legislative Order #30 are as follows:9
“Approves the Final Act Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations of the GATT The National Congress Executive Order: Article 1. The Final Act Embodying The Results of The Uruguay Round of Multilateral Trade Negotiations of the GATT, the list of concessions on tax and services and the International Bovine Meat Agreement are approved.
[…] Article 3.
This Legislative Decree shall be in effect on the date of its publication.”
Following the publication of the Legislative Decree in the Federal Register on December 15, 1994, the executive branch made the necessary arrangements to deposit the instrument of ratification of the WTO Agreement on December 21, 1994.
Although Brazil should have been considered internationally bound upon its ratification, in accordance to the treaty provisions, this act alone does not have the legal consequence of making the provisions of the WTO Agreement Brazilian domestic law.
According to the Brazilian constitutional statute, there are specific acts required to give domestic effect to treaties, and the absence of these actions render any treaty non-enforceable in the country. As explained in the next chapter, according to the Brazilian Supreme Court and commentators in the area, the lack of compliance with every step of the process for incorporation of the treaty into domestic law, even after the treaty was duly ratified abroad, prevent the treaty from enjoying the status of domestic law.
7 President Fernando Henrique Cardoso was elected on 3 October 1994. President Cardoso, who can be described as a sociologist and former Finance Minister responsible for President Franco's economic plan, is the head of state and head of the Brazilian government since 1 January 1995. He wrote the introduction to a book published in 1993 in Brazil about the relations between Brazil and U.S. over the patent issue, which the title translated, would be “the patent war between Brazil and US”. He has been showing a commitment to modernize the IPR system in Brazil since 1992, first as the Brazilian chancellor and after as the Finance Minister. President Cardoso has also worked to approve the current patent statute. For a chronology of those facts prior to the enactment of the Brazilian patent rule (Statute 9,279/96) see Maria Helena Tachinardi, A Guerra das Patentes: o conflito Brasil x EUA sobre a propriedade intellectual, São Paulo, Paz e Terra ed. (1993).
8 The transcripts can be found at Official Congress Gazette, (§ II) Thursday, December 15, 1994, p. 9225.
9 The Legislative Decree is very short because it does not have any annex.