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ANAC´s new resolution simplifies granting process of air services

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3/18/2016 12:00 AM Demarest News

​ANAC´s new resolution simplifies granting process of air services

The Brazilian National Agency of Civil Aviation (ANAC) published yesterday, March 17th, the Resolution n. 377, which brings a new regulation referring to the granting of public air services to Brazilian companies.

It establishes that a concession or an authorization will only be issued to Brazilian companies with headquarters in the country, and that have at least 51% (fifty one per cent) of voting capital belonging to Brazilians, including when or if there is an increase of capital stock. To this rule, however, there is an exception: in cases of reciprocity in aviation services agreements signed by the Brazilian Government, it is possible that the voting capital belonging to Brazilians be inferior to 51%. This exception will only be valid between the signing parties.

This is an important change in the regulation, considering that foreign parties may now own up to 49% (forty nine per cent) of the voting capital - the previous regulation established a limit of 20% (twenty per cent).

The procedure for the interested party to explore a public air service requires is composed by: (i) acquisition of previous approval of its constituting act by ANAC and present proof of the filing in the Commercial Registry (which can only be made after ANAC's approval); (ii) conclusion of the homologation and certification procedures, when applicable, according to the Brazilian Civil Aviation Regulation (RBAC) and the Brazilian Regulation of Aeronautic Homologation (RBHA); and (iii) to get a concession or authorization, whichever is applicable.

The concession to operate is valid for 10 (ten) years and the authorization, for 5 (five) years. Both can be renewed if the private party presents proof of compliance with its social objective and the applicable laws and regulations. The request for renewal shall be presented at least 3 (three) months before the expiration date.

It is important to notice that the effective exploration of public air service will only take place after the approval in all the bureaucratic hurdles and of all the presented documents, including tax documents.

It is mandatory that the interested party in obtaining the grant of concession or authorization of public air service be an aircraft operator in capable state of the operating, and possess a Certificate of Air Operator, according to the legal demands.

The extinction of this grant may happen for a few reasons:

  • Request from the company;
  • Unacceptable operating security conditions;
  • Recurrent noncompliance with the current legislation, regulation or contractual obligations set out in the concession or authorization agreement;
  • Bankruptcy;
  • Judicial or extra-judicial liquidation; or
  • Revocation or disfranchisement of the Certificate of Air Operator.

The new rules brought by the resolution simplify the whole procedure for  the concession or authorization of public air services to Brazilian companies, starting from the juridical operation of these companies to the participation of foreigners in the companies' voting capital.

The companies that wish to operate in the Brazilian public air services have now a less bureaucratic procedure to follow in order to obtain ANAC's concession and/or authorization.

Our Regulatory Team is prepared to provide legal assistance in all phases of the procedure within ANAC.

Demarest Advogados

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