Brazil: KLA Newsletter - June

Last Updated: 17 July 2019
Article by Koury Lopes Advogados

On July 2, 2019, the Ministry of Justice published the Administrative Act # 618/19 that "Provides the procedure for communication of harmfulness or dangerousness of products and services after they were already placed in the market", in other words, the procedures to be adopted by the supplier in a recall.

The 6th article of the Consumer Procedure Code (CDC) provides as consumer's basic rights the "safeguard of life, health and safety against risks caused by practices in the supply of products and services considered hazardous or harmful".

The Administrative Act # 618/19 complements the CDC dispositions, especially article 10, which addresses the situations where the supplier is aware of the harmfulness or dangerousness of a product or service after it was placed in the market.

Among the 16 articles of the Administrative Act # 618/19, the article 2 should be highlighted as it established that within 24-hours the supplier must inform the Consumer Nacional Office about the beginning of any research in order to investigate a potential harmfulness or dangerousness of a product that has already been placed in the market. Therefore, in case there is any doubt regarding the harmfulness or dangerousness, the beginning of the investigation must be informed to the authorities within 24-hours. Also, the supplier has 10 business-days to conclude such investigation and, once the outcome is for the recall, the supplier will have 2 business-days to inform it to the Consumer Nacional Office.

The Administrative Act # 618/19 also provides the requirements to perform a recall, establishing that the communication to the consumer should be conveyed by, at least, a written form and a means of communication by sound and images. This evidence the concern of reaching the largest number of consumers and, therefore, reaching more effectiveness of the recall.

Related to the Administrative Act nº 618/19, on the same July 2, jointly, Ministry of Justice and Ministry of Infrastructures, jointly published the Joint Administrative Act # 3/19, which regulates the automotive recall, one of the most common and known among the consumers. One highlight of such act is the provision regarding a system, to be provided by the National Department of Transportation (DETRAN), by which the supplier will be able to register the recall's notifications that were sent to the owners of the vehicles and the attendance. In case the recall is not attended by the consumer, such information will be registered in the vehicle documentation.

The purpose of such legislation is not only to improve the recall procedure – by making the procedure clearer regarding deadlines, ways of communications, etc – but also to implement measures aiming more effectiveness of the procedure and, still, to provide to the Authorities a more qualified data. Considering what Ministry Sergio Moro affirmed that in the "there was only 40% attendance in the automotive industry recall in the last 5 years", for example, there is no question that the Administrative Acts under analysis have an important role to improve the Consumer National Defense Policy.

INTELLECTUAL PROPERTY

LAW N. 13.853/19 SANCTIONED BY THE PRESIDENT

On July 9, 2019, Law n. 13.853/19 that creates the Brazilian Data Protection Authority ("ANPD") and modifies and consolidates Law 13.709/18 ("LGPD") was enacted. Below are the main modifications and vetoes brought by the Law:

1. Review of decisions taken solely by automated processing of personal data. A relevant vetoed provision was the one related to the possibility of review by a natural person of decisions solely taken by the automated processing of personal data. With the consolidated wording of the LGPD, the review of decisions taken solely by automated processing of personal data remains possible, nonetheless, without the obligation of such review being mandatorily conducted by a human being.

2. Information Access Law.  Another vetoed provision related to the prohibition of data sharing, between the public sector and private companies, of personal data regarding data subjects that requested information access, as established by the Law n. 12.527/11 ("Information Access Law"). The rationale to veto this provision was the avoidance of legal insecurity, since several activities involving public policies may justify the sharing of personal data.

3. Data Protection Officer ("DPO"). It is no longer required for the DPO to have legal and regulatory knowledge. Further, the provision that the ANPD would regulate when one single DPO could be appointed for the entire group of companies was also vetoed.

4. Penalties. Finally, the penalties related to the possibility of partial suspension of the functioning of database and those related to the suspension or prohibition of the performance of data processing activities were also vetoed.

BRAZIL JOINS THE MADRID PROTOCOL FOR INTERNATIONAL TRADEMARK REGISTRATION

The World Intellectual Property Organization ("WIPO") recently received Brazil's instrument of accession to the Madrid Protocol. The Madrid Protocol is an international treaty that facilitates the registration of trademarks in several member countries of the Protocol.

The Madrid Protocol allows trademark owners based in Brazil to request, through a single application, the protection of their trademarks in the 121-member countries of the Protocol. The Madrid Protocol also has benefits in terms of reducing bureaucracy and centralization of international registration procedures and the decrease of costs for applicants who have an interest in seeking the protection of their trademarks in member countries.

It is important to note that the analysis of each trademark application needs to comply with the laws in force in each member country indicated at the time of the filing, respecting their national sovereignties.

The Madrid Protocol will become effective in Brazil on October 2, 2019. The Brazilian Patent and Trademark Office is still drafting rules and regulations on the matter, which should be published in the coming months.

WHITE COLLAR CRIME & CORPORATE INVESTIGATION

THE SUPERIOR COURT OF JUSTICE DECIDED THAT CAPITAL INVESTED IN FOREIGN FUNDS WITHOUT THE FILING OF THE APPLICABLE FORM TO THE TAX AUTHORITY CONSTITUTIES THE CRIME OF ILLICIT FINANCIAL FLOWS

The Brazilian Superior Court of Justice decided that investments in foreign funds are considered a "deposit" under the sole paragraph of article 22, of the Law 7492/1986 (Law of Crimes Against the Financial System). Therefore, having investments in foreign funds without filing the appropriate form to the tax authority may constitute the crime of illicit financial flows.

The article 22 of the Law 7492/1986 provides that one who "performs exchange transaction not authorized, in order to commit illicit financial flows" will be subject to a sentence of 02 (two) to 06 (six) years of imprisonment, and will be fined. The sole paragraph of article 22 provides that "will be subject to the same sentence one who, under any circumstance, performs, without legal authorization, currency outflow or currency drain, or keeps deposits without notifying the applicable government agency".

This decision was rendered in a case in which a man was indicted for illicit financial flows for investing his assets in a fund in the Cayman Islands, without filing the appropriate form to the Federal Revenue Office.

The Defense Attorneys underpinned that the investments in foreign funds do not constitute "deposits" under article 22 Law 7492/1986 and, therefore could not constitute the criminal offence of illicit financial flows. Despite the defense's arguments, the Court stated that the term "deposits" should be interpreted according to the Brazilian Financial System's interests. In addition, the Court stated that since the law did not specify what a deposit meant, the term should be interpreted broadly and should include not only deposits in checking accounts, but also assets invested in funds.

THE SUPREME FEDERAL COURT DECIDED THAT IT IS ILLEGAL FOR THE POLICE TO CONDUCT INTERVIEWS DURING DAWN RAID

The Brazilian Supreme Federal Court decided that it is illegal for the Chief of Police to carry out interviews during a dawn raid. According to the Court, there was a violation of the suspect's rights to silence and against self-incrimination, since he was not given a warning regarding his right to remain silent.

The Court underpinned that it had already considered illegal to issue bench warrants for the interview of suspects. The Court then decided that interviews during dawn raids should be deemed illegal, since they had similar goals as to the prohibited bench warrants.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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