In this article we analyze which situations call for companies providing public aviation services to submit their corporate acts for the approval of the National Civil Aviation Agency (ANAC) before they are filed with the competent board of trade.

Aviation services in Brazil are divided into two modalities: (i) public, which comprise specialized public aviation services and the services of public transportation of passengers, cargo, or mail, whether scheduled or not, domestic or international, such as those provided by airlines or by air taxi companies; and (ii) private, performed without remuneration and for the benefit of the aircraft operator, including sports activities, transportation reserved for the owner or operator of the aircraft, or specialized services provided for the exclusive benefit of the owner or operator of the aircraft.[1]

Unlike other companies subject to the regulations established by the Civil Code (Law No. 10,406, of January 10, 2002) and by the Brazilian Corporation Law (Law No. 6,404, of December 15, 1976), companies operating public aviation services must also observe the provisions of the Brazilian Aeronautical Code (Law No. 7,565, of December 19, 1986, or CBA) and Resolution No. 377, of March 15, 2016, and Ordinance No. 616, of March 16, 2016, both issued by ANAC.

As a result of these provisions, certain corporate acts of companies providing public aviation services must be submitted to ANAC for approval before they are filed with the competent board of trade.

The joint interpretation of articles 5 of Resolution 377 and 185 of the CBA allows us to conclude that, currently, only acts resulting in certain changes in ownership, corporate-type conversion, merger, or spin-off require prior approval by ANAC.

In this sense, Resolution 377 excludes the obligation to obtain prior approval for changes in constitutional documents unrelated to corporate ownership, corporate-type conversion, merger, or spin-off. Therefore, such documents can be submitted directly to the competent board of trade for filing. Acts exempted from prior approval must be forwarded to ANAC within 30 days after being filed with the board of trade.

When necessary, ANAC'S approval must be requested using the form provided as an exhibit to Ordinance 616.

Due to the implementation by ANAC of the Electronic Information System (SEI), the whole process of approval of corporate acts is electronically performed. Thus, ANAC'S consent ceased to be demonstrated by means of a stamp physically affixed to the relevant document and is now formalized by a letter digitally signed by the technician responsible for the approval. This letter must be sent to the board of trade along with the document to be filed.

A copy of the document filed with the board of trade must be sent to ANAC within three months of receipt of ANAC's approval.

In case of noncompliance with the legal requirement of prior approval by ANAC, the company may be ordered to pay a fine or have its authorization or concession to act as a provider of public aviation services cancelled.

1. Articles 175 and 177 of the Brazilian Code of Aeronautics (Law No. 7,565, of December 19, 1986)