Brazilian Supreme Court Suspends Opinion That Was Authorizing The Acquisition Of Rural Properties By Brazilian Companies Controlled By Foreigners, In The State Of São Paulo

Author:Mr Alvaro Schmidt Gallo Neto, Fernanda Haddad, Mauro Pedroso Gonçalves and Ricardo Quass Duarte
Profession:Trench Rossi Watanabe Advogados
 
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In a decision dated September 1, 2016, the Supreme Court Justice Marco Aurélio granted an injunction to suspend the Opinion nº. 461-12-E issued by the Magistrate in charge of administrative matters in the State of São Paulo, that had been approved to authorize Brazilian entities controlled by foreigners to buy rural property without with the limitations of the Federal Law Nº 5.709/197 in the State of São Paulo

Such opinion differs from the Opinion of the Attorney General's Office issued in August 2010 (Opinion nº LA-01), which had the following syllabus:

"RURAL PROPERTY - Acquisition by a Brazilian entity whose majority of shares are owned by foreigners residing outside Brazil or by legal entities headquartered abroad - Equivalence with foreign legal entity for the purpose of subjection to the regime established by Law 5709/1971 - § 1 of Article 1 of Law 5709/1971 - Not accepted by Federal Constitution of 1988 - Subjective enlargement of limiting private appropriation of rural property and unauthorized by Article 190 of Federal Constitution of 1988 - Original wording of Article 171 of the 1988 Constitution strengthens the revocation - The difference, there expressly provided, among Brazilian company and a Brazilian company with national equity was established with a view to the benefits and differential treatment, but not to the rights constraints - Article 171, in contemplating qualified legal reserve is incompatible with generic constraints - The reform introduced by Amendment No. 6/1995 confirms the non-reception - Limitation was in accordance with § 34 of article 153 of Federal Constitution of 1967, as amended by Amendment No. 1/1969,...

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