It follows text sent by ANATEL with respect to the need of the commercial representation letter:
"For information and disclosure among those interested in the certification, the understanding, from the legal standpoint of the ORCN, on the necessity of a foreign manufacturer's commercial representation letter for cases where the same manufacturer figures Only as a shareholder of the national entity:
The establishment of entrepreneurial Societies (legal persons) in Brazilian law is given in the form of the Brazilian Civil code.
According to art. 45 of the Brazilian Civil code, "It begins the legal existence of the legal persons of private law with the inscription of the Constitutive Act in their registration".
The registration of entrepreneurial company (legal person for profit in general) takes place in the commercial Board (trade record) of the state in which it owns its headquarters.
From the record the legal person becomes entitled to have rights and obligations in the civil sphere and has a legal personality distinct from that of its partners.
In this sense, the disposition of art is clarified. 985 of the Civil code:
Art. 985. The company acquires legal personality with the inscription, in its own record and in the form of the law, of its constituent acts "
The best doctrine teaches that "the legal person does not get confused with the people who make it (…) It has legal personality distinct from that of its partners, are unmistakable people, independent among themselves (Rabbit, Fabio Ulhôa. In Manual of commercial law, 26 ed., SP. Saraiva, 2014, p. 3).
Whereas legal persons have a legal personality distinct from that of their partners, the waiver of a letter of representation is only possible when the Representative's Social contract (applicant for approval) contains in his object the representation of the Foreign legal partner (foreign plant who wishes to have his product approved in Brazil) and has signed the social contract. In this case, as the social contract is a manifestation of the free will of the contracting partners, there should be an express authorisation within it for the representation, which authorizes the waiver of the Charter.
Otherwise, if the social contract does not express the powers of representation, the letter is necessary.
Finally, it is important to note that the letter of representation is currently the responsibility of the applicant for approval in accordance with the arts. 28, § 2 C/C 29, V, of the regulation for the certification and approval of telecommunications products, established by Res. 242/2000. "
The IBRACE group remains available for the clarification of doubts.