WT/DS497/3  
 
18 September 2015  
(15-4880)  Page: 1/9  
  Original: English  
 
  BRAZIL – CERTAIN MEASURES CONCERNING TAXATION AND CHARGES 
REQUEST FOR THE ESTABLISHM ENT OF A PANEL BY JAPAN 
The following communication, dated 17 September 2015, from the delegation of Japan to the 
Chairperson of the Dispute Settlement Body, is circulated pursuant to Article 6.2 of the DSU. 
 
_______________ 
 
 My authorities have instructed me to request the establishment of a panel pursuant to Articles 4.7 and 6 of the WTO Understanding on Rules and Procedures Governing the Settlement of Disputes  
(DSU), Article XXIII of the General Agreement on Tariffs and Trade 1994  (GATT 1994), Article 8 of 
the Agreement on Trade-Related Investment Measures  (TRIMs Agreement), and Articles 4.4 and 
30 of the Agreement on Subsidies and Countervailing Measures  (SCM Agreement) with respect to 
certain measures concerning taxation and charges imposed by the Federative Republic of Brazil 
(Brazil) (DS497, Brazil – Certain Measures Concerning Taxation and Charges ). 
 
On 2 July 2015, Japan requested consultations with Brazil, pursuant to Articles 1 and 4 of the DSU, 
Article XXII:1 of the GATT 1994, Article 8 of th e TRIMs Agreement and Articles 4 and 30 of the 
SCM Agreement and with respect to certain measures concerning taxation and charges imposed by Brazil. The request was circulated on 9 Ju ly 2015 as document WT/DS497/1, G/L/1119, 
G/TRIMS/D/41, G/SCM/D108/1. Consultations were held on 15 and 16 September 2015 with a 
view to reaching a mutually satisfactory solution. Unfortunately, the consultations failed to settle the dispute. 
 
As a result, Japan respectfully requests that a Panel be established with the standard terms of reference as set out in Article 7.1 of the DSU with respect to the following matters:   
 
I. MEASURES IN THE AUTOMOTIVE SECTOR 
Brazil administers a tax on industrial products known as the IPI ( i.e. Imposto sobre Productos 
Industrializados ). In September 2011, Brazil raised the IPI tax rates applicable to motor vehicles 
by 30 percentage points, while providing for a redu ction by up to the same number of percentage 
points in IPI tax rates for domestically produced motor vehicles that satisfy certain conditions. In 2012, Brazil introduced a similar but more elaborate tax advantage scheme named Programa de 
Incentivo à Inovação Tecnológica e Adensamento da Cadeia Produtiva de Veículos Automotores  
("Incentive Programme for Technological Innovation and Consolidation of the Automotive Vehicle Supply Chain") or "INOVAR-AUTO". INOVAR-AUTO provides the advantage of lower IPI tax rates 
with respect to motor vehicles covered by the programme that are manufactured or imported by 
companies with INOVAR-AUTO accreditation ( habilitações ). INOVAR-AUTO accreditation is granted, 
under certain conditions, (i) for companies that manufacture motor vehicles in Brazil; (ii) for companies that obtain official approval from the relevant Brazilian authorities for their plans to 
invest in production facilities or industrial projects in Brazil; and (iii) for companies that market 
motor vehicles in Brazil without manufacturing activities. To be accredited, depending on the type of accreditation, companies must satisfy a set of  requirements, including in particular a minimum 
number of manufacturing activities in Brazil  and/or minimum levels of expenditure in Brazil on 
research and development, engineering, basic indust rial technology and capacity-building of actual 
and potential suppliers. 
 WT/DS497/3 
 
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  Once accredited, companies can earn IPI tax credits which can be used, under certain conditions, 
to offset up to 30 percentage points of the IPI otherwise due on the domestic sale of motor vehicles covered by the programme. Any remaining tax credits can be used to offset up to 30 percentage points of the IPI due on motor vehicles imported by the company, but only up to a 
specific number of motor vehicles. 
 The IPI tax credits that can be earned and used to offset the IPI are linked to the level of certain 
expenditures in Brazil, including ( inter alia ) on so called strategic inputs ( insumos estratégicos ) 
(i.e., automotive components),
1 tooling ( ferramentaria ) (i.e., equipment used in the production of 
motor vehicles or automotive components), rese arch and development, and capacity-building of 
automotive suppliers. Imported motor vehicles do not have the same ability to benefit from such 
tax credits as do domestic motor vehicles. Moreov er, the value of tax credits to be earned from 
expenditures on strategic inputs or tooling is re duced if the purchased strategic inputs or tooling 
do not have specified levels of Brazilian-origin content. Additional conditions for becoming 
accredited and/or earning and using IPI tax credits are provided in individual "Terms of 
Commitment" ( termos de compromisso ), which the Brazilian authorities require each accredited 
company to agree to. 
 
In addition, motor vehicles imported by a ccredited companies from a limited number of 
WTO Members ( i.e. Mercosur countries and Mexico) can benefit from a special reduction in the 
applicable IPI tax rate, whereas the availability of a similar reduction to vehicles imported from 
other Members is subject to a strict quantitative limitation. Vehicles imported from Uruguay enjoy 
even more favourable treatment, because no accreditation is required for companies to receive the same advantage.  
 
Without necessarily being exhaustive, Japan understands that INOVAR-AUTO and related measures are established and administered through the following legal instruments in particular: 
 
 Lei n° 12,546 of 14 December 2011; 
 Lei n° 12,715 of 17 September 2012; 
 Lei n° 12,844 of 19 July 2013; 
 Lei n° 12,996 of 18 June 2014; 
 Decreto  n° 7,819 of 3 October 2012; 
 Decreto  n° 8,015 of 17 May 2013; 
 Decreto  n° 8,294 of 12 August 2014; 
 Portaria MCTI  n° 296 of 1 April 2013; 
 Portaria MDIC  n° 106 of 11 April 2013; 
 Portaria MDIC  n° 113 of 15 April 2013; 
 Portaria Interministerial MCTI/MDIC  n° 772 of 12 August 2013; 
 Portaria MDIC  n° 280 of 4 September 2013; 
 Portaria MDIC  n° 297 of 30 September 2013; 
 Portaria MDIC  n° 257 of 23 September 2014; 
 Portaria MDIC  n° 290 of 14 November 2014 
 Portaria MDIC  n° 318 of 26 December 2014; 
 Convênio ICMS  n° 38 of 22 May 2013; 

 Convênio S/N° of 15 December 1970; 
 accreditations ( habilitações ) and related acts granted pursuant to INOVAR-AUTO; 
 Terms of Commitment ( termos de compromisso ) signed by accredited companies; 
                                               
1 The term "automotive components" is  used in this document  to refer to raw materials, parts and other 
components for the manufac ture of motor vehicles. WT/DS497/3 
 
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   as well as any amendments or extensions , any replacement measures, any renewal 
measures, any implementing measures, and an y other measures related to those listed 
above. 
 
The tax advantage scheme under INOVAR-AUTO and related measures, and each of the legal 
instruments through which they are established and administered – both individually and collectively, by and in themselves, or in conjunction with the increased IPI tax rate for motor 
vehicles – are inconsistent as such and as applied with Brazil's obligations under the following 
provisions of the GATT 1994, the TRIM s Agreement and the SCM Agreement: 
 Article I:1 of the GATT 1994, because the advantages, favours, privileges or immunities 
granted to some motor vehicles originating in some Members are not accorded immediately 
and unconditionally to like products originat ing in other Members. In particular, the tax 
advantages available to motor vehicles imported from Mercosur countries and Mexico are not available to motor vehicles imported from other Members including Japan. 
 Article III:2 of the GATT 1994, because imported motor vehicles are subject, directly or 
indirectly, to an IPI tax burden in excess of that applied, directly or indirectly, to like domestic products; and because imported motor vehicles and directly competitive or 
substitutable products that are domestically produced are taxed in a manner that affords 
protection to domestic production.
  
 Article III:4 of the GATT 1994, because motor vehicles, automotive components, and tooling 
imported into Brazil are accorded less favourable treatment than that accorded to like 
products of Brazilian origin, as a result of the conditions for accreditation and for earning 
and using IPI tax credits. 
 Article III:5 of the GATT 1994, because the criteria  and/or requirements to benefit from tax 
advantages under INOVAR-AUTO, including ( inter alia ) the requirement to perform certain 
manufacturing steps in Brazil, and the reduction in the IPI tax credits based on the level of local content in automotive components and tooling, amount to internal quantitative 
regulations relating to the mixture, processing or use of products, which require that 
specified amounts or proportions of products be supplied from domestic sources; and because the said criteria and/or requirements also amount to internal quantitative regulations that are applied so as to afford protection to domestic production. 
 Article 2.1 of the TRIMs Agreement, separately and in conjunction with Article 2.2 and with 
paragraph 1(a) of the Agreement's Illustrative List, because INOVAR-AUTO and related legal instruments are TRIMs that are inconsistent with Article III of the GATT 1994; and because 
they require the purchase or use of products (including automotive components and/or 
tooling) from domestic sources in order to obtain tax advantages. 
 Articles 3.1(b) and 3.2 of the SCM Agreement, because the programme and related legal 
instruments are and/or confer subsidies within the meaning of Article 1.1 of the 
SCM Agreement that are contingent upon the use of domestic over imported automotive 
components and/or tooling. 
II MEASURES RELATING TO INFORMAT ION AND COMMUNICATION TECHNOLOGY, 
AUTOMATION AND RELATED GOODS 
A. Measures at issue 
In an effort to develop its information and communication technology (ICT), automation and 
related sectors, the Brazilian government has established several programmes that provide 
economic incentives, including but not necessarily limited to exemption from and/or reduction in taxes, duties, contributions and charges, to dome stic entities engaged in the production, import, 
and export of goods and services in these se ctors. Since 1991, Brazil has implemented tax 
advantage programmes which affect a number of products in the ICT and related sectors, 
including: (1) the Informatics Programme, created under the Lei de Informatica
2 
("Informatics Law"), decreed in 1991 and later amended in 2001; (2) Programa de Incentivos ao 
                                               
2 Lei nº 8,248 of 23 October 1991, as amended by Lei nº 10,176 of 11 January 2001 and Law 13,023 of 
8 August 2014.  WT/DS497/3 
 
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  Setor de Semicondutores , PADIS3 (Programme of Incentives for the Semiconductors Sector"), 
2007; (3) Programa de Apoio ao Desenvolvimento Tecnológico da Indústria de Equipamentos para 
TV Digital , PATVD4 ("Programme of Support to the Technolo gical Developments of the Industry of 
Digital TV Equipment"), 2007; and (4) Programa de Inclusão Digital5 ("Digital Inclusion 
Programme"), 2005. 
 
1. Informatics Programme 
Brazil's Informatics Programme is set up and implemented through the Informatics Law6 and 
related legal instruments. The programme reduces the IPI obligation for companies that develop or produce information technology and automation goods and services, and also invest in information technology research and development activities in Brazil. To benefit from the tax advantages 
under the Informatics Programme, companies must be qualified, or "accredited" ( habilitadas ), by 
means of an administrative decision ( Portaria ) granted by relevant ministries. In order to be 
accredited and benefit from the tax advantages, they must, inter alia , produce relevant products in 
Brazil in accordance with the terms of a particular Processo Produtivo Básico ("basic production 
process"), or PPB. The PPB is "a minimum set of operations performed at a manufacturing facility that characterises the actual industrialization of a given product" issued by the executive branch 
for a product or products. The PPB usually sets forth the minimum manufacturing steps to be 
conducted in Brazil and/or requires certain raw materials, parts and components incorporated in the product to be produced in Brazil (sometimes in compliance with additional PPBs).  
For accredited companies, the Informatics Programme reduces and/or exempts IPI tax obligations 
otherwise due on the sale of the manufactured products. Products that are considered as "developed" in Brazil benefit from additional  tax advantages. In addition, the Informatics 
Programme also suspends the IPI tax otherwise due on domestic sales of raw materials, 
intermediate goods and packaging materials used in the production of the relevant products, 
and/or assures the maintenance and use of tax credits against IPI tax paid on purchase of such 
raw materials, intermediate products and packing materials.  
 Without necessarily being exhaustive, Japan understands that the Informatics Programme is established and administered through the following legal instruments in particular: 
 
 Lei n° 8,248 of 23 October 1991; 
 Lei n° 10,176 of 11 January 2001;  
 Lei n° 10,637 of 30 December 2002; 
 Lei n° 13,023 of 8 August 2014;   
 Decreto  n° 5,906 of 26 September 2006; 
 Decreto  n° 6,759 of 5 February 2009 (final and tr ansitional provisions), as amended by 
subsequent acts; 
 Decreto  n° 8,010 of 16 May 2013; 
 Decreto  n° 7,212 of 15 June 2010 (especially Chapter VI, Section II); 
 Portaria Interministerial MDIC/MCTI  nº 177 of 18 October 2002; 
 Portaria MCT  n° 950 of 12 December 2006; 
 Portaria Interministerial MCTI/MDIC/MF  nº 148 of 19 March 2007; 
 Portaria Interministerial MCTI/MDIC  nº 685 of 25 October 2007; 
 Portaria Interministerial MDIC/MCT  nº 170 of 4 August 2010; 
 Portaria MDIC  n° 267 of 30 August 2013; 
 Portaria SDP/MDIC  n° 1 of 18 September 2013; 
 Portaria MCT  n° 1,309 of 19 December 2013; 
                                               
3 Lei nº 11,484 of 31 May 2007, last amended by Decree 8,247 of 23 May 2014. 
4 Lei nº 11,484 of 31 May 2007. 
5 Lei nº 11,196 of 21 November 2005. 
6 Lei nº 8,248 of 23 October 1991. WT/DS497/3 
 
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   Portaria Interministerial MCTI/MDIC  nº 202 of 13 February 2014; 
 Portarias adopting PPBs pursuant to the provisions of the above mentioned instruments; 
 accreditations ( habilitações ) and related acts granted pursuant to the Informatics 
Programme; 
 as well as any amendments or extensions, any replacement measures, any renewal 
measures, any implementing measures, and any other measures related to those listed above. 
2. PADIS and PATVD 
Both PADIS and PATVD were established by Lei n° 11,484 of 31 May 2007. These programmes are 
implemented through a number of related regulations and instructions. Companies active in the manufacture in Brazil of semiconductor electronic  devices, information displays, and supplies and 
dedicated equipment for such semiconductor electr onic devices and information displays (PADIS), 
and companies active in the development and manufacture in Brazil of radio frequency signal transmitting equipment for digital televisions (PAT VD) are eligible for tax advantages. In order to 
benefit under the both programmes, companies must be qualified, or "accredited" ( habilitadas ), by 
the relevant ministries. For the accredited companies, both PADIS and PATVD eliminate certain taxes and charges, including the IPI tax and contributions to PIS/PASEP,
7 COFINS,8 PIS/PASEP-
Importação , COFINS- Importação9 due on the domestic purchase or importation of machines, 
appliances, instruments and equipment as well as software and supplies to be used for the development and production activi ties of the products mentioned above. In addition, PADIS and 
PATVD exempt the accredited companies from the payment of PIS/PASEP, COFINS and IPI 
otherwise due upon the sale of the above-mentioned products.  
 Under PADIS, semiconductor electronic device and information displays must be produced through 
minimum manufacturing steps in Brazil, and supplies and dedicated equipment must be 
manufactured in compliance with the PPBs in order to benefit from at least some of the advantages. Under PATVD, radio frequency signal transmitting equipment for digital televisions 
must be produced in compliance with the relevant  PPB or alternatively meet the conditions for 
being considered as "developed" in Brazil in order to benefit from at least some of the advantages. The beneficiaries of these programmes must invest  annually in research and development, etc., 
certain minimum amounts of money calculated based on their gross sales of the relevant products.  
 
Without necessarily being exhaustive, Japan understands that PADIS is established and administered through the following legal instruments in particular: 
 
 Lei n° 11,484 of 31 May 2007; 
 Decreto  n° 6,233 of 11 October 2007; 
 Decreto  n° 8,247 of 23 May 2014; 
 Instrução Normativa  RFB nº 852 of 13 June 2008; 
 Decreto  n° 7,212 of 15 June 2010 (especially Chapter VI, Section III); 
 Decreto  n° 6,759 of 5 February 2009 (especially Vo lume III, Title II, Chapter VII, Section 
VII), as amended by subsequent acts; 
 Joint Ordinance MCT/MDIC/MF 297 of 13 May 2008 establishing the procedures and deadline 
for analysis of the PADIS implementing Decreto n° 6,233 of 11 October 2007 (GTI-PADIS); 
 Interministerial Ordinance MCT/MDIC 290/2008; 
 Portarias establishing PPBs applicable under PADIS; 
 accreditations ( habilitações ) and related acts granted pursuant to the PADIS programme; 
                                               
7 PIS/PASEP is a regime that collects contributions to fund insurance for employees of private companies 
(Programa de Integração Social , or PIS) and civil servants ( Programa de Formação do Patrimônio do Servidor 
Público , or PASEP). 
8 COFINS, the Contribution for Social Security Financin g, requires contributions to fund social security. 
9 PIS/PASEP Importação  and COFINS Importação  impose contribution requir ements to the respective 
funds on imports of goods and services. WT/DS497/3 
 
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   as well as any amendments or extensions, any replacement measures, any renewal 
measures, any implementing measures, and any other measures related to those listed above. 
 
Without necessarily being exhaustive, Japan understands that PATVD is established and 
administered through the following legal instruments in particular:  
 Lei n° 11,484 of 31 May 2007; 
 Decreto  n° 6,234 of 11 October 2007; 
 Instrução Normativa  RFB nº 853 of 13 June 2008; 
 Decreto  n° 7,212 of 15 June 2010 (especially Chapter VI, Section IV); 
 Decreto  n° 6,759 of 5 February 2009 (especially Vo lume III, Title II, Chapter VII, Section 
VIII); 
 Interministerial Ordinance 291 of 07 May 2008; 
 Portarias establishing PPBs applicable under the PATVD; 
 accreditations ( habilitações ) and related acts granted pursuant to the PATVD programme; 
 as well as any amendments or extensions, any replacement measures, any renewal 
measures, any implementing measures, and any other measures related to those listed 
above. 
 
3. Digital Inclusion Programme 
Under the provisions of Lei n° 11,196 of 21 November 2005, as amended, and associated 
regulations, the so-called "Digital Inclusion Programme" exempts producers of "digital products" (such as computers, routers, smartphones and other hardware) from payment of PIS/PASEP and 
COFINS contributions otherwise due on sales of goods and services. In particular, contributions to 
PIS/PASEP and COFINS on the gross revenue of retail sales are reduced to zero. This reduction is applicable to products including: digital processing units, portable digital automatic machines for 
data processing that weigh less than 3.5 Kg, automatic data processing machines, keyboards and 
mouses, modems, portable automatic data processing machines, portable telephones, and customer's terminal equipment (digital routers). The Digital Inclusion Programme requires that the goods in question be produced or developed in Br azil in accordance with PPBs in order to benefit 
from the tax advantages.  
 Without necessarily being exhaustive, Japan understands that the Digital Inclusion Programme is 
established and administered through the following legal instruments in particular: 
 
 Lei n° 11,196 of 21 November 2005; 
 Lei n° 12,507 of 11 October 2011; 
 Lei n° 12,715 of 17 September 2012; 
 Lei n° 13,097 of 19 January 2015; 
 Decreto  n° 5,602 of 6 December 2005; 
 Portaria MC nº 87 of 10 April 2013; 
 Portaria STE n° 2 of 26 August 2013; 
 Other Portarias establishing PPBs applicable under the Digital Inclusion Programme; 

 as well as any amendments or extensions, any replacement measures, any renewal 
measures, any implementing measures, and any other measures related to those listed above. 
 WT/DS497/3 
 
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  B. Legal Basis 
The Informatics Programme, Digital Inclusion Pr ogramme, PADIS, and PADTV, and each of the 
legal instruments through which they are established and administered – both individually and collectively – are inconsistent as such and as applied with Brazil's obligations under the following 
provisions of the GATT 1994, the TRIM s Agreement and the SCM Agreement:  
 
 Article III:2 of the GATT 1994, because imported ICT, automation and related products are 
subject, directly or indirectly, to internal tax burdens in excess of those applied, directly or 
indirectly, to like domestic products; and because imported ICT, automation and related products and directly competitive or substitutable products that are domestically produced are taxed in a manner that affords protection to domestic production. 
 Article III:4 of the GATT 1994, because the conditions for accreditation result in less 
favourable treatment for imported products than that accorded to like domestic products; and because the requirement to use local inputs  and equipment in the production of ICT, 
automation and related products results in less favourable treatment for imported inputs and 
equipment than that accorded to like domestic products.  
 Article III:5 of the GATT 1994, because the criteria  and/or requirements to benefit from tax 
advantages under the respective programmes, including ( inter alia ) the requirement to 
perform certain manufacturing steps in Brazil, and the minimum levels of local content or national value added (including those impose d under the terms of the corresponding PPBs), 
amount to internal quantitative regulations relating to the mixture, processing or use 
products in specified amounts or proportions, which require that a specified amount or 
proportion of the final product be supplied from domestic sources; and because the said criteria and/or requirements also amount to internal quantitative regulations that are applied 
so as to afford protection to domestic production. 
 Article 2.1 of the TRIMs Agreement, separate ly and in conjunction with Article 2.2 and 
paragraph 1(a) of the Illustrative List in the Annex to the TRIMs Agreement, because the 
programme and related legal instruments are TRIMs that are inconsistent with Article III of 
the GATT 1994; and because they require the purchase or use of products ( i.e., Brazilian 
inputs and manufacturing equipment) from domestic sources in order to obtain tax advantages.  
 Articles 3.1(b) and 3.2 of the SCM Agreement, because the programmes and related legal 
instruments are and/or confer subsidies within the meaning of Article 1.1 of the SCM Agreement that are contingent upon the use of domestic over imported inputs and 
equipment. 
C. Alternative Claim 
Products imported into Brazil, including from Japa n, are subject to charges collected at the border 
under the instruments known as PIS/PASEP- Importação  and COFINS- Importação . Japan notes that 
Brazil levies in parallel the "contributions" known as PIS/PASEP and COFINS on the turnover of domestic companies. PIS/PASEP- Importação  and COFINS- Importação  were introduced several 
years after the creation of PIS/PASEP and COFINS. Japan understands that Brazil considers the 
PIS/PASEP- Importação  and COFINS- Importação  as charges which form part of Brazil's system of 
internal taxes, rather than as "other duties or charges" on imports (within the meaning of Article II:1(b) of the GATT 1994). 
 
In the event that the Panel finds that the PIS/PASEP- Importação  and COFINS- Importação  are not 
internal taxes falling under Article III:2 of th e GATT 1994, Japan submits that the PIS/PASEP-
Importação  and COFINS- Importação  are inconsistent, as such and as applied , with Brazil's 
obligations under Article II:1(b) of the GATT 1994,  because "other duties or charges" are imposed 
on ICT, automation and related goods imported fr om Japan, in excess of the duties and charges 
set forth in Brazil's Schedule of Tariff Concessions. WT/DS497/3 
 
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  III MEASURES PROVIDING TAX ADVANTAGES TO EXPORTERS 
Brazil has put in place certain programmes that confer benefits to "predominantly exporting 
companies" in the form of a suspension, and in at least some cases a subsequent exemption (or conversion to a zero rate), of taxes otherwise due in relation to their acquisition of capital goods 
(i.e., machinery, tools, instruments and other equipment) and inputs ( i.e., raw materials, 
intermediate goods and packaging materials).  
A. RECAP 
RECAP is Brazil's "Special Regime for the Purchase of Capital Goods for Exporting Enterprises" 
(Regime Especial de Aquisição de Bens de Capital para Empresas Exportadoras ), established under 
Lei n° 11,196 of 25 November 2005 and Decreto  n° 5,649 of 29 December 2005, and 
implemented through a number of related regulati ons. Under this programme, Brazil suspends the 
application of several taxes and charges including PIS/PASEP, COFINS, PIS/PASEP- Importação  and 
COFINS- Importação  pertaining to the domestic purchase or importation of machinery, tools, 
instruments and other equipment by "predominantly exporting companies",
10 generally including 
companies that obtained at least 50 percent of th eir gross turnover from exports in the preceding 
calendar year as well as companies that did not meet such a 50 percent export threshold but 
commit to do so over the next three years. The suspension ultimately becomes a zero rate when 
certain conditions are met.   In order to benefit from RECAP, "predominantly exporting companies" must obtain "accreditation" 
(habilitação ) from the Secretariat of the Federal Revenue in the Ministry of Finance ( Secretaria da 
Receita Federal of the  Ministério de Fazenda ). They may enjoy the benefits under RECAP on 
condition that they undertake to maintain for the following two or three years (as the case may 
be) a level of exports equal to or higher than 50 percent of their annual gross turnover and then 
fulfil those undertakings.  
Without necessarily being exhaustive, Japan understands that RECAP is established and 
administered through the following legal instruments in particular:  
 Lei n° 11,196 of 25 November 2005; 
 Lei n° 12,715 of 17 September 2012; 
 Decreto  n° 5,649 of 29 December 2005; 
 Decreto  n° 5,789 of 25 May 2006; 
 Decreto  n° 6,759 of 5 February 2009 (especially Vo lume III, Title II, Chapter VII, Section 
IV); 
 Instrução normativa SRF  n° 605 of 4 January 2006; 
 accreditations ( habilitações ) or registrations ( registros ), and related acts, pertaining to 
individual "predominantly exporting companie s" granted pursuant to the RECAP programme; 
 as well as any amendments or extensions, any replacement measures, any renewal 
measures, any implementing measures, and any other measures related to those listed 
above. 
 
The RECAP programme and each of the legal instruments through which it is established and 
administered – both individually and collectively – are inconsistent as such and as applied with 
Articles 3.1(a) and 3.2 of the SCM Agreement, beca use they are and/or confer subsidies within the 
meaning of Article 1.1 of the SCM Agreement that  are contingent upon export performance.  
 
B. Export-Contingent Subsidies Concerning  the Purchase of Raw Materials, 
Intermediate Goods and Packaging Materials 
Brazil also provides IPI, PIS/PASEP, COFINS, PIS/PASEP- Importação  and COFINS- Importação  tax 
suspensions for predominantly exporting entities wi th regard to their purchases of raw materials, 
intermediate goods and packaging materials. Under Lei n° 10,637 of 30 December 2002, 
                                               
10 Lei nº 11,196 of 25 November 2005. WT/DS497/3 
 
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  as amended, and Lei n° 10,865 of 30 April 2004, as amended, Brazil suspends the application of 
IPI, PIS/PASEP, PIS/PASEP- Importação , COFINS and COFINS- Importação  for the benefit of those 
entities that received at least 50 percent of their gross turnover from exports in the preceding year. The suspension of the PIS/PASEP and COFINS contributions expires upon certain 
circumstances such as exportation or sale of the final goods incorporating the raw materials, 
intermediate goods and packaging materials for which the application of these taxes is suspended.
11 A similar rule applies to the IPI.12 
 
Without necessarily being exhaustive, Japan understands that these export-contingent subsidies are established and administered through the following legal instruments in particular:  
 Lei n° 10,637 of 30 December 2002; 
 Lei n° 10,865 of 30 April 2004; 
 Lei n° 12,715 of 17 September 2012; 
 Decreto  n° 6,759 of 5 February 2009 (especially Volume III, Title I, Chapter VII, and 
Volume  III, Title II, Chapter VII, Section V); 
 Instrução Normativa  SRF nº 595 of 27 December 2005; 
 Instrução Normativa RFB  nº 948 of 15 June 2009; 
 Instrução Normativa RFB  nº 1,424 of 19 December 2013; 
 accreditations ( habilitações ) or registrations ( registros ), and related acts, pertaining to 
individual "predominantly exporting comp anies" granted pursuant to the scheme; 
 as well as any amendments or extensions, any replacement measures, any renewal 
measures, any implementing measures, and any other measures related to those listed above. 
These export-contingent subsidies and each of the legal instruments through which they are 
established and administered – both individually and collectively – are inconsistent as such and 
as applied with Articles 3.1(a) and 3.2 of the SCM Ag reement, because they are and/or confer 
subsidies within the meaning of Article 1.1 of th e SCM Agreement that are contingent upon export 
performance.   
* * * 
 
Japan asks that this request be placed on the agenda for the meeting of the Dispute Settlement 
Body expected to be held on 28 September 2015. 
 
 
__________  
                                               
11 Instrução Normativa SRF nº 595 of 27 December 2005. 
12 Instrução Normativa  RFB nº 948 of 15 June 2009.