Public Policies and Administrative Law in Brazilian Tourism Maria Goretti Sanches Lima 19th IFTTA - International Forum of Travel

Public Policies and Administrative Law in Brazilian Tourism

Maria Goretti Sanches Limawww.direitoaplicado.com

19th IFTTA - International Forum of Travel and Tourism Advocates Conference Portugal

11 – 14 october 2007

Starting Point: The Public Administration structure..

In 1966 the Government founded an Agency named EMBRATUR. It was linked to direct Public Administration by a Regional Development Office of the Republic Presidency

Finally in 1992 EMBRATUR was linked to Ministry of Industry, Commerce and Tourism in order to Promote the tourism in the Country.

– The publicity emphasized beautiful beaches as the ones in Rio de Janeiro

– women and Carnaval.

This image remains the same.

Federal Executive Government

President

Ministry of Industry, Commerce and Tourism 1992

EMBRATUR

(agency)

www.direitoaplicado.com

structure...

The statute 9.649 in 1998 changed the government organization and EMBRATUR started reporting to Ministry of Sports and Tourism.


President

Ministry of Sports and Tourism

1998

Embratur


The Brazilian tourism plan.

In 2003 the statute 10.683 created the Ministry of Tourism and recreated the CNTur.

Over the last 4 years Brazilian Government through the Ministry of Tourism approved a plan named:

National Tourism Plan 2003 –2007 “Brazil international tourism destination.”

– The strategy was based in receptive tourism in order to:

Increase the international tourists flow in the country; and

Achieved growing role of the tourism trade

– Hence the entire omission to the domestic tourism was inferred.

Ministry of Tourism

2003


President

EMBRATUR


CNTur

National Tourism Counsel 2003

The Brazilian tourism plan ..

•This year the Ministry of Tourism announced:•National Tourism Plan 2007-2010 named “An inclusion trip”

•This strategy aims the domestic tourism market along with the receptive tourism.

•Some of the highlights:•Making domestic tourism stronger•Promoting tourism as a regional development factor.•Asserting access to the tourist package with reasonable financial conditions for:

• retired and pensioners people• workers• students

•Investing in professional qualification and generating employment andincome. •Asserting better conditions in order to promote the Country abroad.


The Brazilian tourism plan ...

Hence the first accomplishment took place last september with the program:

– Viaja Mais melhor idade (Travel more, better age) a plan turned to retired people and pensioners over 60 years old.

Besides, Tourism and Finance Ministries have negotiated, among other subjects, tax deduction in order to benefit hotel sectors and improve the

hospitality area.


Some historical law information regarding tourism in Brazil

In 1958 the Decree 44.863 was the first rule that mentioned “national tourism policy” .

In 1966 the Decree 55 (Decreto-lei 55 ) brought a kind of law sistematization about tourism plan.

The Decree 60.224 from 1967 depicts the best way the “national tourism policy” as it follows:

– Art.1o The National tourism policy comprehends the rules and guideline set combined in a plan about all issues linked to tourism development and its balance as national income source.

There are also some statutes among others as:– 6505/77 regarding tourism services.– 8181/91 considering EMBRATUR structure, organization and functions.– 8623/93 taking care of tourism guides’ profession.


Public Administration activities

After that brief political tourism plan and law scenario, let’s link an administrative law overview.

In Brazil Administrative law concerns to a set of principles and rules applied to the Government (direct and indirect public administration) and because of that it has autonomy that regarding to several issues including administrative intervention in social and economic domain.


The Administrative activities: engines and instruments regarding tourism public policies.

•Basically the Government administrative activities are:

Police power (regarding discretionary power toward to inspection , and authorization)Public services (under Government responsability, defined as public utility direct or not, as national security or public health.)Intervention (regarding trade limitations)Foment (promote the growth or development of a sector, encourage and stimulate it, e.g.BNDES’ loan )

The Federal Constitution applies in art.180 that all States and cities must promote and stimulate the tourism as a social economic development factor.

The executive is free to adopt appropriate policy, provided it conforms to the relevant statutory provision. Administrative law can be understood in the context of many different enviromental pressures that help to shape Public Administrators’ decisions.


Public Policies and the System Theory

InputsDemandsSupports

EnvironmentalInfluences

Courts, Media, Public Opinions, Congress..

OutputsPublic

Policies (e.g. rules,Orders)

PublicAdministration

Direct e.g.Tourism MinistryIndirect e.g.Embratur (agency)

Conversion process•Budget constraints•Formal procedures•Other limitations

That administrative decision making must be viewed within the context of the Ministry of Tourism its advisors and agencies’ environment.


The Tourism as fundamental right (?)

The Public Administration (Ministry of Tourism, CNTur and Embratur) must guide their activities according to the manner as the process system behave with inputs from environment influences hence there are principles and rules which must be considered , e.g.;

Universal Declaration of Human Rights (Fundamental rights)– the right to rest and leisure, including reasonable limitation of working hours and

periodic holidays with pay, is guaranteed by Article 24 of the Universal Declaration of Human Rights.

International Covenant on Economic, Social and Cultural Rights– Provide the same guarantee at Article 7

Brazilian Constitution – Since the art.4º II has declared that the country must recognize the human rights

principles in international relations we can inferred that rest and leisure linked to work is a fundamental right in Brazil, but is not precise to consider tourism as a fundamental right because rest and leisure is linked with the labor and tourism matches with the economy. Tourism could be a right but not a fundamental one. As a right demand an analyzis and coherent legislative framework as well.


The judicial control of public policies

Despite this, in Brazil the administrative act can be analized and controled in part by judges according to the reazonableness standard and on the other side by Government itself. We are going to focus on other engines as public policy effectiveness instruments:

Public Civil Action (Ação Civil Pública) – Statute 7.347/85– Purpose: protect the public and social state’s property, the

environment, the consumer, diffuse and collective interests. Non-accomplishment censure of fundamental principles (Arguição de

descumprimento de preceito fundamental)– Statute 9.882/99– Purpose: avoids or repairs damages at fundamental principles

resultant from the public power act.


(..)

Writ (general)– Statute 1.533/51– Purpose: Issued to an officer, directing him because some ilegality or

power abuse.

Popular action– Statute 4.717/65– Purpose: against Administrators act harmful to the public properties, the

environment, administrative morality or historical and cultural property.


Documents

Public Policies and Administrative Law in Brazilian Tourism Maria Goretti Sanches Lima 19th IFTTA - International Forum of Travel