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The Global Legal Monitor is an online publication from the Law Library of Congress covering legal news and developments worldwide. It is updated frequently and draws on information from official national legal publications and reliable press sources. You can find previous news by searching the Global Legal Monitor.

Brazil: Decree Eliminates Need for Visiting Visas for Nationals of Australia, Canada, United States and Japan

(Mar. 26, 2019) On March 16, 2019, Brazil enacted Decree No. 9,731 (Decreto No. 9.731, de 16 de Março de 2019), which unilaterally determines that nationals of the Commonwealth of Australia, Canada, the United States of America, and Japan who are holders of valid passports no longer need visiting visas.

The Decree applies to those who

I – enter, leave, transit and remain in the territory of the Federative Republic of Brazil, with no intention of establishing residence, for the purposes of tourism, business, transit, artistic or sports activities or in exceptional situations by national interest; and

II – stay for a term of up to ninety days, renewable for an equal period, provided that it does not exceed one hundred and eighty days, every twelve months, counted from the date of the first entry into the Country. (Id. art. 1 (translation by author).)

The Decree enters into force on June 17, 2019. (Id. art. 3.)

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Argentina: New Requirement Adopted for Foreigners Seeking Permanent Residence

(Mar. 25, 2019) On March 1, 2019, the Dirección Nacional de Migraciones (National Directorate on Immigration) adopted a measure requiring that foreigners who apply for permanent residence in Argentina prove they have had no criminal record during the ten years prior to their application. The new provision constitutes a seven-year increase over the previous requirement. (Jaime Rosemberg, New Requirements for Foreigners Will Take Effect in March, LA NACIÓN (Mar. 1, 2019) (in Spanish); Dirección Nacional de Migraciones, Disposición 1027/2019 DI-2019-1027-APN-DNM#MI, BOLETIN OFICIAL (official gazette), Mar. 6, 2019, InfoLEG website of the Ministry of Justice and Human Rights.)

Adopted in response to recent events in which people’s safety was endangered by foreigners, the new requirement is intended to prevent criminals from around the world from establishing residence in the country. (Rosemberg, supra.) The measure, which aims at reversing a more lenient immigration policy in force under previous administrations, will not be retroactive. (Id.)

According to immigration authorities, the provision will be applied in conjunction with other measures, such as the cross-linking of immigration data with Interpol, control of passengers arriving at airports, and deportation of foreigners who commit crimes, with the goal of establishing reciprocity with other countries. (Id.)

The government of Argentina will negotiate reciprocity agreements on immigration with border countries, from which 80% of the foreigners seeking permanent residence in the country arrive. (Id.)

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Brazil: New Law Prohibits Marriage of Persons Under 16 Years of Age

(Mar. 22, 2019) On March 12, 2019, Brazil enacted legislation to prohibit underage persons from marrying. The new law—Law No. 13,811 (Lei No. 13.811, de 12 de Março de 2019, Presidency of the Republic website)—amends article 1,520 of the Civil Code to establish that only persons who have reached the age of marriage determined in article 1,517 of the Civil Code may marry.

Article 1,517 of the Civil Code (CÓDIGO CIVIL, Lei No. 10.406, de 10 de Janeiro de 2002, Presidency of the Republic website) provides that a man and a woman who have not reached the age of majority may marry at age 16 if they have received authorization from both of their parents or their legal representatives. Article 5 of the Civil Code states that minority ceases at 18 years of age, when the person is entitled to practice all acts of civil life.

Before the amendment, article 1,520 of the Civil Code had established that those who had not yet reached the age of marriage according to article 1,517 would exceptionally be allowed to marry to avoid the imposition or enforcement of criminal penalties or in cases of pregnancy.

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Finnish Parliament Approves Law to Extend Legal Presence of UK Citizens

(Mar. 21, 2019) On March 5, 2019, the Finnish Parliament approved a government proposal to extend the right of citizens of the United Kingdom (UK) to remain in Finland until December 31, 2020. (Press Release, Eduskunta [Finnish Parliament], The Special Act to Secure British Citizens’ Right of Residence in Finland Approved (Mar. 6, 2019), Eduskunta website (in Swedish); Regeringens proposition [Government Bill] RP321/2018 rd, Eduskunta website (in Swedish).)

The law was introduced in consideration of the possibility that the UK may not ratify the European Union (EU) exit agreement before the March 29, 2019, deadline. The Finnish government in its justification for the proposal found that the risks of a UK exit (Brexit) without an agreement was high. (RP321/2018 rd.) If an agreement were not ratified before the exit date, the legal status of UK citizens in Finland would be voided. (Id.)

Under the new rules UK citizens who have previously registered their stay as EU citizens with the Migration Authority automatically receive the right to remain in Finland until Dec. 31, 2020. Thus, UK citizens and their family members would need not apply for a residency permit before March 29, 2019. The Finnish government fears that if all 5,000 UK citizens residing in Finland were to apply for a residency permit before March 29, 2019, the Migration Agency would be overwhelmed. (RP321/2018 rd.) Individuals who have not registered their stay by March 29, 2019, will not be allowed to remain in Finland.

The Act specifically applies to such citizens of Great Britain and Northern Ireland (UK) and their families who have arrived in Finland before the UK’s exit from the EU and registered their right to be present in Finland or filed a registration application with the Migration Authority before the exit. (1 § RP321/2018 rd.)

The law will be applied when the UK ceases to be a member of the EU, if the UK has not ratified an agreement with the EU regarding its secession. (3 § RP321/2018 rd.) If a UK citizen applies for a residency permit in accordance with the Finnish Aliens Act and is subsequently denied, the right to remain in Finland will lapse once the permit denial has become legally binding and, thus, can no longer be appealed.

Normally, a proposed Finnish law first goes through a committee and receives comments from stakeholders in a referral process. However, because of the urgent nature of the proposed law, no referral process was conducted in this case.

The Finnish Immigration Service (Migri) has previously encouraged UK citizens to register their presence in Finland as soon as possible in anticipation of this law. (British Citizen: Register Your Right of Residence as Soon as Possible, MAAHANMUUTTOVIRASTO (Jan. 25, 2019).) It has also encouraged UK citizens who have resided for more than five years in Finland to apply for a permanent residence permit. (Id.)

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Germany: Federal Fiscal Court Revokes Nonprofit Status of ATTAC

(Mar. 20, 2019) In a decision published on February 27, 2019, the German Federal Fiscal Court (Bundesfinanzhof, BFH), Germany’s supreme court for tax and customs matters, held that the activist group ATTAC was no longer eligible for nonprofit status due to its general political activity and its calls for concrete actions and demands. The BFH remanded the case back to the lower court. (BFH, Jan. 10, 2019, Docket No. V R 60/17, ECLI:DE:BFH:2019:U.100119.VR60.17.0, BFH website.)

Facts of the Case

ATTAC has been registered in the German Register of Associations since 2003. According to its bylaws, which were amended in November 2010, it pursues the following objectives: “promotion of education, science, and research; promotion of the protection of the environment and of communities, democracy and solidarity with a particular focus on the economic and social impact of globalization. The association supports international understanding and peace.” (BFH para. 1.) Between 2010 and 2012, the association publicly presented its view on a variety of topics, among them the financial and economic crisis, taxation of financial markets, redistribution of wealth, a financial transaction tax, taxes to fight poverty, Blockupy, the Arab spring, feminist economics, the Euro crisis, climate protection, and global climate justice. (Id. at 2.)

The plaintiff started various political campaigns to present its views on, among other things, a government austerity package, the financial transaction tax, a double tax treaty with Switzerland, combating tax evasion, tax advantages for investment funds, a railway project, weekly working hours, an unconditional basic income, and wage inequality. (Id. at 3–6.)

In the spring of 2014, the plaintiff received notice from the tax office that its public-benefit status had been revoked retroactively as of the year 2010. In justifying this decision, the tax office argued that ATTAC had pursued activities of a political nature beyond its prescribed public-benefit purposes. (Id. at 7.)

Relevant Law

The German Fiscal Code provides that companies that directly and exclusively serve public-benefit, charitable, or religious purposes qualify for tax-exempt status. A corporation serves public-benefit purposes “if its activity is dedicated to the altruistic advancement of the general public in material, spiritual, or moral respects.” The law provides an exhaustive list of public-benefit purposes which include, among other things, “the general advancement of democratic government,” but explicitly excludes “endeavours which are solely in pursuit of specific individual interests of a civic nature.” (Id. at 17; ABGABENORDNUNG [AO] [FISCAL CODE], Oct. 1, 2002, BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 3866; 2003 BGBl. I at 61, as amended, § 52, German Laws Online website.)

Ruling

The Court reiterated that, according to its established case law, “the altruistic advancement of the general public” does not include engaging in political purposes. (BFH at 18.) In citing its case law it stated that “a political purpose cannot be the sole or main purpose specified in the bylaws of a corporation,” “nor can the association solely or mainly pursue a political objective with its actual management.” (Id. (translation by author).) Neither “influencing the development of political opinion” nor “forming the people’s political will” are part of the “advancement of the general public.” (Id.)

However, the Court stated that general political activity must be differentiated from influencing the forming of political will and public opinion in order to pursue one of the public-benefit purposes listed in the German Fiscal Code. According to established BFH case law, nonprofit status is not affected if one of the tax-privileged activities is “on a case-by-case basis necessarily combined with a political objective” or a critical public discussion and information. (Id. at 20, 21; see also Jenny Gesley, Germany: Nonprofits May Engage in Non-Partisan Politics Without Losing Tax-Exempt Status, GLOBAL LEGAL MONITOR (Sept. 8, 2017).) The Court added that within the framework of allowed political activity to further the public-benefit goals codified in the Fiscal Code, the organization must remain nonpartisan. (BFH at 22.)

The Court held that the activities of ATTAC did not constitute the “advancement of adult education” as the lower court had ruled. (Id. at 31.) Adult education in connection with the general advancement of democratic government includes political education. However, according to the BFH, furthering adult education must be limited to education policy issues and requires discussing political questions “with an open mind.” Political education is not covered if the forming of political will and public opinion is used to advance an organization’s own agenda in the form of a “general political mandate.” (Id. at 23, 24, 28; FISCAL CODE § 52, para. 2, nos. 7, 24.) It concluded that the lower court had erred when it ruled that furthering political education entitles a nonprofit organization to call for concrete actions or to make demands regarding current political matters. (BFH at 31.)

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