10/30/2021
As recently noticed by our office, Law No. 14,195 (“Law No. 14,195/21”) and Complementary Law No. 182/2021 (“LC 182/21”) promoted several amendments to the corporate law. However, whether as a result of a specific provision in such regulations or as requested by the Trade Registries, certain approved matters still needed specific regulation in order to be effectively implemented. Some of these subjects are in process of regulation and/or guidance in accordance with Circular Letter SEI No. 3510/2021/ME, Ministry of Economy Ordinance No. 12.701 of 10/07/2021, and Public Consultation No. 2/2021, detailed below.
1 – Circular LetterSEI No. 3510/2021/ME
Article 41 of Law 14.195/21 establishes that all individual limited liability companies (EIRELIs) existing on the effective date of such law shall be automatically transformed into one-person limited liability companies (sociedade limitada unipessoal), in accordance with the terms to be established by the National Department of Business Registration and Integration (Departamento Nacional de Registro Empresarial e Integração – DREI).
On September 9, 2021, DREI issued the Circular Letter N. 3510/2021/ME with some preliminary guidelines for such process. Please note that DREI expressed its position, that, although EIRELI concept still remains mentioned in the Civil Code, due to a veto issued by the President of the Republic, the article 41 of Law 14.195/21 implicitly revoked the existence of EIRELI. Due to this position, DREI advised all the Trade Registries to suspend the register of acts of incorporation of new EIRELIs. However, until a new announcement by DREI is made, the execution and registration of the acts of amendments to articles of incorporation and transformation of EIRELI into other corporate types, and/or the extinction of companies of this type are still authorized.
2 – Ordinance of Ministry of Economy, No. 12,071, dated 10/07/2021
Article 294 of Law 6,404/1976 (“Corporate Law”) was amended by Article 16 of the Complementary Law 182/2021 in order to allow that closely-held companies earning annual gross revenue up to seventy-eight million reais (R$78,000,000.00) may replace the mandatory publications in newspapers provided by law by publications made electronically.
As a result of the inclusion of Article 294, paragraph 5 of the Corporate Law, the Ministry of Economy published on October 7, 2021, the Ordinance No. 12,071, in order to regulate such matter.
According to the referred Ordinance, closely-held companies meeting such requirement may carry out its publications in the Central Public System of Digital Bookkeeping Balance Sheet (Central de Balanços do Sistema Público de Escrituração Digital – SPED), instead of proceeding with publications in newspapers of wide circulation and /official gazettes of the states where these companies are located. Besides that, those companies may also publish such documents on their own websites by using a digital certificate.
3 – Public Consultation No. 2/2021
Due to all changes related to Law No. 14,195/2021, it was expected the issuance, of a new normative instruction by DREI in order to reflect the modification of the equivalent provisions contained in the Normative Instruction No. 81 (dated June 10, 2020), which establishes general rules and guidelines of Companies’ Public Registry, regulates provisions of Decree No. 1800 (January 30, 1996), and, as regards the Trade Registries, establishes rules and guidelines to be observed when submitting documents for registrations and related procedures.
On October 7, 2021, it was published in the Federal Official Gazette the Public Consultation Notice No. 2/2021, for receiving contributions to the improvement of the draft of the normative instruction proposed by DREI for adequacy of Normative Instruction 81 to the recent corporate changes.
The new normative instruction importance consists in the fact that certain Trade Registries have already informally expressed that they will only grant acts that embodies some of the innovations provided by Law 14,195, such as the possibility of non-residents in Brazil being elected as officers in Brazilian companies, conditioned to the constitution of a legal attorney, or even the possibility of corporations having a single officer (and not two, as previous required by law)m after the issuance of a new normative instruction by DREI and/or after the update of the corresponding systems.
In conclusion, it is worth noticing that there are still other pending amendments and regulatory elements, and, thus, the subject must be constantly followed up until the new understandings are consolidated.
Coauthors: Gabriel Grunberg Tesler and Amanda Brisolla Fernandes
