The Federal Government sent to the National Congress, on April 30, 2019, the Provisional Measure of Economic Freedom No. 881/2019 (“MP“), which aims to stimulate entrepreneurship in the country. The text establishes norms for protecting free enterprise and the free exercise of economic activity, as well as regulating the State’s role as a normative and regulatory agent.
The MP was based on the so-called essential rights of natural and legal persons, of freedom in the exercise of economic activities, presumption of good faith and minimal State intervention in the exercise of economic activities, having altered provisions in the country’s main commercial and civil laws, among them Law no. 10,406/2002 (“Civil Code“), Law 6,404/1976 (“Corporation Law”), Law 11,101/2005 (“Bankruptcy and Judicial Reorganization Law”) and Law 6,015/1973 (“Public Records Law“).
The new wording of the MP opted to change Law 11,598/2007, which created REDESIM, dispensing with authorizations, licenses, and permits for activities defined as low risk, imposing as a requirement the mere submission of a declaration to that effect. Therefore, the MP establishes greater freedom in the exercise of low-risk economic activities, in terms of hours and days, seeking to generate jobs.
The Ministry of Economy states that the MP’s objective is to guarantee free enterprise and the ample exercise of economic activity, favoring, especially, small entrepreneurs.
Also noteworthy is the express presumption of good faith of the private party in its negotiations, in the terms of Article 2 of the MP, according to which “The principles that guide the provisions of this MP are: (…). II – the presumption of good faith on the part of the private individual“It is a right of every person, natural or legal, to be presumed to have good faith in the acts performed in the exercise of economic activity.
Also known as the “MP for Startups“, the norm also provides bureaucratic immunity for innovation, creating a favorable environment for the development of new products and services, including the creation of startups, even in a scenario of uncertainty. Tests may be conducted, free of charge or not, for private and restricted groups, ruling out the effects of infralegal norms that are outdated or prevent the development of these products, as long as they do not put public health or safety at risk.
In the civil and corporate scope, in its article 7, with the alteration of article 50 of the Civil Code, the MP brought perceptible changes to the commercial aspect, through which clear requirements were inserted regarding the disregard of the legal entity.
Under the terms of the proposed wording, the disregard would only have the power to affect the partners who have directly or indirectly benefited from the abuse of the legal entity, protecting those who are not involved and/or who have not benefited. It also establishes minimum parameters, and their respective definitions, for the application of this institute:
(a)
Deviation of purpose
misuse of the legal entity with the intention of damaging creditors and practicing illicit acts.
(b) Confusion of assets: indistinctness between the assets of the partner and of the legal entity, defined by the repeated fulfillment, by the legal entity, of the partner’s obligations, and vice-versa, and the transfer of assets and liabilities, not insignificant, between such parties.
(c)
Reverse disregard
possibility of applying the inverse disregard of legal entity.
(d)
Economic group
: limitation on the extension of the application of the disregard of legal personality to companies belonging to the same economic group.
(e) Extension of the social function : limit to the application of the disregard of legal entity in case of mere extension of the social purpose of the legal entity.
We make a brief warning regarding the parameterization of the institute of disregard of legal entity foreseen in the MP, since if sometimes aims to protect and encourage entrepreneurship, the verification of malicious act and repetition of acts to characterize the misuse of purpose and confusion of assets, respectively, hinders the effective application of the disregard of legal entity.
From the corporate point of view, the most relevant changes were made in Book II of the Special Part of the Civil Code, with the insertion of article 980-A and the sole paragraph to article 1.052, and the creation of a Chapter X of Title III of Book III of the Civil Code on investment funds.
Article 980-A, which regulates the Limited Liability Sole Proprietorship (EIRELI), expressly clarifies that the assets of the partner and of the EIRELI are autonomous and independent.
In turn, the insertion of the sole paragraph to article 1.052 of the Civil Code results in the permissibility of the anomalous figure of the single-member limited liability company, which, until now, except for the specific figure of the EIRELI, did not exist. The main criticism of such an inclusion is that the innovation could empty the EIRELI.
Regarding investment funds, articles 1368-C, 1368-D, 1368-E were included in the Civil Code, a matter not previously dealt with by the Civil Code, because, according to the Law. 6.385/76, would be the competence of the Securities Commission (CVM).
The MP also amends the Brazilian Corporations Law, the main change being the permission given to the Securities and Exchange Commission of Brazil (CVM) to reduce requirements to allow small and medium-sized entrepreneurs to enter the capital markets. The idea is that Brazilian companies do not need to open their capital abroad where they find less bureaucracy.
In the contractual sphere, several changes were made to the Civil Code. Firstly, the MP inserted in the final part of the caput of article 421 of this legal provision, which enshrines the principle of the social function of the contract, the need to comply with the provisions of the so-called Declaration of the Rights of Economic Freedom. The addition seems to have tried to give prestige to the guiding principles of the referred MP, namely, the“protection of free enterprise and the free exercise of economic activities” (art. 1) and the minimal intervention of the State in economic activities.
It also amended certain provisions on adhesion contracts, specifically article 423 – which deals with the pro-bond interpretationby replacing the reference to clauses “ambiguous or contradictory“that appeared in its original wording by alluding to the clauses “that generate doubt as to its interpretation“; and the sole paragraph of article 423 – which provides that whoever drafts the clause that generates doubt cannot benefit from its lack of clarity, and such clause must be interpreted in favor of the counterparty.
Therefore, the MP aims to encourage entrepreneurship and the business environment in the country. However, in practice, we will still have to await complementary regulations and the passage of the MP through the National Congress.
Finally, we would like to point out that this notice contains only the main changes to the legal rules, and that there are other changes brought about by the MP.