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New Normative Instruction consolidates and alters general rules and guidelines of the Public Registry of Companies

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On July 1, 2020, Normative Instruction No. 81 of the National Department of Business Registration and Integration (Departamento Nacional de Registro Empresarial e Integração – DREI) came into force. The Normative Instruction updates and consolidates the rules applicable to the Public Registry of Companies.

Normative Instruction No. 81 revoked 56 other rules, among which 44 were Normative Instructions and 12 were Circular Letters, all now consolidated in this new legal text.

The initiative follows the guidelines of the new Economic Freedom Law (Law No. 13.874/19), in compliance with the provisions of Decree No. 10.139/19, which provides for the review and consolidation of all normative acts with a hierarchy below the decree level, seeking to update, simplify and reduce the number of normative acts.

Normative Instruction No. 81 seeks to bring together all the norms related to the process of opening, modifying and closing Companies, Cooperatives, Individual Entrepreneurs and Individual Limited Liability Companies (EIRELI). As a result, there is greater procedural and understanding standardization within the scope of the Commercial Boards in the different states, reducing state discrepancies in the business registration process.

We highlight below the main changes and consolidations promoted by IN 81:

1. Exemption from notarization and document authentication: corporate acts and powers of attorney, submitted for registration in physical copies, and its attachments are exempt from notarization and the need for a certified copy. Thus, the Commercial Registry server must authenticate the document itself, comparing the signature with that presented in the signatory’s identity document.

Authentication of copies may be carried out by the Commercial Registry’s server themselves, by the lawyer or accountant, upon declaration of authenticity.

2. Digital registration: the protocol in the Commercial Registry system that uses electronic signature does not require the presentation of a power of attorney.

Thus, for digital protocol, it is enough to submit a simple copy of the document, physically signed by the partner or administrator, with subsequent digital certification by the lawyer or accountant. In this case, no power of attorney is required, and the lawyer/accountant must only present a declaration of authenticity.

3. Expansion of the automatic registration: the acts of constitution, alteration and extinction of legal entities must be approved automatically when the entrepreneurs choose to adopt a standard instrument, along the lines established by DREI.

4. Payment of share capital: the following understandings were consolidated:

  • Payment of EIRELI’s capital: the obligation to pay immediately (at the time of incorporation) of EIRELI’s “social” capital is limited to the amount equivalent to 100 times the minimum wage in force in the country. Thus, the amounts that exceed the referred legal minimum may be paid in a future date.
  • Extension of deadline for payment: the payment of the capital of companies may take place immediately or at a future date (with the exception of the minimum capital required from EIRELIs). If the payment of the share capital is not made on the date set in the articles of association, the company may extend the date initially envisaged, or promote the reduction of the share capital.

5. Preferred shares with restricted votes: allows the creation of shares of different classes in limited companies, in the proportions and conditions defined in the articles of association, which grant their holders different patrimonial and political rights, even allowing the suppression or limitation of the right to vote by the titular member, subject to the limits established by Law No. 6,404/1976, which is applied on a supplementary basis.

6. Transformation/conversion of association and cooperative: new interpretation of DREI, based on the application of Superior Court of Justice jurisprudence and article 2.033 of the Civil Code, thus allowing the conversion and transformation, respectively, of associations and cooperatives in a business society.

7. Liquidator: Normative Instruction No. 81 consolidated the understanding that the position of liquidator can be held by a legal entity.

The ruling came into partial effect on July 1, 2020, with an exception regarding the automatic filing of acts of alteration and extinction of individual entrepreneurs, EIRELI and limited liability company and the constitution of a cooperative. The rules relating to these acts will come into force on October 8, 2020.