Anneliese Moritz

Brazil Insider Part 3: "Exigência" or requirements of the commercial registry

A company (“Sociedade Limitada”) is incorporated and consists of a legal entity as soon as its articles of incorporation (“contrato social”) are registered with the Commercial Registry (“Junta Comercial”). Whenever the shareholders intend to amend any of the provisions of the articles of incorporation of the company or assign their shares, the articles of association must be amended by means of a private instrument of amendment to the articles of association (“alteração contratual”) or by a shareholder’s general meeting (“assembleia geral”).

The articles of incorporation, the amendment to the articles of association and the minutes of the shareholder’s meeting must be filed (“protocolo”) with the Commercial Registry. After filing with the Commercial Registry, the entity usually registers the act within 48 hours to one week, depending on the State and the office at which the document was filed.

The registration by the Commercial Registry might be refused and is subject to compliance with the requirements (“exigências”).

Unfortunately, not rarely such requirements are unjustified either because the grounds indicated are unfounded or because the defect pointed out does not exist.

The parties have a 30-days deadline to remedy the defects and re-file the document with the Commercial Registry. Upon compliance with the requirement or clarification of the issue directly with the Commercial Registry, the document should be registered.

Needless to say, the raising of requirements as well as the clarification of the issue delays the incorporation and the acquisition process of a company, as well as the process of amending the articles of association.

There used to be a list of possible requirements, which the agent of the Commercial Registry in charge of the analysis (“vogal”) used to check to see whether there were any requirements. However, this list was non exhaustive and the agent could ground his/her decision not to register the act on any and all kind of requirement not comprised in the list.

On August 3, 2018, a new list was adopted by means of a normative instruction (nº 48), issued by the Department of Company’s Registry and Integration (DREI), federal entity responsible for the assistance and supervision of the Commercial Registries. Contrary to the list that existed so far, this list is exhaustive and the agent cannot make any requirement which is not comprised in this list.

Hopefully, this change will make it possible to expedite the process of incorporation of a company, a companies’ acquisition and the amendments to the company’s articles of association.

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