On April 30, 2019, President Jair Bolsonaro signed Provisional Measure (MP) no. 881, also called MP for economic freedom, which brings some new features with the aim of simplifying procedures, encouraging entrepreneurship, generating more jobs and boosting the economy.
The changes favor entrepreneurs starting a business, a situation in which mainly startups, as they enable the exercise of economic activity without the need for permits and licenses to test products and services, in addition to encouraging innovation in sectors that have standards that are often outdated and in disagreement with the country's current social and technological scenario .
It is worth mentioning that the MP for economic freedom focuses on businesses in which economic activity is low risk, a criterion defined by the Federal Executive Branch, or, in its absence, by the Committee for Management of the National Network for the Simplification of Registration and Companies and Business Legislation (CGSIM, linked to the Ministry of Economy).
And what changes in practice? Confirm some of the changes:
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How was? |
How was it after the MP? |
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All economic activity, regardless of risk, required registration, such as a license and/or permit. |
Release of prior authorization if: Meet the “low risk” criteria – set by the State; Activity carried out on own or third party property; Attention: does not exempt from registration with a registration, tax or social security body |
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Restrictions on day of the week and time to carry out economic activity (e.g. work on Sundays) |
Freedom of time and day of the week is guaranteed, as long as the following are observed: Neighborhood law; Combating noise pollution and disturbing the peace; Labor rights; Respect for private rights (e.g. condominiums) |
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The State could interfere in innovative business models that could benefit consumers. |
Freedom to define, except in emergency and public calamity situations. |
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Possibility of interpreting the standard differently in identical situations. |
Equality is guaranteed, if entrepreneurs are in the same circumstances, what is true for one is true for all. |
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When in doubt, the interpretation could restrict the autonomy and agreement between the parties. (e.g. limitation of contractual clauses) |
Its premise will be to preserve the autonomy of the will of the parties. |
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Outdated standards impacted the growth of new businesses and technologies. |
Forecast of regulations that will regulate the situation and make it possible to develop, execute, operate or commercialize new types of products |
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Testing and development new products faced state bureaucracy for release, generating an impact mainly on innovation. |
Free from innovation bureaucracy, if: Offer to private groups (older and more capable people); Development on private or third-party property; There is free consent; Respecting current legislation Exception: technology and substances for restricted use. |
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Part of the contract could use legal norms to benefit from the interpretation of what was agreed. |
Free agreement between the parties is guaranteed, which will have the force of law between them. |
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Individuals should file physical receipts for a specified period of time for legal purposes |
It is worth archiving documents and receipts by digital means. |
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Minimum of 2 partners |
It can be constituted by 1 or more partners. |
The business is classified as low risk. And now?
Another interesting novelty is that if the business meets the requirements brought by the MP, the entrepreneur, when filing the request for release of economic activity, will receive information about the analysis period, and if this period has elapsed there is no response from the public entity, approval will occur. tacit release, which guarantees greater agility for the entrepreneur to develop his business.
Tacit approval will only not be applicable when the release is linked to a tax issue, there is a justifiable risk by the public administration body or entity, when it involves a financial commitment from the State, or when there is an objection expressed in a treaty in force in Brazil.
Is the economic freedom MP already valid?
Yes, the Provisional Measure was published in the Official Gazette of the Union on 30/04/2019, the date on which the changes came into force.
However, it is important to clarify that the changes are linked to a Provisional Measure, a unilateral act by the President of the Republic, used in cases of urgency and relevance, with the force of law, but which needs to be assessed by the National Congress.
If the MP is not approved within 45 days from its publication, it will block the voting agenda of the House in which it is being processed (Senate or Chamber), until it is considered and voted on.
The MP has a term of 60 days, and can be extended for another 60 days, however, if it is not assessed by the National Congress and turned into law within this period, it may lose its effectiveness, in this case, a legislative decree will be issued that will regulate the legal effects. caused during the term of the MP.
By Bruno Nassar, Kael Moro and Vanessa Naunapper
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© 2022 Vanzin & Penteado Advogados Associados.
