AP INTERNATIONAL NEWSLETTER Year 3 | No. 6 | April 2012
CORPORATE | Notes Individual Limited Liability Company (Empresa Individual de Responsabilidade Limitada - EIRELI) We wish to call your attention to the effectiveness, as from this January, of Law n. 12,441 of July 11, 2011, that amends the Brazilian Civil Code in order to allow the incorporation of the so-called Empresa Individual de Responsabilidade Limitada – EIRELI (free translation into Individual Limited Liability Company). The EIRELI shall be composed of only one person, quotaholder of the totality of the company's capital, duly paid-in. This capital shall not be lower than 100 (one hundred) times the highest minimum wage in the country. Currently, the minimum wage corresponds to the value of R$ 622.00, equivalent to approximately US$ 360.00. In this new legal form, the quotaholder is responsible only for paying-up the subscribed capital. Please note that the Brazilian Commercial Registry Department has approved, trough the Normative Ruling n. 117 of November 22, 2011, the Manual of Registration Acts of the EIRELI, which regulates and standardizes the procedures related to the registration of the EIRELI. According to the Manual, legal entities can not be quotaholders of an EIRELI. However, this issue is still pending of further clarification, since Law 12,441 does not provide
information regarding this matter. Also, the individual that whishes to incorporate an EIRELI is allowed to participate in only one company of this form. Although the Manual of Registration Acts of the EIRELI states that only individuals are entitle to hold an EIRELI, the Court of the State of Rio de Janeiro has granted an injunction in favor of the conversion of a limited liability company into an EIRELI held by a legal entity. According to such decision, the Normative Instruction No. 117 brought a restriction that is not provided in the aw when it determined the impossibility of a legal entity to hold and EIRELI, violating the principle that 'when the law does not distinguish, the interpreter shall not distinguish'. Another argument used to justify the decision is that the DNRC should not insert any prohibition into a law which is hierarchically superior. The decision also stated that the bill of law that created the EIRELI had a clear indication that the EIRELI could only be held by an individual, and the final text of the law suppressed the term 'individual'. Such suppression should be considered as if the legislator intended to allow both individuals or legal entities to hold an EIRELI. The subject is still controversial, being necessary to wait for new decisions to consolidate the understanding.
AP INTERNATIONAL NEWSLETTER
Year 3 | No. 6 | April 2012
Corporate | Individual Limited Liability Company (Empresa Individual de Responsabilidade Limitada - EIRELI)
As determined by Law 12,441, the rules provided to the limited liability companies shall apply to the EIRELI whenever appropriate. In addition, the new Article 980-A, inserted in the Civil Code, provides that: (i) The company's name shall be constituted by the expression “EIRELI” after the firm or corporate name; (ii) The EIRELI may also result from the merger of the quotas of another corporate form into one quotaholder, regardless of the reasons of such merger.
Authors José Paulo Bueno jbueno@araujopolicastro.com.br | VCard
Carolina Gora cjakobowicz@araujopolicastro.com.br | VCard
Maria Carolina de Bellis Doria mdoria@araujopolicastro.com.br | Vcard
Sâmia Shibli Franco sfranco@araujopolicastro.com.br | VCard
In the Manual of Registration Acts there are no restrictions regarding the type of activity to be performed, except the corporate purpose that includes the practice of law. Also according to the Manual, the management shall be exercised by one or more individuals, designated by the incorporation act, that can be its quotaholder or not. The EIRELI may result from the transformation of a limited liability company that, from a certain moment, has only one quotaholder, provided it is not disqualified by constitutional provision or special law.
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