Legal Insights From Brazil to Start Your Week

The National Monetary Council (CMN) promoted specific adjustments to regulation that substantially impacted the offering of Agribusiness Receivables Certificate (CRA) and Real Estate Receivables Certificate (CRI) by agribusiness and real estate related companies, respectively.

See below the changes that Resolution No. 5,121, of March 1st, made to Resolution No. 5,118:

1. The Definition of “Debt Instruments” Does Not Include Commercial Contracts: The wording of Resolution 5.118 generated doubt among market agents whether or not it included contracts of a commercial nature, which are common in securitization transactions.

The CMN clarifies, through Resolution 5.121, that contracts of a commercial nature, such as rental contracts, purchase and sale contracts and usufruct contracts related to real estate, can be used as underlying asset for CRA and CRI offerings.

2. Possibility of Issuing CCI as Backing for CRIs: The revised regulation now allows debt instruments whose issuers are not characterized as debtors, co-debtors or guarantors to also be backed by CRA and CRI, such as the Real Estate Credit Certificate (CCI), which is a title issued by a real estate lender.

3. Prohibition of Backing with Debt Instruments of Financial Institutions: Another amendment to Resolution 5.118 sought to restrict the application of the new prohibitions to financial institutions or their respective subsidiaries.

4. Possibility of CRI Offerings for Reimbursement of Expenses Remain Prohibited: One of the points that market agents expected that the CMN would review was regarding offering of CRI for reimbursement of expenses.

Resolution 5.121 did not change the restriction imposed by Resolution 5.118 that CRAs and CRIs cannot contain as collateral credit rights “arising from financial operations whose resources are used to reimburse expenses”.

Although the changes introduced are welcome, the CMN should have also allowed the possibility of CRI for reimbursement of expenses, which is a typical real estate transaction and brings liquidity to the sector.

According to the Brazilian National Council of Justice (CNJ), registration is mandatory for all companies that are registered in Brazil (i.e., that have a taxpayer number, so-called “CNPJ”), except if they are classified as “micro” or “small” company. Such registration must be completed by May 30th, 2024.

After such deadline, (i) inclusion will be automatic, based on Brazilian Federal Revenue data, (ii) all procedural communications sent via Electronic Judicial Domicile will be deemed acknowledged and valid, (iii) the company will be exposed to penalties and procedural sanctions for non-compliance with such judicial communications (including default of appearance and possible convictions) and (iv) if the company does not use the portal and/or does not respond to procedural communications, a fine will be imposed.

The Electronic Judicial Domicile is a platform that concentrates all communications and subpoenas, issued by Brazilian courts and directed to companies, on a single system. It is worth mentioning that the system encompasses all Brazilian courts, regardless of the jurisdiction (for example, civil, federal, labor, tax courts and even superior courts).

The purpose of the system is to facilitate procedural communications, standardize access to such subpoenas and expand the digitalization of the Judiciary. As its use will be mandatory, companies must designate an employee/third party to periodically access the portal and train them to operate the platform – so that they perform the filtering and forward such communication to an external lawyer hired by the company.

According to the rules of the Electronic Judicial Domicile system, all summonses will be deemed read and valid after 3 business days, and all notifications after 10 business days, starting the procedural deadlines. Also, in case of failure to confirm receipt of the summons, the company will be subject to a fine of up to 5% of the value of the claim.

It is important to highlight those communications directed to retained lawyers and/or lawyers already with powers in legal proceedings will not be affected by the new system. The Electronic Judicial Domicile only encompasses communications that are targeted by the Courts directly to companies, as is the case with summonses (i.e., for new claims, in which there is no appointed lawyer yet) or personal subpoenas (in which the communication is made to the party, and not via a lawyer).

The 4th Panel of the Brazilian Superior Labor Court (TST) recognized that employees of a fintech of payment methods cannot be equated with bank employees, even if only for the purposes of labor and employment rights.

The actions that have reached the TST seek to classify payment method companies in the financial category, in which case the employment contract becomes governed by the collective bargain agreement of bank employees, generally more advantageous, such as, for example, working hours six hours a day (30 hours a week).

However, the activities of payment method companies are incompatible with those of financial institutions in the eyes of the Brazilian Central Bank, due to an express legal prohibition. The activity of means of payment is governed by Law No. 12,865, of 2013, which provides for payment arrangements and payment institutions that are part of the Brazilian Payment System (SPB – Brazilian Acronym), which expressly prohibits the performance of these companies in activities carried out by institutions financial institutions regulated by the Brazilian Central Bank.

In this case, the Brazilian Regional Labor Court of Rio de Janeiro had understood that the evidence demonstrated that the company acted as a financial company and not just as a payment method company, because in addition to managing credit cards, the company allegedly performed services of “ credit, financing or investments”.

The fintech appealed the decision to the Superior Labor Court (TST – Brazilian Acronym), and, for the Reporting Judge of the case at the TST, Judge Maria Cristina Peduzzi, as credit card operators act only as intermediaries between the end user, commercial establishments and financial institutions, which are regulated by the Central Bank of Brazil, payment method companies do not, as a rule, qualify as financial institutions.

The Reporting Judger highlighted that “the classification of the activities carried out by the employee as belonging to a (non-financial) payment institution is sufficient to remove the status of a financial institution”, since intermediation and services do not mean that they actually performed the services of financial institutions.

We highlight that, fortunately, this decision is in line with the majority understanding of the TST on the subject, which, since 2020, has been taking a position in the sense that employees of fintechs, and other means of payment, act in fact as banking correspondents and cannot be classified as banking or financial institutions, therefore recognizing the regularity of the companies before the Brazilian Central Bank and the absence of labor rights for bank employees to the employees of these companies.