The Provisional Measure no. 881, already known as the "Economic Freedom MP", was signed in the last 30.04. It institutes the "Declaration of Rights of Economic Freedom", with the objective of protecting free initiative and the free exercise of economic activities, reducing the role of the State in certain cases.
In general terms, and subject to certain limits and exceptions, the main innovations brought by the MP are as follows:
1 - Freedom from bureaucracy: low risk activities, regardless of the size of the company, will no longer depend on licenses, such as operating, sanitary and environmental permits;
2 - Freedom to work and produce: public authorities and trade unions may only restrict the opening hours of commerce, services and industry in specific cases, such as compliance with labour, environmental and neighbourhood norms;
3 - Freedom to set prices, except in case of emergency or calamity, observing the rules for the defense of competition and consumer rights;
4 - Freedom from arbitrariness: establishment of binding and isonomic effect of public acts;
5 - Presumption of good faith and prevalence of the autonomy of the will;
6 - Freedom to modernize: outdated infralegal norms may be ruled out in certain cases of innovative products or services;
7 - Freedom to innovate: company may test, develop or implement product or service without the need for a specific license if the target audience is duly informed, except in cases of risk to national security, public safety or sanitary or public health;
8 - Freedom to covenant: the will of the parties in business contracts shall be respected and shall prevail over the rules of business law;
9 - Right of reply: every request for license or permit will have a maximum period for approval, after which the silence of the public authority will characterize tacit approval. This right will not apply to tax issues, risk situations, hypotheses that result in financial commitment from the public administration and if there is express objection in a treaty in force in the country;
10 - Freedom to scan: every document may be scanned and the digital version will have the same value as the original document, which may be discarded;
11 - Freedom to grow: CVM may simplify the access of small and medium-sized companies to the capital market;
12 - Freedom to undertake: Judiciary may not disregard the legal entity without proof of abuse or fraud;
13 - Contractual freedom: the will of the parties shall prevail, and the law shall be applied in a subsidiary manner;
14 - Freedom from abuse: The State may not create obstacles and privileges that generate undue economic distortions;
15 - Freedom of economic regulation: new federal rules will be preceded by regulatory impact analysis;
16 - Freedom of corporate regularization: one-person limited liability companies will be allowed;
17 - Freedom of contractual risks: the will of the parties regarding the agreed allocation of risks will be observed.
In order to ensure free enterprise, the MP lists practices that must be avoided by the public administration. They are:
I - create market reserve, favoring economic or professional groups;
II - prevent the entry of new domestic or foreign competitors;
III - create privilege for a certain economic segment;
IV - require unnecessary technical specification;
V - prevent or delay innovation and the adoption of new technologies, processes or business models, with the exception of risk situations;
VI - increase transaction costs without demonstrating benefits;
VII - create artificial or compulsory demand for a product, service or activity, including notaries, registries or cadastres;
VIII - limit the free formation of business companies or economic activities; and
IX - restrict advertising and publicity of an economic sector, subject to legal prohibitions.
Other impacts of the MP will be commented on in the following posts.
The professionals of Barcellos Tucunduva Advogados are at your disposal for any advice or clarification on this matter.
