JUCESP determined, by means of Ruling No. 2 published on March 25, 2015, that companies considered to be "large-sized" (…) must publish their Annual Balance Sheet and Financial Statements for the immediately preceding fiscal year in a newspaper which is widely circulated in the location where the company has its head office, as well as in the Official Gazette.
A "large-sized" company (pursuant to Law No. 11,638 of December 28, 2007) is considered to be a company which itself, or jointly with other companies under common control, had total assets exceeding R$ 240 million or annual gross revenues exceeding R$ 300 million in the immediately preceding fiscal year.
The above Ruling also established that the minutes of annual meetings of shareholders or quotaholders ("Minutes of Annual Meeting") of a large-sized company at which its financial statements were approved would only be accepted for registration by JUCESP upon presenting evidence that the financial statements had been previously published as indicated above.
In accordance with the Ruling, such publication is not required where the company presents a declaration, either as a separate document or included in the Minutes of Annual Meeting, signed by an officer of the company and a duly qualified accountant, which states (under penalty of law) that the relevant company is not large-sized.
Accordingly, JUCESP will now require publication of the financial statements of large-sized companies even if they are incorporated as limited liability companies (sociedades limitadas).
This determination arises from a judicial decision which ruled that the same publication requirements applicable to corporations (sociedades por ações) shall also apply to large-sized limited liability companies.
Based on this Ruling, JUCESP may refuse to register the Minutes of Annual Meeting of large-sized companies that have not published their financial statements as required by the Ruling. A number of potential consequences may result from the inability to register the Minutes of Annual Meeting, including the company being prevented from obtaining bank financing or participating in public bids.
In our opinion, the legality of such publication requirement and the refusal of JUCESP to register the Minutes of Annual Meeting due to the lack of prior publication, is questionable and may possibly be challenged in court.