By: André Jerusalem
On March 22, 2022, CVM Resolution 70 was issued, which established the scale for reducing the minimum percentage of shareholding required to exercise rights provided for in Law No. 6,404/76 (Corporations Law), repealing CVM Instructions No. 165, of December 11, 1991, No. 282, of June 26, 1998, No. 324, of January 19, 2000, and No. 627, of June 22, 2020.
Article 1 of the new Resolution brought to light changes in the following articles of Law 6,404/76 in relation to the reduction of minimum shareholding percentages:
- 101: full display of the company's books;
- 123, paragraph “c”: calling of a general meeting;
- 141: request for adoption of the multiple voting process;
- 157, § 1: request for information from an administrator;
- 159, § 4: filing of derivative action against administrators;
- 161, § 2: request for the installation of a fiscal council when its operation is not permanent;
- 163, § 6: request for information from the fiscal council on matters within its jurisdiction; and
- 246, § 1, item “a”: filing of a liability action against the controlling company without providing security.
It is worth remembering that, through CVM Instruction 627, which is referenced in art. 291 of Law 6,404/76, there is a provision for a scale that reduces the minimum percentage of shareholding, according to the share capital of publicly-held companies, so that minority shareholders exercise their right to request the full disclosure of the company's books in court, call a general meeting, request data on securities from the company's controllers, file a civil liability action against the director in case of administrative irresponsibility, file a damages action in case of violations committed by shareholders and request information on matters within the jurisdiction of the Fiscal Council. We can see the following table to facilitate the reasoning:
| Share Capital Range (R$) | Minimum Percentage (%) |
| 0 to 100,000,000 | 5 |
| 100,000,001 to 1,000,000,000 | 4 |
| 1,000,000,001 to 5,000,000,000 | 3 |
| 5,000,000,001 to 10,000,000,000 | 2 |
| above 10,000,000,000 | 1 |
In addition to CMV 627 determining that failure to comply with the instruction will constitute a serious infraction, the following instructions were revoked:
I – CVM Instruction No. 165, of December 11, 1991;
II – CVM Instruction No. 282, of June 26, 1998;
III – CVM Instruction No. 324, of January 19, 2000; and
IV – CVM Instruction No. 627, of June 22, 2020.