As of April 26, 2022 the Federal Senate approved Bill of Law (PL) No. 3.825/2019, which aims to regulate transactions involving cryptocurrencies in Brazil. Drafted by Senator Flávio Arns and also submitted by Senator Irajá Abreu, the PL, which is to be submitted to the Chamber of Deputies and president’s approval, represents the beginning of a new era for the country with regard to the so-called virtual currencies, market expected to grow this year[1].
Consonant with the justification submitted by the cabinet of Senator Flávio Arns, the project aims to, specifically, regulate the Exchanges, legal persons who offer services related to transactions made with crypt assets on electronic platform, including brokerage, negotiation or custody[2]. Currently, there are 35 Exchanges in Brazil, companies that, for being marginal to the regular financial system, easily benefit from financial transactions, anonymization of buyers and sellers and non-submission to jurisdiction of countries and central banks. In accordance with the authority, such benefits allow pernicious practices, such as money laundering and financing of drug trafficking.
It should be noted that PL No. 3.825/2019 was submitted along with Bill of Law No. 3.949/2019, of Senator Styvenson Valentim, and No. 4.207/2020, of Senator Soraya Thronicke, being annexed PL No. 2.303/2015 of Deputy Aureo Ribeiro. Hence, it is possible to infer the scope and efforts targeted at normative framework, where seven key points are relevant for its understanding.
The PL promptly ends an extensive nationwide discussion regarding the true meaning of crypt asset. Throughout the years it was possible to classify cryptocurrencies both as financial asset, according to the Federal Revenue Office positioning[3], and as “non-financial asset,” pursuant to Official Notice No. 1/2018/CVM/SIN of the Securities Commission. Additionally, the Superior Court of Justice understands that financial transactions involving cryptocurrency are a legal transmission of transfer of a movable asset[4]. Not pleasing all and sundry, the Bill of Law defines clearly that crypt asset is[5]:
The digital representation of value named in its own unit of account, whose price may be expressed in local or foreign sovereign currency, transferred electronically by using cryptography and/or distributed ledger technology, which can be used as a form of investment, instrument for transfer of amounts or access to assets or services, and that constitutes no legal tender;
However, it is observed greater convergence with positions previously expressed by the Central Bank in consonance with Law No. 12.865/2013, in such way that cryptocurrencies are, pacifically, virtual currencies. The focus on the Central Bank arises from the change of authority on regulation, supervision and inspection of the crypt asset market, which is transferred from CVM (Securities Commission) to BACEN. With the PL, the CVM would only oversee when crypt asset transactions had security aspects, through its public offering that generates right of shareholding, partnership or remuneration, including those from services whose earnings arise from efforts of entrepreneurs or third parties[6].
In compliance with parameters established by the Central Bank of Brazil, and by observing constitutional principles[7] of the national economic order, the PL sets out guidelines that shall head the crypt asset market, namely:
I – consistency and efficiency of transactions made on electronic platforms; II – encourage competitiveness between crypt asset operators; II – reliability and quality of services, as well as excellence in response to the needs of customers; IV – information security, in special, protection of assets and personal data; V – transparency and access to clear and full information on the conditions of services; VI – adoption of good governance and risk management practices; and VII – encourage innovation and diversity of technologies.
It is notorious the focus given on both consumer rights and need of transparency and access to information[8], pillars of the contemporary public policy, and that can be seen in other decrees, as with the Access to Information Act (Law No. 12.527/2011). In this same sense, the crypt asset market is then subject to money laundering prevention and fight measures – governed by Law No. 9.613/1998 – and other illicit acts, most noticeably the inclusion of crime of “Mismanagement of crypt asset Exchange” to article 4 of Law No. 7.492/1986, which states the crimes against the national financial system.
Additionally, due to lack of control in the opening of Exchanges, the Bill of Law proposes a strict authorization process for the operation of such legal persons, and requests for opening shall be accompanied by: well-founded justification, documents that evidence the members of the economic group, as well as shareowners, in addition to proof of origin and financial transaction of assets used in the undertaking and certificate of good standing[9]. It is observed that the need of approval with BACEN allows the crypto system to convey greater credibility and security to the national financial system and consumers, who are also backed by art. 8 of the abovementioned decree, with provisions as that required for separation of assets of the Exchange and consumers.
Focused on filling a dangerous regulatory gap of the national legal system, Bill of Law No. 3.825/2019 innovates by establishing conditions and rules for the cryptocurrency market. At global level, virtual currency transactions lack regulation and oversight by governments, giving rise to a space that is dangerous and marginal to legislation. If duly approved in all steps of the regulatory process, the PL will set important precedents and new discussions, as with the ill-famed taxation of cryptocurrencies.
[1] Mercado de criptomoedas alcança novo status em 2021 e ganha outros desafios para 2022. Laelya Longo, Valor Investe, O Globo, São Paulo. 2022. Available on: https://valorinveste.globo.com/mercados/cripto/noticia/2022/01/17/mercado-de-criptomoedas-alcanca-novo-status-em-2021-e-ganha-outros-desafios-para-2022.ghtml
[2] Art. 2, item III, PL 3.825/2019
[3] ANDRADE, Mariana Dionísio de. Tratamento jurídico das criptomoedas: a dinâmica dos bitcoins e o crime de lavagem de dinheiro. Revista Brasileira de Políticas Públicas, Brasília, v. 7, n. 3, p. 45-59, dez. 2017. Available on: https://www.publicacoesacadeicas.uniceub.br/RBPP/article/view/4897/3645.
[4] SPECIAL APPEAL No. 1.696.214 – SP. REPORTING MINISTER: MINISTRO MARCO AURÉLIO BELLIZZE. DTE HEARING: 10/09/2018
[5] Art. 2, item II, Bill of Law No. 3.825/2019.
[6] Art. 7, Bill of Law No. 3.825/2019, in compliance with Law No. 6.385/1976.
[7] Art. 170, main section, Constitution of the Federative Republic of Brazil of 1988
[8] Art. 10, Bill of Law No. 3.825/2019.
[9] Art. 5, items I to V, Bill of Law No. 3.825/2019.
Available at: https://www.conjur.com.br/2022-mai-25/flavia-benites-tardia-regulacao-moedas-eletronicas
Autor: Flávia Sant'Anna Benites • email: flavia@ernestoborges.com.br • Tel.: +55 67 99984 1406
