Certificado de Recebíveis do Agronegócio (CRA): por uma (re)construção do conceito de direitos creditórios do agronegócio

Abstract

The Agribusiness Receivables Certificate (CRA), a credit instrument instituted by Federal Law n. 11,076 / 2004, must be backed by agribusiness credit rights. The subject matter of this dissertation is to investigate the meaning and the extent of the expression “agribusiness credit rights” for the purpose of backing up the issuance of CRA under the organized securities market, thus focusing on the interpretation of Art. 23, §1º, of Federal Law n. 11,076 / 2004. The terms in which the above mentioned expression is found were analyzed and interpreted, more specifically “agribusiness”, “business”, “rural producer”, “agricultural producer cooperative”, "financing", "loan", "production", "commercialization", "processing", "industrialization", "agricultural products and inputs", "machinery", "implements" and "agricultural activity", aiming to understand potential inconsistencies of its treatment and its conceptual evolution with the Brazilian Securities and Exchange Commission (CVM), which is responsible for approving public offerings of CRAs. Starting from this highly undetermined legal provision and by using a deductive method and a documentary and bibliographic research, it was possible to limit the reach and the meaning of the expression “agribusiness credit rights”, as well as to conclude that the CVM, through its Instruction n. 600 / 2018, might have exceeded the boundaries of Federal Law n. 11,076 / 2004 when it allowed CRAs to be backed up by credit rights not originated in agribusiness, but only destined to further investments in the agribusiness sector. Despite this finding, it could be said that such interpretation from CVM may be considered as a well-received wrongfulness, taking into account its potential to provide a greater amount of resources to the agribusiness sector and, therefore, fostering this market, which is exactly the main purpose of Federal Law n. 11,076 / 2004. Moreover, it is also possible to sustain that the CVM, on the other hand, would be curtailing the use of certain back-ups when it is indirectly originated from agribusiness, although Federal Law 11.076 / 04 does not expressly allow this type of limitation and, on the contrary, would even accept it. Based on these reasons and by way of lege ferenda, a new wording is proposed to Art. 23, §1º, of Federal Law n. 11.076 / 2004, seeking to legally better determine the understanding of “agribusiness credit rights” and, especially, admitting CRAs to be backed-up not only by credit rights originated from agribusiness. The new proposed wording would also comprise the credit rights originating indirectly from agribusiness, which could also back up CRAs whenever there was a causal link between it and the agricultural business that gave rise to it. Likewise, it also embraces credit rights targeted to investments in agribusiness, as the CVM has already been doing. The final conclusion is that the new proposed wording by way of lege ferenda for the legal provision under examination would be more advantageous to the development of a regular CRA market, which would consequently contribute to the strengthening of the social values of work and the freewill, given that a greater range of persons could benefit from this type of investment, such as securitization companies and all other agents that participate in the process of setting up a public offering of CRA, the investors and, above all, the rural producer.