CNSP RESOLUTION No. 422, OF 11 NOVEMBER 2021* (versão em inglês/LegisMap)
Provides for the authorization from Susep to operate, to start operations in Brazil, to hold positions in statutory or contractual bodies, to pay-up capital, and portfolio transfers, and on the conditions of the corporate control structure of the entities it specifies.
The DIRECTOR OF TECHNICAL MANAGEMENT 2 OF THE SUPERINTENDENCY OF PRIVATE INSURANCE - SUSEP, in the use of the powers delegated by Susep Ordinance no. 7.875, of 22 October 2021, makes it public that the NATIONAL COUNCIL OF PRIVATE INSURANCE - CNSP, in a special session held on 4 November 2021, in view of the provisions of item II, of art. 32, of Decree-Law no. 73, of 21 November 1966, in art. 3, 5, 29, 38 and 74 of Complementary Law no. 109, of 29 May 2001, in paragraph 1, of art. 3, of Decree-Law no. 261, of 28 February 1967, and in art. 2, of Complementary Law no. 126, of 15 January 2007, and considering what is set forth in Susep File no. 15414.613640/2018-27,
RESOLVES:
CHAPTER I
INTRODUCTION
Section I
Object
Art. 1. This Resolution provides for:
I - the authorization for:
a) the operations of supervised companies and reinsurance brokers;
b) the start of operations in Brazil of foreign reinsurers;
c) the holding of positions in statutory or contractual bodies of supervised companies, reinsurance brokers, and admitted reinsurers representative offices;
d) the payment of capital of supervised companies; and
e) the transfer of portfolio of supervised companies;
II - the conditions of the corporate control structure.
Section II
Definitions
Art. 2. For the purposes of this Resolution, the following are considered:
I - supervised: insurance companies, savings bonds companies, open complementary pension entities and local reinsurers;
II - foreign reinsurers: admitted and eventual reinsurers;
III - reinsurance broker: the legal entity legally constituted and domiciled in Brazil, according to the legislation in effect, authorized to intermediate reinsurance and retrocession operations;
IV - qualified participation: direct or indirect participation, held by individuals or legal entities, equivalent to 15% (fifteen percent) or more of shares or quotas representing the total capital of the supervised companies, reinsurance brokers and foreign reinsurers;
V - control group: a person or group of persons linked by a voting agreement or under common control, who hold partner rights that confer on them the condition of controlling shareholder, as per art. 116 of Law 6.404, of 15 December 1976, in the case of a joint stock company, or who hold at least 75% (seventy-five percent) of the capital stock, in the case of a limited liability company;
VI - EAPC/SFL: non-profit open complementary pension entities;
VII - controlling members of EAPC/SFL: these are the members of the collegiate body mandatorily constituted with normative supervisory and control powers, especially those of establishing the operating policy, of appointing the board of directors, and of having final disposal of the EAPC/SFL's assets;
VIII - lack of competition: situation characterized by the existence of only one supplier in the national market of a certain coverage;
IX - insurance, savings bonds, and open complementary pension portfolio: the plan or the set of insurance, savings bonds, or open complementary pension plans in commercialization or with interrupted commercialization, as well as the corresponding technical provisions, funds, and guarantor assets, represented in Brazilian currency;
X - reinsurance portfolio: the totality of rights and obligations resulting from a set of reinsurance contracts, represented in Brazilian currency or in the modalities foreseen in the regulations;
XI - foreign reinsurer specializing in nuclear risks: foreign reinsurer, consortium or mutual association operating exclusively in nuclear risks;
XII - registry entities: entities duly validated and accredited by Susep, responsible for the registration of insurance, open complementary pension, savings bonds and reinsurance operations;
XIII - insurance service initiation companies: a corporation, accredited by Susep as an Open Insurance participant, which provides data aggregation services, information and control panels (dashboards) or, as the client's representative, with consent given by the client, provides transaction initiation services, without holding at any time the resources paid by the client or received by it, with the exception of potential remuneration for the service;
XIV - experimental regulatory environment (Regulatory Sandbox): consists of special, limited and exclusive conditions to be met by insurance companies for a limited period of time; and
XV - temporary authorization: authorization to operate granted in the scope of the Regulatory Sandbox.
CHAPTER II
GENERAL PROVISIONS
Art. 3. Susep, in the course of the analysis of the matters dealt with in this Resolution, may:
I - request any documents and additional information it deems necessary to decide on any requirements, including from authorities abroad; and
II - request a technical interview the members of the control group, the holders of qualified shareholdings and those appointed, elected or nominated to exercise positions in statutory or contractual bodies of the supervised companies, reinsurance brokers and foreign reinsurers.
Art. 4. It must be submitted to Susep for prior authorization:
I - the requirements from the supervised companies related to the operation, dissolution or change in the corporate object, transfer of corporate control, corporate transformation, merger, spin-off or incorporation, capital reduction, exercise of positions in statutory or contractual bodies, portfolio transfer, change in the geographic area of operation and request for conversion of temporary authorization into permanent authorization of the companies participating in the Regulatory Sandbox; and
II - the requirements for holding a position in statutory or contractual bodies of reinsurance brokers and by the representative of admitted reinsurers.
§ 1. The transfer of corporate control is any change, direct or indirect, in the control group of the supervised entities, which may imply changes in the personnel who effectively manage the entity's business, and include:
I - execution or alteration of a shareholders or quota holders agreement;
II - inheritance and acts of will disposition; or
III - other acts, by a person or group of people, that represent a common interest within the company.
§ 2. The term for acts subject to prior approval will be ninety (90) days as from the receipt of a favorable manifestation from Susep.
§ 3. The period mentioned in § 2 may be extended, at Susep's discretion.
§ 4. The transfer of corporate control only takes place in cases where there is a change in the supervised company's final controlling shareholders.
Art. 5. It must be submitted to Susep for validation:
I - the acquisition or expansion of qualified participation, capital increase and changes in the bylaws of the supervised companies;
II - the start and end of operations in Brazil, the inclusion of a new branch or group of insurances in the authorization, the updating of the registration, and the change of the proxy of foreign reinsurers;
III - the operation and dissolution or change in the corporate purpose of reinsurance brokers;
IV - the start and the end of the operations in the market supervised by Susep of the registering entities and the insurance service initiating companies; and
V - the acts listed in art. 4, after they have been performed.
§ 1. In the alteration of the qualified participation foreseen in item I of this article, Susep may request information and documents deemed necessary to the perfect clarification of the operation, including the origin of the funds used in it and the unblemished reputation of those involved.
§ 2. Once the aspects of the transaction referred to in § 1 of this article have been examined and any irregularity has been verified, Susep may order that the transaction be regularized, by means of its undoing or the sale of the qualifying holding.
Art. 6. It must be communicated to Susep:
I - the change of the company name, of the proxy's data, and of the headquarters or country of origin, and the merger, spin-off, or incorporation of foreign reinsurers;
II - the resignation or removal of members of statutory or contractual bodies of supervised companies and reinsurance brokers, and of the representative of admitted reinsurers;
III - the alteration in the designation of functions of the statutory officers of the supervised companies; and
IV - the alteration of the company name, transfer of control, merger, spin-off or incorporation, acquisition and expansion of qualified participation, capital increase or reduction, and alterations to the bylaws of reinsurance brokers.
Art. 7. Susep may also reject requests related to the matters dealt with in this Resolution, should it be ascertained:
I - a circumstance that may affect the unblemished reputation of the members of statutory or contractual bodies, the members of the control group, the holders of qualifying holdings, the proxies and representatives of foreign reinsurers, or of the supervised companies, reinsurance brokers and reinsurers themselves; or
II - falsity in the statements or documents presented in the instruction of the procedure.
Sole Paragraph. In the cases mentioned in this article, Susep will grant a deadline to the interested parties to present justifications and, whenever possible, to correct the faults.
Art. 8. Susep may dismiss the requests related to the matters dealt with in this Resolution when:
I - the technical presentation foreseen in art. 12 is not carried out;
II - there is non-compliance with any of the deadlines provided for in the regulations in effect;
III - the processes are not instructed with all the documentation required by the norms in effect; and
IV - requests to present additional documents, to provide information, to attend technical interviews, or other requests related to the process are not met within the deadline.
§ 1. In the cases foreseen in items I and III of this article, there will be no analysis of any document presented by the applicant.
§ 2. In the hypothesis of a dismissal, a new request must be formulated, accompanied by all the updated documentation.
Art. 9. If, after the authorization, false statements or documents presented in the instruction of the processes foreseen in this Resolution are verified and considering the relevance of the omitted or distorted facts, based on the circumstances of each case and the public interest, Susep may:
I - in the case of authorization and registration processes, as well as election or appointment to exercise a position in a statutory or contractual body, revoke the decision that approved the request; and
II - in the case of change of control, corporate reorganization, or acquisition of a qualified stake, determine that the operation be regularized.
§ 1. In the hypothesis described in this article, Susep must start an administrative process, notifying the person responsible for the false declaration or document, in order to manifest about the irregularity verified.
§ 2. The person responsible for the false declaration or document, if not found at the address provided to Susep, will be notified in the manner prescribed by law.
§ 3. The measures provided for in this article may also be adopted if, at any time, circumstances occurring before or after the election or appointment that may affect the unblemished reputation of those elected or appointed to statutory or contractual positions are found.
§ 4. Susep may determine the replacement of the elected or appointed person if circumstances are found, at any time, after the election or appointment that may affect the unblemished reputation of those elected or appointed for statutory or contractual positions.
§ 5. For the purposes of the provision in item I of this article, the proxies of foreign reinsurers are equivalent to those elected or appointed for statutory or contractual positions.
Art. 10. Susep may prohibit, for persons residing or companies headquartered in countries for which the Financial Action Task Force on Money Laundering - FATF proposes the application of countermeasures in view of deficiencies in their mechanisms to prevent the crime of money laundering and financing of terrorism:
I - the registration referred to in art. 23; and
II - the direct or indirect participation or entrance of a partner or quota holder in supervised companies and reinsurance brokers.
CHAPTER III
AUTHORIZATION TO OPERATE
Art. 11. In the process of authorization to operate, the person responsible for conducting the process at Susep must be indicated.
Art. 12. The authorization processes for operation must be preceded by a technical presentation about the general aspects of the project.
Sole paragraph. The technical presentation foreseen in this article must be made by the person responsible for conducting the process at Susep.
Art. 13. For the purposes of obtaining authorization to operate, the corporate purpose must be exclusively:
I - operation in the insurance, open complementary pension, savings bonds or reinsurance market, as the case may be, for the supervised companies; and
II - acting as an intermediary in reinsurance and retrocession contracting, for reinsurance brokers.
Sole paragraph. The provisions in this article do not apply to:
I - the support activities concerning the operations of the entities dealt with in this article: and
II - the provision of technical services directly associated with reinsurance and retrocession operations.
Art. 14. For the purposes of obtaining authorization to operate, the corporate name of the supervised company and the reinsurance broker must:
I - disclose its social object;
II - not contain an acronym or name of public agencies or international organizations; and
III - comply with the business name protection rules established by the Civil Code, as defined by the General Business Registration Guidelines (DREI).
Art. 15. Susep, in the cases it deems necessary, may require the execution of an agreement of shareholders or quota holders comprising express definition of the control group of the reinsurance supervised company or broker subject to the process.
§ 1. The provision in this article does not apply to:
I - the supervised companies or reinsurance brokers whose shares are traded on a stock exchange; or
II - to insurance and reinsurance companies, open complementary pension entities, or reinsurance brokers whose control structure is of a widely held stock.
§ 2. The savings bonds companies must be constituted with a defined control structure and with the identification of its members.
Art. 16. The foreign supervised companies and reinsurance brokers may request authorization to operate in Brazil, by means of an agency, pursuant the requirements of art. 17 and 21, as the case may be.
Section I
Supervised Companies
Subsection I
The Ordinary Procedure
Art. 17. The authorization procedures for the operation of supervised companies will depend on the fulfillment of the following conditions:
I - presentation of a business plan, in the form defined by Susep;
II - identification of the members of the control group, natural and legal persons, and of the holders of qualified shareholdings, if any, with their respective corporate or contractual holdings, who may exercise direct or indirect influence on its business;
III - indication of economic and financial capacity compatible with the size, nature and objective of the intended undertaking, to be met, at the discretion of Susep, by the supervised company or, if any, individually by the controlling shareholder or by the control group;
IV - identification of the origin of the resources to be used in the venture by all investors; and
V - inexistence of restrictions that may, in Susep's discretion, affect the unblemished reputation of the controlling shareholders and holders of qualifying holdings.
Sole Paragraph. In the event the economic and financial capacity referred to in item III in this article is met by the supervised company, the adjusted net equity must be equal to or greater than the maximum value calculated in the first 12 (twelve) months of the projection contained in its business plan, corresponding:
I - two times the minimum capital required, for insurance companies, open complementary pension entities and local reinsurers; and
II - three times the minimum capital required for savings bonds entities.
Art. 18. Within 90 (ninety) days from the receipt of Susep's favorable manifestation regarding the fulfillment of the conditions foreseen in art. 17, the interested parties must:
I - formalize the corporate acts of operation and election of the first managers and other members of the statutory bodies of the legal entity object of the authorization to operate, and submit them to Susep's approval, in the manner and deadline established by the latter; and
II - prove the origin and movement of resources used in the undertaking by all investors.
§ 1. It is forbidden to carry out private operations of the supervised companies before the issuance of the authorization to operate.
§ 2. The Law of Corporations shall subsidiarily govern the EAPC/SFL.
Art. 19. Once Susep verifies that the conditions foreseen in art. 18, authorization will be issued for the operation of the supervised company.
Sole Paragraph. Once the authorization referred to in this article has been issued, the supervised company will be considered to be functioning, for the purposes of application and compliance with the regulations in effect.
Subsection II
Converting a Temporary Authorization into a Permanent Authorization
Art. 20. The conversion of temporary authorization to operate of supervised companies participating exclusively in an experimental regulatory environment (Regulatory Sandbox), into definitive authorization will depend on the fulfillment of the following conditions:
I - presentation of a business plan, in the form defined by Susep; and
II - indication of economic and financial capacity compatible with the size, nature and objective of the intended undertaking, to be met, at the discretion of Susep, by the supervised company or, if any, individually by the controlling shareholder or by the control group.
§ 1. If, in order to comply with the provision in item II of this article, a capital increase is foreseen for the supervised company, the beginning of the validation process of the capital increase, pursuant to item I of art. 5, must be prior to the conversion process of temporary authorization to operate into definitive authorization.
§ 2. The procedure referred to in this article must be initiated up to the end of the temporary authorization term.
Section II
Reinsurance Brokers
Art. 21. In order to obtain authorization to operate, the reinsurance broker must meet the following conditions:
I - be organized as a limited company, in the terms of the regulations in effect;
II - identify the members of the control group and the holders of shares or company
II - identify the members of the control group and the holders ofqualified shareholding, with respective stakes in the capital stock;
III - prove the origin and movement of resources used in the composition of the capital stock by all investors;
IV - prove the inexistence of restrictions that may, in Susep's discretion, affect the unblemished reputation of the controlling shareholders and holders of qualifying holdings, pursuant to art. 44; and
V - appoint a technical manager, who is an officer or managing partner, to be responsible for the acts of reinsurance and retrocession brokerage, as well as to be accountable before Susep for complying with the legal and regulatory provisions in effect and for complying with the information requested concerning the contracts brokered.
Sole paragraph. The reinsurance broker's technical representative must be a specialized insurance broker actively registered with Susep and residing in Brazil.
Art. 22 - Once authorized to operate, and under penalty of cancellation, the reinsurance broker must contract in Brazil, within a maximum period of 30 (thirty) days, as of the date of said authorization, a professional liability insurance policy, with a minimum guarantee limit of R$ 10,000,000.00 (ten million reals), or the equivalent in a freely convertible foreign currency, to respond for the fulfillment of the obligations related to the services rendered in the Brazilian market and guarantee of any losses arising from its professional performance.
§ 1. In case the insurance mentioned in this article is contracted in foreign currency, the provisions of specific legislation in effect will apply.
§ 2. The insurance referred to in this article must be maintained and contracted and/or renewed until the extinction of the responsibilities assumed as reinsurance broker.
§ 3. It will not be admitted a policy with a mandatory participation clause from the insured higher than R$ 100,000.00 (one hundred thousand reals), or the equivalent in foreign currency in which the insurance has been contracted.
§ 4. Susep must receive a copy and be kept informed, during the validity period, of any and all alterations that are restrictive to the conditions of the original policy, and the reinsurance broker and the insurer guaranteeing the risk must inform any alterations, under penalty of suspension of the authorization for operation of the reinsurance broker.
Section III
Foreign Reinsurers
Art. 23. The authorization for foreign reinsurers to start operations in Brazil, as provided in item II of art. 5, occurs with the registration of these reinsurers by Susep.
Sole paragraph. The authorization established in this article is only valid for the branches and classes of insurance informed by the foreign reinsurer in the registration process.
Art. 24. In the registration process of foreign reinsurers, an attorney, a natural person, domiciled in Brazil, with special powers to receive summons, subpoenas, notifications and other communications, who will be responsible for conducting the process at Susep, must be appointed.
Art. 25. In the authorization processes for foreign reinsurers, the requirement mentioned in art. 12 will occur before the request for registration.
Art. 26. For the purposes of the registration referred to in art. 23, the foreign reinsurer must meet the following minimum requirements:
I - to be constituted according to the laws of its country of origin, to underwrite local and international reinsurance, in the branches in which it intends to operate in Brazil;
II - to have started local and international reinsurance underwriting operations in the country of origin more than five (5) years ago in the lines of business in which it intends to operate in Brazil;
III - to be in good standing with regard to its solvency before the supervisory agency of the country of origin.;
IV - to present the financial statements in the manner defined by Susep; and
V - not having had its registration cancelled on Susep's own initiative in the last 5 (five) years.
§ 1. Any change in the information referred to in the head of this article, at any time between the renewals period, which results in non-compliance with the minimum requirements imposed by the legislation for the maintenance of the registration, must be communicated in the manner and timeframe established by Susep.
§ 2. The information foreseen in this article must be periodically updated in the manner defined by Susep.
§ 3. In the event of a change of country of head office in a period of less than 5 (five) years, and for the purposes of the calculation referred to in item II of this article, the time of experience in the previous country of head office of the foreign reinsurer may be considered.
Art. 27. In the case of registration of a foreign reinsurer specialized in nuclear risks, constituted in the form of a consortium or mutual association:
I - the consortium members will be considered a single entity;
II - for the purposes of item I of art. 28, the sum of the net worth of the entities that make up the consortium or mutual association must be considered;
III - potential reserves and promises of capital contribution should not be included in the composition of resources referred to in item I of art. 28; and
IV - in the case of the existence of a solidarity clause among the consortium member-companies or of a specific fund for their operations, Susep may accept the solvency rating of one of the consortium members for the purpose of complying with the requirement of item II, art. 28.
Art. 28. Besides the requirements foreseen in art. 26, for the purposes of registration, the foreign reinsurer must:
I - have individual net worth of not less than USD150,000,000.00 (one hundred and fifty million US dollars), or the equivalent in other freely convertible foreign currency, certified by an external auditor; and
II - have an individual solvency rating, issued by at least one risk rating agency, with the following minimum levels:
Risk Rating Agency
|
Standard & Poor’s |
BBB |
|
Fitch |
BBB |
|
Moody’s |
Baa2 |
|
AM Best |
B++ |
§ 1. The registration referred to in this article of eventual reinsurers headquartered in tax havens is forbidden. These are considered to be countries or dependencies that do not tax income or that tax it at a rate lower than 20% (twenty percent), or whose internal legislation imposes secrecy with regard to the corporate structure or ownership of legal entities.
§ 2. For purposes of complying with item II of this article, the solvency report of the economic group that the foreign reinsurer belongs to may be accepted, when it is possible to identify its individual rating.
§ 3. Exceptionally, if Susep finds lack of competition in the reinsurance market in any specific line of business, the minimum equity provided in item I of this article may be reduced by up to 50% (fifty percent).
§ 4. The reduced amount of net worth required will be effective for all subsequent annual document renewals for the reinsurer registered in accordance with the exception referred to in § 3 of this article.
§ 5. For the purposes of complying with § 3 of this article, the measurement of the lack of competition may be indicated, by Susep, on its own initiative, or by a reinsurer, under the terms of this Resolution, when the specific procedure for this purpose is analyzed.
§ 6. Any change in the information referred to in items I to II of this article, at any time between the renewal periods, which results in non-compliance with the minimum requirements imposed by the legislation for the maintenance of the registration, must be communicated to Susep.
§ 7. The information foreseen in this article must be updated periodically in the form and term defined by Susep.
§ 8. Susep may, at any time, exclude or change the risk rating agencies, foreseen in item II of this article.
Art. 29. Admitted reinsurers must also:
I - have a foreign currency account in Brazil, linked to Susep, in a bank authorized to operate in foreign exchange in Brazil, with a minimum balance in cash, to guarantee its operations in Brazil, with the option to invest in financial assets, observing the guidelines set by the National Monetary Council - CMN and rules issued by CNSP related to guarantees and provisions, in the amount of:
a) USD 5,000,000.00 (five million US dollars) or equivalent in another freely convertible foreign currency, for reinsurers covering risks inherent to the classes of property and casualty, and life; and
b) USD 1,000,000.00 (one million US dollars) or equivalent in another freely convertible foreign currency, for reinsurers only covering risks inherent to the class of life;
II - establish or hire a representative office in Brazil in advance.
Subsection I
Representation of the Admitted Reinsurer
Art. 30. The admitted reinsurer shall have, while maintaining operations in Brazil, representation, which may be exercised directly, by means of its own office, or through duly contracted third party legal entities.
§ 1. The representative referred to in this article:
I - shall have full powers to deal with any issues concerning theoffice of representation and resolve them definitively, if any; and
II - may accumulate the function of attorney-in-fact for the admitted reinsurer pursuant to art. 24.
§ 2. In the event of the representation being exercised directly, by means of a separate office, the representative mentioned in this article will be the one responsible for the representative office.
§ 3. The obligations assumed by the representative in Brazil before Brazilian cedents are integrally binding to the admitted reinsurer.
§ 4. The representatives should meet the conditions foreseen in art. 44.
CHAPTER IV
SUSPENSION AND CANCELLATION OF THE AUTHORIZATION TO OPERATE AND REGISTRATION
Art. 31. The cancellation of the authorization to operate and of the registration may be:
I - voluntary; or
II - by act of Susep, on its own initiative.
Art. 32. The voluntary cancellation of the authorization to operate and of the registration will occur after Susep's validation:
I - of a corporate act that deliberated for the Ordinary Liquidation of the supervised company;
II - of a request for cancellation of the registration made by foreign reinsurers;
III - of the dissolution of reinsurance brokers; or
IV - changes in the corporate purpose of supervised companies, reinsurance brokers, and foreign reinsurers that result in their de-characterization as an entity belonging to the market supervised by Susep.
Art. 33. Susep will cancel, on its own initiative, the authorization to operate and the registration in the following hypothesis:
I - decree of Extrajudicial Liquidation of the supervised company by Susep's Board of Directors; or
II - expiration of the established term without the supervised company, foreign reinsurer or reinsurance broker ceasing the reasons that caused its suspension, pursuant to art. 35.
Art. 34. The following are indispensable requirements for the voluntary cancellation of the authorization to operate:
I - give publicity to the intention, in the manner defined by Susep; and
II - instruction of the respective procedure under the terms and conditions established by Susep.
§ 1. In addition to the requirements established in this article, Susep may:
I - in the case of supervised companies and reinsurance brokers, subject the cancellation to the guarantee of settlement of contingent liabilities transactions; or
II - in the case of admitted reinsurers, subject the release of the amount in foreign currency account in Brazil, provided for in item I of art. 29, to the guarantee of settlement of contingent liabilities transactions.
§ 2. The provisions of this article do not apply to the extinction of supervised companies, foreign reinsurers and reinsurance brokers as a result of merger, total split or incorporation, provided the resulting entity or successor is authorized to operate or is registered by Susep.
Art. 35. Susep, after exhausting the other applicable measures within its jurisdiction and without prejudice to the potential decree of a special regime, may suspend the authorization to operate or the registration of the supervised companies, foreign reinsurers and reinsurance brokers, when one or more of the following situations is found, at any time:
I - with respect to the supervised companies:
a) operational inactivity;
b) failure to locate the entity at the physical or electronic address as informed to Susep;
c) interruption of the sending of information to Susep, as required by the regulations in force;
d) failure to meet, at any time, one or more conditions required for operating authorization;
II - with respect to foreign reinsurers:
a) failure to locate the representatives or the attorney-in-fact at the physical or electronic address informed to Susep;
b) interruption of the sending of information to Susep, as required by the regulations in force;
c) non-compliance, at any time, with one or more registration requirements; or
d) non-compliance with the deadline stipulated by Susep for the full presentation of the documents required for the periodic updating of the data or the presentation of outdated documentation;
III - with respect to reinsurance brokers:
a) failure to locate the reinsurance broker at the physical or electronic address informed to Susep;
b) interruption, of the sending of information to Susep, as required by the regulations in force;
c) failure to contract or renewal of civil liability insurance professional foreseen in art. 22; or
d) failure to meet, at any time, one or more conditions required for operating authorization.
§ 1. The suspension referred to in this article implies the prohibition of:
I - issuing savings bonds or insurance policies, tickets and slips;
II - the renewal of insurance policies;
III - the commercialization of open complementary pension plans;
IV - the commercialization of reinsurance coverage; and
V - the reinsurance contracts intermediation.
§ 2. Automatic reinsurance contracts may be maintained until the end of their term, limited to a period of 1 (one) year as of the date of suspension.
§ 3. The cedent is authorized to terminate the contract with the reinsurer in the hypothesis of suspension dealt with in item II of this article.
§ 4. Susep shall previously notify the supervised company, the foreign reinsurer and the reinsurance broker about their inclusion in the situations set forth in this article.
§ 5. Once the cause for suspension has ceased, Susep will reestablish the operating conditions prior to the imposition of the measure.
§ 6. If the supervised company, foreign reinsurer or reinsurance broker does not cease the reasons that gave rise to the suspension until the last day of the suspension period, the measure may be converted into cancellation.
Art. 36. The supervised company, foreign reinsurer or reinsurance broker whose operating authorization or registration is cancelled may only obtain a new authorization or registration by meeting all the requirements set forth in this Resolution.
Art. 37. The suspension or cancellation does not release the supervised company, the foreign reinsurer and the reinsurance broker from complying with all their obligations in relation to the signed contracts.
CHAPTER V
THE CORPORATE CONTROL STRUCTURE
Art. 38. The provisions of this Resolution concerning control and control group will only be applicable in cases in which there is identification of its members, according to the criteria established in item V of art. 2.
Sole paragraph. In the cases in which the control group is not identified, the bylaws of the supervised company must provide for the distribution of dividends only after two fiscal years consecutive to the start of its operations, except for the mandatory dividends, in accordance with the legislation.
Art. 39. Direct equity interests in the supervised companies, as a member of the control group, can only be held by:
I - natural persons;
II - supervised companies and foreign reinsurers;
III - legal entities that have as their purpose the participation in supervised companies; or
IV - investment funds that have as their object to hold stakes in supervised companies.
§ 1. The entry of a partner as a member of the control group requires compliance with this article.
§ 2. In the hypothesis foreseen in items III and IV of this article, the object can contemplate other activities, as long as they are related to the main business to the insurance and reinsurance market.
§ 3. In the hypothesis of item IV of this article, the investment fund manager must prove:
a) the existence of, and compliance with a money laundering and anti-terrorism policy in accordance with the laws of its home country; and
b) its regularity of registration with the supervisory body in its country of origin, if applicable.
§ 4. The provisions of this article may be applied to entities incorporated before this Resolution goes into effect.
Art. 40. The processes of transfer of corporate control of supervised companies must be preceded by a technical presentation on the general aspects of the project.
Sole paragraph. The technical presentation foreseen in this article must be made by the person responsible for conducting the process at Susep.
Art. 41. It is subject to the absence of objection by the home country supervisor:
I - the constitution, in Brazil, of a subsidiary of a supervised company headquartered abroad; and
II - the entrance of an insurance company, reinsurer, savings bonds company and open complementary pension entity, headquartered abroad, in the direct or indirect control group of the supervised company.
Art. 42. The bylaws of the EAPC/SFL, when regulating the form of their administration and control, will establish an independent division between the controlling shareholders and the simple participants of the benefit plans.
Sole paragraph. The controlling members, even if they do not directly exercise functions as directors, will be jointly and severally liable for the acts practiced by the collegiate body itself or by the EAPC/SFL's board of directors.
CHAPTER VI
THE EXERCISE OF POSITIONS IN STATUTORY OR CONTRACTUAL BODIES
Art. 43. The election, investiture and exercise of positions in statutory or contractual bodies of supervised companies and reinsurance brokers are exclusive to persons whose appointment has been previously and expressly authorized by Susep.
§ 1. Prior to the execution of the corporate act, the supervised companies and the reinsurance broker shall consult Susep as to the compliance with the conditions and requirements, by the indicated persons, for the exercise of the respective positions.
§ 2. The provisions of § 1 of this Article do not apply to cases of re-election or election of whoever occupies or has occupied in the last 6 (six) months positions in statutory or contractual bodies of supervised companies, representative offices of admitted reinsurers or reinsurance brokers, in which case the corresponding corporate act may be performed, regardless of prior consultation.
§ 3. The consultation referred to in § 1 of this article will be limited to the number of positions to be filled by election or appointment.
§ 4. The tacit authorization in the form of the legislation in effect does not exempt the elected or appointed candidate from complying with the rules applicable to the conditions and requirements for exercising the position.
§ 5. Once approval is granted by Susep, the supervised companies and reinsurance brokers must execute the corresponding corporate act, as well as invest the elected members within a maximum period of ninety (90) days, as from the receipt of the communication of approval or from the expiration of the period mentioned in § 4 of this article, and failure to comply with the period will result in a new consultation.
§ 6. The members elected or appointed to statutory or contractual bodies of the supervised companies must serve a term of up to 3 (three) years, reelection being permitted.
Art. 44. The following are conditions for the exercise of positions in statutory or contractual bodies of supervised companies and reinsurance brokers:
I - have an unblemished reputation;
II - be duly registered in the Individual Taxpayers' Register;
III - not being barred by special law, nor convicted for bankruptcy crime, tax evasion, prevarication, active or passive corruption, graft, embezzlement, administrative improbity against the popular economy, the public faith, the property, the National Financial System, or convicted to a criminal penalty that prohibits, even temporarily, access to public positions;
IV - not being declared disqualified or suspended from exercising statutory or contractual positions in the supervised companies, representative offices of admitted reinsurers and reinsurance brokers or in entities authorized to function by the Central Bank of Brazil - Bacen, National Superintendence of Complementary Pension Funds - Previc, National Agency of Supplementary Health - ANS, other regulatory agencies and publicly-held companies or entities subject to the supervision of the Securities and Exchange Commission of Brazil - CVM;
V - not to answer, nor any company of which the applicant is controller or administrator, for protested bonds, judicial collections, default on obligations, and other similar occurrences or circumstances;
VI - not have been declared bankrupt or insolvent in the last five (5) years; and
VII - not having controlled or managed, in the five (5) years preceding the election or appointment, a firm or company subject to a declaration of insolvency, extrajudicial liquidation, intervention, special temporary administration regime, or bankruptcy.
§ 1. To evaluate the compliance, by the elected or appointed person, with the requirement established in item I of art. 44, Susep may take into account the following situations and occurrences:
I - criminal proceedings to which the elected or nominated person or any company of which the applicant is or has been, at the time of the facts, a controller or administrator, is being investigated; and
II - judicial or administrative proceedings related to the National System of Private Insurance or to the National Financial System, or to the CVM, Previc, or ANS.
§ 2. When analyzing the parameters stipulated in items I and V of this article, Susep will consider the circumstances of each case, as well as the context in which the election of the applicants takes place, in order to evaluate the possibility of accepting the validation of their names.
§ 3. Susep's approval of names to exercise positions in statutory or contractual bodies of supervised companies and reinsurance brokers does not exempt the elected or nominated, the entities, their controllers and managers from the responsibility for the veracity of the information provided to Susep.
§ 4. The statutory or contractual bodies referred to in this article can be occupied by up to 35% (thirty-five percent) by members who are not resident in Brazil.
§ 4. The statutory director appointed to exercise a specific function, as required by the regulations in force, must be resident in Brazil.
Editora Roncarati’s Note: § 4º was amended by CNSP Resolution 441, of 05.07.2022.
Art. 45. In addition to the basic conditions referred to in art. 44, those indicated for positions in statutory or contractual bodies of the supervised companies and reinsurance brokers must have technical qualification compatible with the duties of the positions for which they will be elected or nominated, and the members of the Fiscal Council must be graduates in a higher education course, or equally equivalent, carried out in Brazil or abroad, or have held for a minimum period of 3 (three) years, the position of company administrator or fiscal council member.
§ 1. The technical qualification referred to in this article must be proven based on academic background, professional experience, or other issues deemed relevant by Susep.
§ 2. The proof of the requirement in § 1 does not apply to cases of re-election or election of those who occupy or have occupied in the last 6 (six) months positions in statutory or contractual bodies of the supervised companies, representative offices of admitted reinsurers and reinsurance brokers.
§ 3. For the exercise of some specific functions, Susep may foresee the requirement of technical certification of the nominee for positions in statutory or contractual bodies of supervised companies, representative offices and reinsurance brokers.
Art. 46. The bylaws or articles of incorporation of the supervised companies not incorporated as corporations must contain a clause establishing that the term of office of those occupying positions in their statutory or contractual bodies, with the exception of the Fiscal Council, will extend until their successors take office.
Art. 47. The verification, at any time, of a non-compliance, supervening or not, revealed during the previous consultation, election or appointment, to a requirement foreseen in this Resolution may imply, according to the conditions of each factual case, the suspension or revocation of the approval act of the consultation, election or appointment and the establishment of a sanctioning administrative process, without prejudice to other applicable legal procedures.
Sole Paragraph. Without prejudice to the provision in this article, the supervised companies and reinsurance brokers are obliged to immediately remove or dismiss the occupants of statutory or contractual positions, whenever non-compliance with the requirements or impediments to the exercise of positions in their statutory or contractual bodies is verified.
Art. 48. When a member of the Board of Directors who is not resident in Brazil is elected, an attorney-in-fact, a natural person, with powers to receive service of process in actions brought against him/her based on the corporate legislation, must be constituted by means of a power of attorney with a validity term that must extend at least 5 (five) years after the end of the director's term of office.
Art. 48. At the time of the election of a member of a statutory or contractual body who is not a resident in Brazil, an attorney-in-fact, a natural person, must be appointed with powers to receive service of process in actions brought against him/her based on corporate law, through a power of attorney with a validity period that must extend at least 5 (five) years after the end of the term of office.
Editora Roncarati’s Note: Article 48 was amended by CNSP Resolution 441, of 05.07.2022.
Art. 49. The supervised companies must assign specific functions to statutory directors, pursuant to the regulations in effect.
Art. 50. The provisions of this Chapter apply to the legal representatives of foreign companies operating in Brazil.
CHAPTER VII
THE PAID-IN CAPITAL OF THE SUPERVISED COMPANIES
Art. 51. In the act of incorporation of the entity, the social capital must be paid up in currency or any kind of goods susceptible to valuation in money, and must be equal or superior to the minimum required, as established in the specific legislation.
Art. 52. On the date of the corporate act that decides on the functioning of the entity or the capital increase, the capital subscribers shall pay in current currency a minimum of 50% (fifty percent) of the total subscribed, provided that the paid-in capital is not less than the minimum required.
Sole paragraph. The payment of the remaining capital may occur within 12 (twelve) months, as of the act's approval date.
CHAPTER VIII
TRANSFERS OF PORTFOLIOS OF THE SUPERVISED COMPANIES
Art. 53. The transfer of insurance, savings bonds, open complementary pension and reinsurance portfolios is permitted between entities with similar activities, in compliance with specific Susep regulations.
Sole paragraph. The approval of the entity's Deliberative Council will be required for EAPC/SFL portfolio transfer operations.
Art. 54. In the transfer of the portfolio, all rights and obligations arising from the contracts signed by the insured, participants of open complementary pension plans, subscribers and holders of savings bonds and assignors will be preserved in their benefit and that of their beneficiaries, when this is the case.
CHAPTER IX
FINAL PROVISIONS
Art. 55. Susep is authorized to enact complementary rules necessary for the execution of the provisions of this Resolution, including with regard to authorizations related to micro insurance operations.
Art. 56. The omitted cases shall be decided by Susep's Board of Directors.
Art. 57. This Resolution revokes:
I - CNSP Resolution no. 19, of 20 July 1978;
II - CNSP Resolution no. 1, of 6 February 1980;
III - CNSP Resolution no. 1, of 17 February 1981;
IV - CNSP Resolution no. 15, of 3 December 1991;
V - CNSP Resolution no. 17, of 17 July 1992;
VI - CNSP Resolution no. 23, of 17 February 2000;
VII - CNSP Resolution no. 53, of 3 September 2001;
VIII - CNSP Resolution no. 79, of 19 August 2002;
IX - CNSP Resolution no. 101, of 6 January 2004;
X - CNSP Resolution no.142, of 27 December 2005;
XI - CNSP Resolution no. 160, of 26 December 2006;
XII - Art. 3 to 6 of CNSP Resolution no. 168, of 17 December 2007;
XIII - Art. 7 and 21 of CNSP Resolution no. 173, of 17 December 2007; XIV - CNSP Resolution no. 220, of 6 December 2010;
XV - CNSP Resolution no. 248, of 8 December 2011;
XVI - CNSP Resolution no. 330, of 9 December 2015;
XVII - CNSP Resolution no. 373, of 8 July 2019;
XVIII - CNSP Resolution no. 387, of 9 June 2020; and
XIX - Art. 3 of CNSP Resolution no. 418, of 20 July 2021.
Art. 58. This Resolution shall come into force on 3 January 2022.
RAFAEL PEREIRA SCHERRE
(Official Gazette “DOU” of 16 november 2021 - pages 19 to 22 - Section 1)
*The information provided in this publication is general and may not apply to a specific situation or person. Every effort has been made to ensure that matters of concern to readers are covered. Although the information provided is accurate, be advised that this is a developing area. The information contained herein is not intended to be relied upon or to be a substitute for legal advice in relation to particular circumstances. Specific legal advice should always be sought from experienced local advisers. Accordingly, Editora Roncarati accepts no liability for any loss that may arise from reliance upon this publication or the information it contains.
