Resolution No. 233

BCB RESOLUTION

NO. 233, OF JULY 27, 2022

Regulates the authorization processes related to the operation of consortium administrators.

The Collegiate Board of the Central Bank of Brazil, in a session held on July 27, 2022, based on Articles 6 and 7 of Law No. 11,795, of October 8, 2008,

RESOLVES:

CHAPTER I

OBJECT AND SCOPE OF APPLICATION

Art. 1. This Resolution regulates the authorization processes related to the operation of consortium administrators.

CHAPTER II

REQUIREMENTS

Art. 2. The requirements for the authorizations referred to in this Resolution are:

I - economic-financial capacity of the controllers, individually or jointly, compatible with the capital necessary for the structuring and operation of the administrator, as well as for contingencies arising from market dynamics;

II - lawful origin of the resources used in the full payment of share capital, in the acquisition of control and qualified participation;

III - economic-financial viability of the venture;

IV - compatibility of the information technology infrastructure with the complexity and risks of the business;

V - compatibility of the corporate governance structure with the complexity and risks of the business;

VI - unblemished reputation of those holding executive positions and of controllers, in the case of natural persons;

VII - knowledge, by the administration, of the business sector, market dynamics, sources of operational resources, management of activities and associated risks;

VIII - technical qualification of administrators, compatible with the functions to be performed during the term of office; and

IX - compliance with minimum capital and equity requirements set forth in current regulations.

§ 1. For the purposes of this Resolution, administration comprises managing partners, directors, and members of the board of directors, if any.

§ 2. In demonstrating the requirement referred to in item III of the caput, the Central Bank of Brazil may require the presentation of a business plan.

§ 3. In demonstrating the requirement referred to in item IV of the caput, the Central Bank of Brazil may require technical certification issued by a qualified independent company.

CHAPTER III

AUTHORIZATIONS

Art. 3. The following depend on authorization from the Central Bank of Brazil:

I - the operation of the administrator, conditioned on compliance with the requirements set forth in Art. 2;

II - the transfer or alteration of corporate control, conditioned on compliance with the requirements set forth in items I, II, and VI of Art. 2 and the conditions set forth in Chapters IV and V, as well as the requirement set forth in item III of Art. 2, in cases of change in strategic or operational nature;

III - the merger, spin-off, or incorporation of a consortium administrator, conditioned on compliance with the requirements set forth in items III and IX of Art. 2;

IV - corporate transformation;

V - the taking of office and exercise of elected or appointed positions for executive roles, conditioned on compliance with the requirements set forth in items VI and VIII of Art. 2 and the conditions set forth in Chapter V;

VI - the alteration of the share capital value, conditioned on compliance with the requirement set forth in item II of Art. 2, in case of increase, or the requirements set forth in items III and IX of Art. 2, in case of capital reduction; and

VII - the change of corporate name.

Art. 4. The Central Bank of Brazil, before or after the issuance of the authorizations provided for in Art. 3, may:

I - request any additional documents and information it deems necessary, as well as request them from other public administration bodies and authorities abroad; and

II - summon for interview controllers, holders of qualified participation, and administrators.

Art. 5. The Central Bank of Brazil will publish, with a view to enabling public manifestation regarding any objections, information regarding requests of interest to the consortium administrator, including at minimum:

I - the name of persons interested in assuming the status of controller;

II - the name of those elected or appointed to executive positions; and

III - the cancellation of authorization for operation.

§ 1. The publications referred to in items I and II of the caput will be restricted to persons whose name has not previously been approved by the Central Bank of Brazil.

§ 2. Considering the size of the administrator, the complexity, and the risks involved in the authorization, the Central Bank of Brazil may, if it deems necessary, publish additional information to that provided in this article, including that dispensed with under the terms of § 1.

§ 3. The deadlines for presenting objections by the public resulting from the publication of the information referred to in the caput will be defined by the Central Bank of Brazil.

Art. 6. The Central Bank of Brazil, taking into account the object of the authorization, the size of the administrator, and the complexity of the business, will publish the procedures, documents, and information required in the authorization processes referred to in this Resolution, as well as the respective deadlines, with a view to meeting the requirements related to each specific authorization process.

CHAPTER IV

CORPORATE CONTROL AND QUALIFIED PARTICIPATION

Art. 7. For the purposes of this Resolution, it is understood as:

I - controller: a person who, individually or jointly with other members of a control group of which they are part, holds partner rights corresponding to the majority of voting capital of a corporation or 75% (seventy-five percent) of the share capital of a limited liability company:

a) in the case of a natural person, directly or indirectly; or

b) in the case of a legal entity, directly or, if indirectly, provided that:

1. it appears at the last level of the branches of the control chain of the administrator; and

2. its controllers are not identifiable in the manner provided for in this item;

II - control group: a group of persons linked by a voting agreement or under common control that assumes the status of controller of the administrator, directly or indirectly; and

III - holder of qualified participation: a person, natural or legal, not a controller of the administrator, or an investment fund that holds:

a) direct participation equivalent to 15% (fifteen percent) or more of the voting capital of the administrator;

b) direct participation equivalent to 10% (ten percent) or more of the total capital of the administrator, when this capital does not consist entirely of voting capital;

c) control of a legal entity holding the participation provided for in item "a" or item "b"; or

d) participation in the capital of a legal entity controlling the administrator, in the percentage provided for in item "a" or the percentage provided for in item "b".

§ 1. It is considered at the last level of the branch of the control chain of the administrator, in cases of direct or indirect participation, the financial institution or similar entity headquartered abroad responsible for the global consolidation of the financial group.

§ 2. The definitions of controller and holder of qualified participation apply to usufructuaries of the right to vote.

§ 3. In cases where the control of the administrator is not identified according to the criteria mentioned in items I and II of the caput, the Central Bank of Brazil may use other elements to identify the controllers, including:

I - the majority of votes in the deliberations of the meeting or assembly and the power to elect the majority of administrators; or

II - the effectiveness in conducting the business affairs.

§ 4. The Central Bank of Brazil may require the execution of a shareholders' or partners' agreement, including the express definition of corporate control, direct or indirect.

§ 5. In the case of qualified participation held by an investment fund, the provisions applicable to the natural or legal person holding qualified participation, set forth in this Resolution, may be extended to the partners of the investment fund who effectively hold powers to conduct its activities, as established by the Central Bank of Brazil.

§ 6. Investment funds are not admitted as controllers or members of a control group of a consortium administrator.

§ 7. For the purposes of this article, any attribution of plural voting rights to one or more classes of ordinary shares will be considered.

CHAPTER V

TAKING OFFICE AND EXERCISE OF EXECUTIVE POSITIONS AND ASSUMPTION OF THE STATUS OF MEMBER OF THE CONTROL GROUP

Art. 8. In demonstrating compliance with the requirement of unblemished reputation, mentioned in item VI of Art. 2, the existence of the following must be considered:

I - criminal process or police inquiry;

II - judicial or administrative process related to the National Financial System, the Consortium System, or the Brazilian Payments System;

III - process related to insolvency, liquidation, intervention, bankruptcy, or judicial reorganization;

IV - default on obligations; and

V - other situations, occurrences, or analogous circumstances.

Sole Paragraph. In the analysis of the situations and occurrences provided for in the caput, the relevance, gravity, recurrence, and circumstances of each case will be considered.

Art. 9. The demonstration of compliance with the requirement of technical qualification of administrators, mentioned in item VIII of Art. 2, involves the competencies and qualifications necessary for the exercise of functions, compatible with the nature, size, complexity, and risks incurred by the consortium administrator.

Sole Paragraph. The demonstration of technical qualification mentioned in the caput is dispensed with in the case of an administrator with a mandate in force in the same administrator or in another institution part of a prudential conglomerate of which they are part, provided that previously authorized by the Central Bank of Brazil, unless otherwise determined by this agency.

Art. 10. The conditions for exercising executive positions and assuming the status of controller in consortium administrators, in addition to others required by legislation and current regulations, are:

I - being a resident in the country, for executive positions;

II - not being prohibited by special law, nor convicted of bankruptcy crime, tax evasion, malfeasance, active or passive corruption, extortion, embezzlement, against the popular economy, public faith, property, or the National Financial System, or sentenced to a penalty that prohibits, even temporarily, access to public office;

III - not being declared ineligible or suspended from exercising positions in statutory or contractual bodies in institutions authorized to operate by the Central Bank of Brazil or in supplementary pension entities, insurance companies, capitalization societies, open corporations, or entities subject to supervision by the Securities and Exchange Commission; and

IV - not being declared bankrupt or insolvent.

Art. 11. If the person elected or appointed to an executive position is not authorized by the Central Bank of Brazil, the consortium administrator must, within thirty days from the date the decision of denial becomes final, carry out the election or appointment of the substitute for the person not approved.

Sole Paragraph. The determination provided for in the caput is dispensed with in the case where the minimum number of members for the respective positions provided for in the bylaws or articles of association is met.

Art. 12. The temporary removal of holders of executive positions determined before the initiation or during the processing of an administrative sanctioning process does not exclude the removed person from the scope of prohibitions applicable to those in office.

Art. 13. The Central Bank of Brazil may determine the removal of holders of executive positions with mandates in force if circumstances characterizing non-compliance with the requirement referred to in item VI of Art. 2 and the conditions set forth in Art. 10 of this Resolution are found at any time.

CHAPTER VI

ARCHIVING, DENIAL, AND REVIEW OF AUTHORIZATIONS

Art. 14. Regarding authorization requests referred to in this Resolution, the Central Bank of Brazil may:

I - archive, without assessing the merits of the request, when:

a) it verifies that the object or elements serving as the basis for the request were altered during the process;

b) there is non-compliance with the deadlines set forth in current regulations;

c) it identifies that the requirements to complement the process documentation were not met within the established deadline;

d) it finds that controllers, holders of qualified participation, or administrators failed to attend the summons by the Central Bank of Brazil for an interview; or

e) the documentation is not in the format required by current regulations;

II - deny, if it is found:

a) a circumstance that may affect the reputation of those holding executive positions, controllers, and holders of qualified participation;

b) falsity or omission in the declarations and documents presented in the process documentation or discrepancy between them and the facts or data found in the analysis; or

c) non-compliance with any of the requirements or conditions established in this Resolution or failure by the interested parties to demonstrate compliance with these requirements or conditions.

Sole Paragraph. In the cases referred to in item II of the caput, the Central Bank of Brazil may, before the decision, grant a deadline to the interested parties to manifest themselves.

Art. 15. The Central Bank of Brazil may review the authorization decision, considering the relevance of the facts, based on the circumstances of each case and public interest, if it verifies:

I - falsity or omission in the declarations and documents presented in the process documentation or discrepancy between them and the facts or data found; or

II - pre-existing circumstances to the decision capable of affecting the evaluation regarding compliance with the requirements and conditions for approvals and authorizations.

§ 1. In the case of transfer of control, corporate reorganization, assumption of the status of controller or holder of qualified participation, and occurrence of one of the situations provided for in the caput, the Central Bank of Brazil may determine that the operation be regularized, including through its unwinding or alienation of the participation.

§ 2. In the hypotheses described in the caput, the Central Bank of Brazil must notify the consortium administrator to manifest itself regarding the irregularity found.

§ 3. The competent registration body will be notified of the measure adopted by the Central Bank of Brazil.

CHAPTER VII

CANCELLATION OF AUTHORIZATION FOR OPERATION

Art. 16. Cancellation of authorization for operation will occur in the following cases:

I - at the request of the consortium administrator; or

II - ex officio, by the Central Bank of Brazil.

§ 1. In the case of extinction of the administrator resulting from merger, total spin-off, or incorporation, the procedures related to the cancellation of authorization for operation are dispensed with, provided that the resulting or successor entity is a consortium administrator.

§ 2. The cancellation of the authorization for operation referred to in item I of the caput is conditioned on the closure of typical consortium operations.

§ 3. The dissolution of the company or the change of its corporate object that results in its disqualification as a consortium administrator implies the cancellation of the respective authorization for operation, in the manner of item I of the caput.

Art. 17. The consortium administrator must disclose to its clients, on its website and in its premises, that it intends to file a request for cancellation of authorization for operation with a minimum advance notice of thirty days from the date of said request.

Art. 18. The Central Bank of Brazil may effect the cancellation referred to in item II of the caput of Art. 16 of this Resolution if it finds, at any time, one or more of the following situations:

I - lack of habitual practice of the activity object of the authorization;

II - non-location of the consortium administrator at the address informed to the Central Bank of Brazil;

III - interruption, for more than four months, without justification, of the sending to the Central Bank of Brazil of the statements, maps, and information required by current regulations;

IV - non-compliance with the business plan during its coverage period, in a manner insufficiently justified, at the discretion of the Central Bank of Brazil; or

V - other situations provided for in current legislation.

§ 1. The Central Bank of Brazil, prior to the cancellation provided for in this article, must:

I - publish to the public the intention to cancel the respective authorization, with a view to the eventual presentation of objections within a period of thirty days; and

II - notify the administrator to manifest itself regarding the intention to cancel.

§ 2. Once the cancellation referred to in this article is effected, the Central Bank of Brazil will communicate with the competent registration body.

§ 3. In the case of a consortium administrator subject to the extrajudicial liquidation regime, the cancellation provided for in this article will occur at the end of the regime, except in the case of transfer of corporate control of the administrator.

CHAPTER VIII

GENERAL PROVISIONS

Art. 19. The Central Bank of Brazil, in the analysis of the processes referred to in this Resolution, considering the circumstances of each concrete case and the context of the facts, may exceptionally, and in the face of duly justified public interest, dispense with compliance with the requirements and conditions established for entering the status of controller of consortium administrators or for exercising executive positions.

Art. 20. The following must be communicated to the Central Bank of Brazil:

I - the assumption of the status of holder of qualified participation; and

II - the alteration of the executive position structure provided for in the bylaws or articles of association.

Sole Paragraph. In the case of the communication referred to in item I of the caput, the Central Bank of Brazil may:

I - require proof of compliance with the requirement set forth in item II of Art. 2, within sixty days of the communication; and

II - determine the unwinding or alienation of the qualified participation, examining the aspects of the operation and finding non-compliance with the regulations.

Art. 21. The provisions of Chapter VII of this Resolution apply, to the extent applicable, to associations and non-profit civil entities authorized to administer consortium groups, in view of the terms of Art. 46 of Law No. 11,795, of October 8, 2008.

Art. 22. The provisions of this Resolution apply to authorization requests filed with the Central Bank of Brazil from the entry into force of this normative act.

CHAPTER IX

FINAL PROVISIONS

Art. 23. This Resolution enters into force on July 1, 2023.

Otávio Ribeiro Damaso
Director of Regulation