Central Bank Resolution No. 400 — Guidelines for Establishing the Open Finance Governance Structure

RESOLUTION
BCB NO. 400, OF JULY 4, 2024

Sets forth the guidelines for establishing the Open Finance Governance Structure.

The Collegiate Board of the Central Bank of Brazil, in a session held on June 20, 2024, based on the provisions of arts. 9, 10, caput, items VI and IX, and 11, caput, item VII, of Law No. 4,595, of December 31, 1964, 15 of Law No. 12,865, of October 9, 2013, and considering the provisions of arts. 44, § 1, 51, caput, item XI, of Joint Resolution No. 1, of May 4, 2020,

R E S O L V E:

CHAPTER I
PURPOSE

Art. 1. This Resolution sets forth the guidelines for establishing the Open Finance Governance Structure, as referred to in art. 44, § 1, of Joint Resolution No. 1, of May 4, 2020.

§ 1. The start of operations of the Open Finance Governance Structure must occur by January 2, 2025.

§ 2. The documentation regarding the formalization of the Open Finance Governance Structure, its articles of incorporation or bylaws, and its policies, as referred to in this Resolution, must be made available to the Central Bank of Brazil.

CHAPTER II
GENERAL ASPECTS OF THE GOVERNANCE STRUCTURE

Section I
Documentation of the Open Finance Governance Structure

Art. 2. The Open Finance Governance Structure must draft articles of incorporation or bylaws and internal regulations, such as internal rules, policies, codes, and other documents necessary for its adequate functioning, aligned with best practices in governance and management, with the objectives of Open Finance, as provided in art. 3 of Joint Resolution No. 1, of May 4, 2020, and with the purposes set forth in art. 44, § 1, of the aforementioned joint resolution.

Sole paragraph. The Open Finance Governance Structure must maintain an active transparency policy, disclosing to the public in an accessible and free manner the documents referred to in the caput, except for those that are not in the public interest or that have a confidential nature.

Art. 3. The Open Finance Governance Structure must promote periodic audits of its performance.

§ 1. The audit activity referred to in the caput must provide the necessary conditions for the independent, autonomous, and impartial evaluation of the quality and effectiveness of the services and systems necessary to comply with the convention referred to in art. 44 of Joint Resolution No. 1, of May 4, 2020.

§ 2. The Central Bank of Brazil may:

I - define the scope or determine changes in the audit work plan referred to in the caput; and

II - determine the review of the results of the aforementioned audit, if it considers that the conditions set forth in § 1 were not met.

Section II
Composition of the Open Finance Governance Structure

Art. 4. The Open Finance Governance Structure must be composed of, at minimum, the following bodies:

I - governance body;

II - senior management body; and

III - board of directors.

Sole paragraph. In its decision-making, the bodies referred to in the caput must ensure:

I - the representativeness and plurality of participating institutions and segments;

II - non-discriminatory access for participating institutions;

III - the mitigation of conflicts of interest; and

IV - the sustainability of Open Finance.

CHAPTER III
GOVERNANCE BODY

Section I
Powers of the Governance Body

Art. 5. The competence of the governance body, exercised by means that ensure the participation and vote of all participants in the Open Finance Governance Structure, must cover the following topics, without prejudice to others required by legislation or defined by the participants:

I - review and approval of accounts, financial statements, and management reports;

II - amendment of the articles of incorporation or bylaws; and

III - dismissal of the members of the board of directors, referred to in art. 13, and of the senior management body referred to in art. 8, caput, item I.

§ 1. The articles of incorporation or bylaws of the Open Finance Governance Structure must provide that amendments to its content require an approval quorum of 4/5 (four-fifths) of the total possible votes, calculated in accordance with art. 6, except for amendments resulting from legal or regulatory imposition, which may be approved by simple majority.

§ 2. The definition of topics to be subject to deliberation by the governance body must respect the powers of the other bodies comprising the Open Finance Governance Structure.

Section II
Participation in the Governance Body

Art. 6. The number of votes to which each institution is entitled in the decisions of the governance body must be proportional to its participation in the funding of the Open Finance Governance Structure, according to parameters fixed and updated by the Central Bank of Brazil.

Sole paragraph. The number of votes mentioned in the caput is limited to the equivalent of 3% (three percent) of the funding of the Open Finance Governance Structure.

CHAPTER IV
SENIOR MANAGEMENT BODY

Section I
Powers of the Senior Management Body

Art. 7. The competence of the senior management body must cover, at minimum:

I - deliberation on matters proposed by the board of directors, excluding those within the competence of the governance body;

II - review and submission to the governance body of proposals to amend the articles of incorporation or bylaws of the Open Finance Governance Structure;

III - approval of the annual budget and any changes during the fiscal year;

IV - election of the members of the board of directors and proposal of their dismissal to the governance body;

V - definition of the powers and levels of authority of the board of directors members, observing the provisions of art. 11;

VI - election and dismissal of its independent members;

VII - definition of technical committees, subordinate to the board of directors, fixing their competence and composition;

VIII - approval of proposals regarding technological standards, operational procedures, expansion, revision or change of scope of data and services, and implementation deadlines; and

IX - forwarding to the Central Bank of Brazil all documents approved by the governance body or the senior management body that impact or may impact Open Finance or its participants.

§ 1. The articles of incorporation or bylaws of the Open Finance Governance Structure must provide that proposals approved in accordance with item VIII of the caput will have their effectiveness conditioned upon approval by the Central Bank of Brazil.

§ 2. The Central Bank of Brazil must be notified of the non-approval of proposals regarding the subjects set forth in items II, III, and VIII of the caput.

§ 3. In the composition of the technical committees referred to in item VII of the caput, the participation of representatives of participating institutions of Open Finance or other natural or legal persons whose business activity is directly related to the topics under discussion must be enabled, without prejudice to any eventual quantitative limit on members, aiming to ensure the adequate performance of their activities.

Section II
Composition of the Senior Management Body

Art. 8. The senior management body of the Open Finance Governance Structure must be composed of ten members with voting rights, being:

I - eight representatives of categories indicated by representative entities of the institutions participating in Open Finance, according to the composition defined below:

a) Segment 1 – S1 and Segment 2 – S2;

b) Segment 3 – S3, Segment 4 – S4, and Segment 5 – S5, excluding credit cooperatives, payment institutions, direct lending companies – SCD, and peer-to-peer lending companies – SEP;

c) credit cooperatives;

d) payment institutions acting as acquirers classified in S1 or S2 or controlled by institutions classified in S1 or S2;

e) payment institutions acting as acquirers not classified in S1 or S2;

f) payment institutions initiating payment transactions;

g) payment institutions holding accounts; and

h) SCD and SEP; and

II - two independent members.

§ 1. The articles of incorporation or bylaws of the Open Finance Governance Structure must provide, as eligibility requirements to integrate the senior management body, at minimum:

I - not being prohibited by special law, nor convicted of bankruptcy fraud, tax evasion, prevarication, 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 offices; and

II - not being declared ineligible or suspended from exercising positions of fiscal councilor, administration councilor, director, or managing partner in a financial institution, payment institution, other institutions authorized to operate by the Central Bank of Brazil, supplementary pension entities, insurance companies, capitalization companies, publicly held companies, or entities subject to supervision by the Securities and Exchange Commission.

§ 2. The Central Bank of Brazil will publish the list of representative entities of the institutions participating in Open Finance, as referred to in item I of the caput, based on the following criteria and after contributions from participating institutions:

I - result of the election for the indication of members of the Deliberative Council of the initial structure responsible for the governance of Open Finance, in accordance with art. 8 of the Regulation annexed to Circular No. 4,032, of June 23, 2020, and Communication No. 35,922, of July 10, 2020;

II - frequency of participation, diversity, and relevance of the positions taken by the representatives indicated by the associations in the Deliberative Council and Technical Groups of the initial structure responsible for the governance of Open Finance; and

III - emergence of new categories of participating institutions of Open Finance, which require representation in the Governance Structure.

Art. 9. The election of the independent members of the senior management body must occur through a procedure that ensures the assessment of the candidates' capacity to meet, at minimum, the following eligibility requirements for the position:

I - academic background compatible with the function, with proven experience in the financial and information technology areas, as well as knowledge of Open Finance regulation and the structure of the National Financial System;

II - absence of affiliation with a participating institution of Open Finance or with the representative entity responsible for indicating the members referred to in art. 8, caput, item I, in the twelve months preceding their indication; and

III - compliance with the requirements set forth in art. 8, § 1.

§ 1. The following situations must be considered affiliations that disqualify eligibility as referred to in item II of the caput:

I - being an administrator or controller of a participating institution of Open Finance, its direct or indirect holding company, or a subsidiary or company under common direct or indirect control;

II - being an administrator or person authorized to hold a position in a statutory or contractual body of a participating institution of Open Finance or of the representative entity responsible for indicating the members referred to in art. 8, caput, item I;

III - holding a qualified participation in the capital of a participating institution of Open Finance, in accordance with the regulation governing the authorization processes related to the operation of financial institutions and other institutions authorized to operate by the Central Bank of Brazil;

IV - maintaining an employment relationship or resulting from a permanent professional services contract with a participating institution of Open Finance or with the representative entity responsible for indicating the members referred to in art. 8, caput, item I; and

V - being a spouse, partner, or relative up to the second degree of persons covered by items I to IV.

§ 2. The independent members of the senior management body must perform their activities in favor of competition, innovation, data security and privacy, as well as consumer protection, with a balance between public interest and private interests.

Art. 10. The articles of incorporation or bylaws of the Governance Structure must provide that the dismissal of an independent member:

I - occurs through a process that ensures due process and the right to a full defense; and

II - is limited to specific situations, including non-compliance with internal rules, positions contrary to the objectives set forth in art. 9, § 2, and subsequent loss of conditions to hold the office.

Section III
Deliberations of the Senior Management Body

Art. 11. The decisions of the senior management body must be taken by a simple majority of votes of the members present, disregarding any abstentions.

Sole paragraph. For the purposes of the provision in the caput, it must be observed that:

I - the member referred to in art. 8, caput, item I, letter “a”, is entitled to two votes; and

II - the other members referred to in art. 8 are entitled to one vote each.

CHAPTER V
BOARD OF DIRECTORS

Section I
Powers of the Board of Directors

Art. 12. The competence of the board of directors must cover, at minimum:

I - administer, manage, and direct the Open Finance Governance Structure;

II - submit to the senior management body the proposal for the annual budget and any changes during the fiscal year;

III - promote the relationship of the Open Finance Governance Structure with competent authorities, press agencies, and other interested parties in the activities of the Open Finance Governance Structure;

IV - monitor and evaluate the performance of participating institutions of Open Finance and the services provided by the Open Finance Governance Structure;

V - define internal regulations necessary for the functioning of the Open Finance Governance Structure, observing the powers of the other bodies, as provided in arts. 5 and 7;

VI - plan, coordinate, and develop internal communication actions of the Open Finance Governance Structure and with participating institutions of Open Finance;

VII - draft and submit to the senior management body proposals regarding technological standards, operational procedures, expansion, revision or change of scope of data and services, and implementation deadlines;

VIII - coordinate and operationalize the technical committees, promoting the articulation of activities related to the performance of the various committees constituted in accordance with art. 7, caput, item VII;

IX - manage and coordinate the process to address demands within the responsibility of the Open Finance Governance Structure; and

X - manage the contracting and provision of legal consulting and advisory activities, as well as judicial and extrajudicial representation within the Open Finance Governance Structure.

Sole paragraph. For the purposes of the provision in the caput, it must be ensured that the board of directors and its members:

I - have technical and operational autonomy to exercise their powers;

II - act in favor of competition, innovation, data security and privacy, and consumer protection, with a balance between public interest and private interests; and

III - ensure compliance with best practices in human resource management and organizational culture, information technology, personal data protection, and risk management in the activities of the Open Finance Governance Structure, observing current legislation and regulations.

Section II
Composition of the Board of Directors

Art. 13. The board of directors of the Open Finance Governance Structure must be composed of directors designated by the senior management body, observing the provision of:

I - one president-director; and

II - other directors, whose powers will be defined by the senior management body.

Sole paragraph. The articles of incorporation or bylaws of the Open Finance Governance Structure must provide that the directors designated in accordance with the caput meet, at minimum, the following requirements:

I - reside in Brazil;

II - have an impeccable reputation, observing the criteria referred to in art. 8, § 1; and

III - possess qualifications compatible with the defined powers.

CHAPTER VI
MAINTENANCE COSTS OF THE GOVERNANCE STRUCTURE

Art. 14. The funding of the maintenance activities of the Open Finance Governance Structure by the participating institutions of Open Finance, specified in current regulation, must be defined according to the following criteria:

I - contribution by size of the participating institutions; and

II - prohibition of duplicate payments.

Sole paragraph. In the case of participating institutions of Open Finance that are part of a prudential conglomerate or a cooperative system, the definition referred to in item I of the caput must be for the respective prudential conglomerate or cooperative system.

Art. 15. Circular No. 4,032, of June 23, 2020, published in the Official Gazette of the Union on June 24, 2020, is hereby revoked.

Art. 16. This Resolution enters into force:

I - on January 2, 2025, regarding art. 15; and

II - on the date of its publication, regarding the other provisions.

OTÁVIO RIBEIRO DAMASO
Regulation Director