Circular No. 3765 — Regulates clearing and settlement of electronic debit and credit orders and interoperability within Payment Arrangements of the Brazilian Payments System

The Collegiate Board of the Central Bank of Brazil, in a session held on September 22, 2015, based on arts. 10 of Law No. 10,214, of March 27, 2001, 5th, item I, and 11 of Resolution No. 2,882, of August 30, 2001, 6th, item III, letter “h”, 9th, items I, II and X, and 15 of Law No. 12,865, of October 9, 2013, and having in view the provisions of Resolution No. 4,282, of November 4, 2013,

R E S O L V E:

Art. 1º The § 2º of art. 2º of Circular No. 3,682, of November 4, 2013, shall enter into force with the following wording:

“§ 2º The values referred to in item II of the caput shall be reduced to 50% (fifty percent) on January 1, 2018 and to 10% (ten percent) on January 1, 2019.” (NR)

Art. 2º Art. 2º of the Regulation attached to Circular No. 3,682, of 2013, shall enter into force amended by the addition of the following item VII:

“VII - host institution: financial institution or payment institution, participant of the payment arrangement, holder of a checking or payment account chosen by the end-user payee for the ordinary credit of its authorized receipts within the scope of the payment arrangement.” (NR)

Art. 3º Art. 11 of the Regulation attached to Circular No. 3,682, of 2013, shall enter into force with the following wording:

“Art. 11. Payment institutions, financial institutions, network service providers, and host institutions become participants when they adhere to a payment arrangement.

Sole paragraph. The host institution referred to in the caput may be exempted from participating in the arrangement in cases where:

I - the arrangement issuer demonstrates that it can comply with all obligations regulated in this regulation regarding these institutions; and

II - the arrangement rules guarantee that there is no discrimination regarding the institutions that may act as host institutions and that the maximum deadlines for making funds available for free movement by the end-user payee are met.” (NR)

Art. 4º Art. 15 of the Regulation attached to Circular No. 3,682, of 2013, shall enter into force with the following wording:

“Art. 15. The provisions of this Section do not apply to the activities described in item I of art. 2º of this regulation that, within closed arrangements, must be carried out exclusively by its issuer, institutions controlled by the issuer, or controlling entities of the issuer, provided that:

I - the payment arrangement falls under the prepaid payment account modality;

II - the payment arrangement falls under the transfer modality and the settlement of payment transactions within the arrangement is carried out exclusively in the books of the instrument issuer; or

III - the total value of transactions accumulated in the last twelve months is less than R$20 billion (twenty billion reais).

§ 1º If the settlement of payment transactions ceases to be carried out exclusively in the books of the instrument issuer, as provided in item II, or if the value of transactions carried out within the scope of the payment arrangement exceeds the limit referred to in item III, its issuer must submit to the Central Bank of Brazil, within a period of up to thirty days counted from the alteration of the settlement method or the exceeding of the transaction value, a request for alteration in the arrangement’s regulation that contemplates the criteria for the participation of financial institutions or payment institutions in the modalities in which participation was restricted.

§ 2º The alterations in the arrangement regulation referred to in § 1º must contemplate the organizational and procedural restructuring, in order to ensure effective competition in all participation modalities within the arrangement, including with regard to regulated tariffs.” (NR)

Art. 5º Art. 17 of the Regulation attached to Circular No. 3,682, of 2013, shall enter into force with the following wording:

“Art. 17. ......

......

§ 4º The arrangement regulation must describe the execution of all activities that are carried out in the provision of the payment service regulated within the scope of the arrangement, encompassing the relationships and interactions between the various agents responsible for the various activities, even if these activities, within a closed arrangement, must be executed by the issuer itself, its controller(s) or controlled entity(ies).” (NR)

Art. 6º The Regulation attached to Circular No. 3,682, of 2013, shall enter into force amended by the addition of the following chapters VI and VII:

“CHAPTER VI

ON CLEARING AND SETTLEMENT WITHIN PAYMENT ARRANGEMENTS

Art. 25. This Chapter applies to payment arrangements integrated into the SPB, whose settlement between end-users implies fund transfers between different financial institutions or payment institutions.

Art. 26. The clearing and settlement of electronic credit or debit orders between financial institutions and/or payment institutions participating in the same payment arrangement integrated into the SPB must:

I - be carried out in a centralized manner, in a clearing and settlement system authorized to operate by the Central Bank of Brazil; and

II - encompass, in a single grid, the positions of all arrangement participants, covering the financial institutions or payment institutions that provide payment services directly to the end-users of the transaction.

§ 1º The clearing house or the clearing and settlement service provider that operates the system referred to in item I of the caput cannot carry out activity that competes with the payment services provided by the arrangement participants involved in the settlement grid, except in the case of a closed arrangement.

§ 2º Arrangements established by the Central Bank of Brazil that use systems operating with real-time gross settlement are exempted from item I of the caput.

§ 3º The positions of participants in the settlement system, referred to in item II of the caput, must still encompass, when applicable, the values relating to:

I - the advance payment of obligations to the end-user payee that originated in payment transactions authorized within the scope of the payment arrangement;

II - the settlement of the advance transaction referred to in item I directly to the creditor of that transaction;

III - the granting of credit carried out with end-user payees based on the expectation of financial flow from the receipts of payment transactions within the scope of the payment arrangement; and

IV - the settlement of credit operations referred to in item III directly to the creditor of that transaction.

§ 4º The settlement grid, referred to in item II of the caput, must encompass the information and financial flows necessary for the institution holding the checking or payment account of the end-user payee to credit directly into that user’s account the amounts due by virtue of the aforementioned settlement grid.

Art. 27. Arrangements that guarantee the end-user payee the settlement of accepted transactions, regardless of the default of any participant involved in the settlement process of these transactions, must encompass, in an effective and clear manner, the management of these payment failures by arrangement participants.

§ 1º The rules and procedures for failure management referred to in the caput must encompass the centralized management of participant failure risk within the scope of the settlement process regulated by the arrangement, in view of the safety, efficiency of the arrangement, as well as the guarantee of competition in participation.

§ 2º The rules and procedures for handling payment failures must be established in a manner to ensure the timely settlement of transactions on the payment date, preferably during the ordinary settlement grid.

§ 3º In the management of default, the arrangement may use the rules and procedures for handling these failures already defined in the regulation of the clearing and settlement system established in the arrangement.

CHAPTER VII

ON INTEROPERABILITY

Art. 28. Interoperability rules between arrangements or within the scope of the same arrangement must guarantee that the end-user can use a single checking or payment account to carry out payment transactions.

§ 1º Differentiation of treatment between payment transactions carried out within the scope of interoperability between participants of the same arrangement or between participants of distinct arrangements is prohibited.

§ 2º Differences between internal and interoperated transactions may be accepted by the Central Bank of Brazil due to differences in business models involved in the provision of payment services by the distinct arrangements integrated into the SPB.

Art. 29. The rules and procedures that regulate interoperability between arrangement participants (interoperability in transactions internal to the payment arrangement) must:

I - be contained in the payment arrangement regulation;

II - assign equal rights and duties to all participants that carry out the same activity within the arrangement, without provision of any form of discrimination of participants; and

III - encompass all existing relationships between the different participation modalities treated by the arrangement, from the financial institution or payment institution offering the payment service to the payer up to the financial institution or payment institution offering the checking or payment account of the final payee.

Art. 30. The rules and procedures defined in the agreements that govern interoperability between distinct payment arrangements (interoperability in transactions between arrangements) must:

I - be formalized in a contract signed between the issuers of the payment arrangements;

II - follow the principles listed in art. 7º of Law No. 12,865, of October 9, 2013, and the conditions provided in arts. 28 and 29 of this Regulation;

III - be compatible with the interoperability mechanisms provided in the regulations of each arrangement;

IV - establish that the duties and rights of each issuer and its participants must be compatible with the responsibilities attributed to payment arrangements by legislation;

V - allow the effective identification, by arrangement participants and end-users, of the risks involved;

VI - be non-discriminatory, such that interoperability contracts signed by payment arrangement issuers must observe similar conditions – whether technical or commercial – for similar situations, respecting the economic rationality of the operation and complying with the principles of proportionality and reasonableness; and

VII - guarantee that information necessary for the fulfillment of legal and regulatory responsibilities attributed to financial institutions and payment institutions involved is transmitted between the payment arrangements.

§ 1º The formalization of a contract, in the form of item I of the caput, is dispensed with in the case where payment arrangements have been established by the same issuer.

§ 2º In the case of § 1º, the interoperability rules and procedures must be formalized in appropriate documentation, which will be kept available to the Central Bank of Brazil by the issuer of these arrangements.

§ 3º It is prohibited to require the participation of a financial institution or payment institution in a specific payment arrangement as the sole form of interoperability with another payment arrangement of which this institution is a part or which has been established by it.

§ 4º The contract or document with the rules and procedures that regulate interoperability between arrangements must stipulate, in a clear and objective manner:

I - the rights and duties of the parties involved;

II - the participation modalities of each arrangement involved in the interoperability;

III - the responsibilities attributed to the issuers of payment arrangements; and

IV - the limitations imposed on payment arrangements by the Central Bank of Brazil.” (NR)

Art. 7º A period of 180 (one hundred and eighty) days is established, from the date of publication of this Circular, for the submission, by the issuers of payment arrangements integrated into the Brazilian Payments System, of alterations in their regulations with the objective of adapting them to the provisions of this Circular.

Art. 8º This Circular enters into force on the date of its publication.

Aldo Luiz Mendes
Director of Monetary Policy