Circular No. 4016 — Regulates the Bookkeeping of Book-Entry Promissory Notes, the Electronic Bookkeeping System, and the Centralized Registration, Deposit, and Negotiation of These Credit Instruments

The Collegiate Board of the Central Bank of Brazil, in an extraordinary session held on May 4, 2020, based on Article 9 of Law No. 4,595 of December 31, 1964, Article 28, item II, of Law No. 12,810 of May 15, 2013, Article 3, paragraph 1, Article 4, paragraph 2, and Article 11 of Law No. 13,775 of December 20, 2018, combined with the provisions of Decree No. 9,769 of April 16, 2019, and in view of Resolution No. 4,815 of May 4, 2020,

RESOLVES:

CHAPTER I

OF THE OBJECT

Article 1. This Circular regulates the activity of bookkeeping of book-entry promissory notes (duplicatas escriturais), the electronic bookkeeping system managed by an entity authorized to exercise this activity, and the centralized registration or deposit and negotiation of these book-entry credit instruments.

CHAPTER II

OF DEFINITIONS

Article 2. For the purposes of this Circular, the following are considered:

I - bookkeeper: an entity authorized to carry out the activity of bookkeeping of book-entry promissory notes through the electronic bookkeeping system referred to in Law No. 13,775 of December 20, 2018;

II - clearing institution: a financial or payment institution contracted by the bookkeeper to act in the collection and routing stages referred to in Article 9;

III - book-entry promissory note discount operations: operations involving the definitive transfer of book-entry promissory notes or units of promissory notes, with or without co-obligation, by means of endorsement, assignment, or other contractual instrument;

IV - credit operations secured by book-entry promissory notes: credit operations, including the granting of an unconditional and unilateral non-cancelable credit limit by the financial institution, whose guarantees include book-entry promissory notes or units of promissory notes, transferred to the financial institution by means of fiduciary assignment, pledge, or other guarantee instrument;

V - negotiation of book-entry promissory notes: book-entry promissory note discount operations and credit operations secured by this asset;

VI - unit of promissory notes: a financial asset composed of book-entry promissory notes issued or to be issued, characterized by the same:

a) National Registry of Legal Entities (CNPJ) or Individual Taxpayer Registry (CPF) number of the drawer;

b) CNPJ or CPF number of the drawee of the promissory note; and

c) maturity date; and

VII - promissory note agenda: a set of units of promissory notes characterized by the same:

a) CNPJ or CPF number of the drawer; and

b) CNPJ or CPF number of the drawee.

CHAPTER III

OF THE ELECTRONIC BOOKKEEPING SYSTEM FOR BOOK-ENTRY PROMISSORY NOTES

Section I

Of Services and Operating Conditions

Article 3. The electronic bookkeeping system for book-entry promissory notes must provide, at a minimum, the offer of the following services related to the promissory notes bookkept through it:

I - issue the book-entry promissory note at the order of the drawer;

II - present the book-entry promissory notes to the drawees, including in the manner provided for in Article 6, enabling the collection of acceptance, its refusal with the respective reasons, and the practice of other exchange acts;

III - control payments related to book-entry promissory notes in the manner established in Section II of this Chapter;

IV - control and carry out the transfer of ownership of the book-entry promissory note;

V - carry out the centralized registration or deposit of the book-entry promissory note in a registration or centralized deposit system operated by a registrar or central depository entity authorized by the Central Bank of Brazil to exercise these activities, as well as include in its system information regarding encumbrances and burdens constituted on these titles in these infrastructures;

VI - enable the insertion of information, indications, and declarations related to operations carried out with book-entry promissory notes;

VII - issue statements and make available the stored information regarding book-entry promissory notes; and

VIII - interoperate with other electronic bookkeeping systems for book-entry promissory notes, as provided in Article 19.

Sole Paragraph. The bookkeeper must associate the book-entry promissory note with the electronic invoice (Nota Fiscal eletrônica) or another corresponding electronic fiscal document, upon the issuance of any of these fiscal documents.

Article 4. In the case of sale for payment in installments, book-entry promissory notes may only be issued in series, observing the provisions of Article 2, paragraph 3, of Law No. 5,474 of July 18, 1968, regarding their numbering.

Article 5. The bookkeeping contract for book-entry promissory notes entered into between the bookkeeper and the drawer must establish, among other clauses, that the drawer:

I - authorizes the bookkeeper to access fiscal documents, such as the electronic invoice, or another corresponding electronic fiscal document, associated with the book-entry promissory note to be issued;

II - agrees with the settlement procedures for the book-entry promissory note provided for in Section II of this Chapter;

III - agrees that the negotiation of merchant receivables constituted shall be carried out exclusively by means of the issuance of book-entry promissory notes, except for the receivables referred to in item I of Article 2 of Resolution No. 4,734 of June 27, 2019;

IV - agrees that the negotiation of merchant receivables to be constituted shall include express provision for the issuance of book-entry promissory notes upon the realization of the underlying commercial operations; and

V - provides the bookkeeper, the registrar entity, or the central depository responsible, respectively, for the bookkeeping, registration, or centralized deposit of book-entry promissory notes, with information regarding the contracts for the negotiation of book-entry promissory notes, regardless of the environment in which they are entered into.

§ 1. The contract may stipulate, at the discretion of the drawer, that the bookkeeper must carry out the automatic issuance of book-entry promissory notes related to electronic invoices or other corresponding electronic fiscal documents issued by the drawer.

§ 2. The sending of the information referred to in item V of the caput may be done directly by the drawer, or indirectly, through its counterparty in the negotiation of book-entry promissory notes or the negotiation environment for these promissory notes.

Article 6. Bookkeepers must adopt interoperability mechanisms that enable drawees to have centralized access to, at a minimum, the following services related to book-entry promissory notes issued against them, regardless of the bookkeeper responsible for their bookkeeping:

I - viewing information about book-entry promissory notes, including:

a) exchange acts and commercial annotations;

b) ownership, encumbrances, and burdens constituted;

c) data for payment of the promissory note; and

d) financial settlement status of the promissory note; and

II - inclusion of information in the electronic bookkeeping system regarding:

a) acceptance or refusal of the title with the respective reasons and other information related to the underlying commercial operations of the promissory notes; and

b) financial settlement of book-entry promissory notes carried out by the drawee.

§ 1. Bookkeepers must make available to drawees the services referred to in the caput via electronic interface, internet, mobile applications, or through their integration with computerized systems:

I - of the bookkeepers;

II - of the drawees; or

III - of financial and payment institutions.

§ 2. Bookkeepers are prohibited from charging fees to drawees for the activities described in items I and II of the caput.

Article 7. The electronic bookkeeping system for book-entry promissory notes must observe the following operating guidelines:

I - clear, transparent, secure, and efficient management, considering the stability of the financial system and the interests of system users;

II - formalization of internal policies that enable the identification and management of the various types of risks to which the bookkeeping system is subject;

III - existence of operational reliability levels compatible with the needs of its users, mainly regarding availability and business continuity, and security and confidentiality of the information it handles;

IV - care for the quality of the information on which the promissory notes are based;

V - fair and open access to its services, based on objective, public, and risk-management-appropriate criteria;

VI - adoption of communication standards that facilitate its integration with other bookkeeping systems and with its users' systems; and

VII - formalization of clear rules and procedures that enable its users to precisely understand their rights and duties, as well as those of the bookkeeper, and also the fees, costs, and risks resulting from their participation in the system.

Section II

Of the Financial Settlement of the Book-Entry Promissory Note

Article 8. The financial settlement of the book-entry promissory note in favor of its respective holders or beneficiaries of guarantees constituted on these titles must be carried out directly by the settlement system associated with the payment instrument used by the drawee, in the event that:

I - the payment instrument identifies, in its informational content, the promissory notes being settled; and

II - the settlement flow associated with the payment instrument includes the capture, in the bookkeeping systems, of the information of the holders of the promissory notes or their beneficiaries and the destination accounts of the paid resources.

Article 9. In the event of the drawee using a payment instrument that does not meet the conditions referred to in items I and II of Article 8, the financial settlement of the book-entry promissory note must be carried out in two stages:

I - collection stage: corresponds to the sending to the respective bookkeepers, by the drawee, of the amounts due and information regarding the book-entry promissory notes settled by him; and

II - routing stage: corresponds to the delivery, by the bookkeeper, of the amounts collected in the stage referred to in item I to the respective holders or beneficiaries of guarantees constituted on these titles.

§ 1. Bookkeepers must maintain one or more accounts in clearing institutions to receive the resources paid by the drawee in the collection stage, and to subsequently route these resources to the holders of the book-entry promissory notes in the next stage.

§ 2. The accounts of the bookkeepers in the clearing institutions referred to in § 1 must be exclusively used for the purpose of this paragraph.

§ 3. In the event that the payment instrument used by the drawee in the collection stage does not identify, in its informational content, the book-entry promissory notes being settled, this identification must be carried out by the respective bookkeepers, conditioned to the sending, by the drawee, of the necessary information to the bookkeeping systems, within one business day after the payment is made.

Article 10. The routing stage referred to in item II of Article 9 must be carried out by the bookkeepers through their clearing institutions, and the collected resources must be routed to the financial or payment institutions holding the accounts of the holders of the book-entry promissory notes or the beneficiaries of guarantees constituted on these titles, indicated in the contracts for the negotiation of these promissory notes.

§ 1. The routing of resources referred to in the caput must be carried out:

I - regarding resources collected by clearing institutions until 1:00 PM, on the same day of their receipt; and

II - regarding resources collected by clearing institutions after 1:00 PM, by the next business day following their receipt.

§ 2. Resources for which it is not possible for the bookkeeper to identify the destination accounts must be returned to the respective paying drawees, on the first business day after the deadlines referred to in items I and II of § 1.

CHAPTER IV

OF THE AUTHORIZATION FOR THE EXERCISE OF THE BOOK-ENTRY PROMISSORY NOTE BOOKKEEPING ACTIVITY

Article 11. The exercise of the book-entry promissory note bookkeeping activity depends on prior authorization from the Central Bank of Brazil, which will be granted to the requesting entity after meeting the necessary requirements.

Article 12. Only entities authorized to carry out the activity of registration or centralized deposit of financial assets may exercise the book-entry promissory note bookkeeping activity.

Article 13. The authorization to exercise the book-entry promissory note bookkeeping activity will be granted to the entity that meets the following requirements:

I - in the case of a registrar entity, prove additional net worth of R$5,000,000.00 (five million reais) relative to the minimum net worth required for the activity of registering financial assets;

II - indicate a director responsible for the bookkeeping system;

III - present manuals and regulations that govern rules, forms, and procedures related to the services provided and the operating guidelines referred to in this Circular, including the aspects to be established in a convention, as provided in Chapter VII; and

IV - prove operational capacity to provide the services and meet the operating conditions referred to in Chapter III, Section I.

CHAPTER V

OF THE REGISTRATION, CENTRALIZED DEPOSIT, AND NEGOTIATION OF BOOK-ENTRY PROMISSORY NOTES

Article 14. The bookkeeper must carry out the registration or centralized deposit, respectively in a registration or centralized deposit system, of the book-entry promissory notes issued through its bookkeeping system on the same day of their issuance.

Sole Paragraph. The promissory note must be registered or deposited individually, with the identification of the unit of promissory notes to which it belongs.

Article 15. Information regarding the acts or contracts for the negotiation of book-entry promissory notes sent to the bookkeeper or to the registration or centralized deposit system must be reproduced in both systems, including regarding the constitution of encumbrances and burdens, when applicable.

Article 16. The negotiation of a book-entry promissory note implies a change, in favor of the beneficiary of the operation, in the bookkeeping system and in the registration or centralized deposit system, of its ownership, or the constitution of encumbrances and burdens on it.

Article 17. For the negotiation of merchant receivables to be constituted involving the future issuance of book-entry promissory notes, the acts or contracts for negotiation must specify the units of promissory notes that are the object of the negotiation.

Sole Paragraph. The negotiation of a unit of promissory notes must result, in favor of the beneficiary of the operation, in the bookkeeping system and in the registration or centralized deposit system:

I - the change of ownership of the book-entry promissory notes issued belonging to this unit or the constitution of encumbrances and burdens on them, provided they are available for negotiation; and

II - the change of ownership of the book-entry promissory notes to be issued belonging to this unit or the constitution of encumbrances and burdens on them, upon their issuance.

CHAPTER VI

OF THE DUTIES OF THE REGISTRATION AND CENTRALIZED DEPOSIT SYSTEMS AND OF INTEROPERABILITY

Section I

Of the Duties of the Registration and Centralized Deposit Systems

Article 18. Regarding book-entry promissory notes, the registration and centralized deposit systems must enable:

I - the reception and processing of information regarding book-entry promissory notes sent by bookkeepers for the purpose of registration or centralized deposit;

II - the reception of information regarding the acts or contracts for the negotiation of book-entry promissory notes referred to in Article 15 for forwarding to the electronic bookkeeping system;

III - the making available, to its participants, of information regarding promissory note agendas, provided authorization is given by the respective drawers; and

IV - the acceptance of the command to constitute encumbrances and burdens on book-entry promissory notes and units of promissory notes, in accordance with the provisions of the negotiation contracts.

Sole Paragraph. The promissory note agendas referred to in item III of the caput must contain, at a minimum:

I - the individualized information of each unsettled book-entry promissory note belonging to the agenda, including the existence of contract effects on it;

II - information regarding the units of promissory notes that have been the object of negotiation; and

III - the payment history of the settled promissory notes belonging to the agenda.

Section II

Of Interoperability Between the Registration, Centralized Deposit, and Bookkeeping Systems

Article 19. The registration, centralized deposit, and bookkeeping systems for book-entry promissory notes must contain interoperability mechanisms that enable, through compatible rules, procedures, and technologies:

I - to verify the uniqueness of the registration or centralized deposit and the bookkeeping of book-entry promissory notes;

II - to exchange information regarding promissory note agendas necessary for compliance with their obligations towards participants;

III - to exchange information regarding the acts or contracts for negotiation of promissory notes necessary for compliance with their obligations towards participants;

IV - to carry out the portability of the registration or centralized deposit and the bookkeeping of book-entry promissory notes between registration or centralized deposit systems and between book-entry promissory note bookkeeping systems; and

V - to exchange other information necessary for compliance with their obligations towards participants, to be established in the convention referred to in Chapter VII.

CHAPTER VII

OF THE CONVENTION

Article 20. For the purposes of carrying out the bookkeeping, registration, or centralized deposit of book-entry promissory notes, entities authorized to carry out the activity of registration or centralized deposit of promissory notes or that are in the process of authorization for these activities on the date of entry into force of this Circular must celebrate a convention, in a formalized instrument, in which must be included, among other aspects necessary for compliance with the provisions of legislation and regulation, the definition:

I - of file layouts, messages, or other forms of communication, as well as operational procedures, to be used for:

a) the provision of interoperability services between the registration systems, central depositories, and bookkeeping systems mentioned in Article 19; and

b) the exchange of information with settlement systems or with participants of these systems, in the event of the settlement modality referred to in Article 8, for the purposes of:

1. sending information regarding the accounts of holders or beneficiaries of guarantees constituted on the book-entry promissory notes; and

2. receiving confirmation of payment of the book-entry promissory notes;

II - of the minimum informational content of files, messages, or other forms of communication, to be used by bookkeepers, registration, and centralized deposit systems to exchange information with other participants in the bookkeeping or negotiation process of book-entry promissory notes, such as drawers, drawees, and financing agents;

III - of the procedure for authorization by the drawer to make available information regarding promissory note agendas referred to in item III of Article 18; and

IV - of the parameters of the acts or contracts for negotiation regarding the specification of the book-entry promissory notes or units of promissory notes that are the object of these operations;

V - of the hours for the exchange of information between the participants involved;

VI - of the interoperability fee structure;

VII - of the terms of adherence and denunciation to the convention; and

VIII - of the rights and obligations of the convention participants.

§ 1. The discussion of the aspects referred to in item "b" of item I of the caput must include the participation of the respective operators of the settlement systems, and a specific schedule must be established within the scope of the convention for the definition of these aspects and their implementation.

§ 2. It is optional for bookkeepers, registrar entities, and central depositories to include informational content of optional filling by their participants, in addition to that referred to in item II of the caput, provided that this additional content does not offer obstacles to the realization of the interoperability procedures referred to in Article 19.

§ 3. The discussion of the aspects referred to in item IV of the caput must involve the national representative associations of financial institutions and credit rights investment funds.

§ 4. The fee structure referred to in item VI of the caput must observe isonomic and transparent criteria and be defined based on economic foundations that justify any differences in the values of interoperability services.

§ 5. Registrar entities or central depositories that did not participate in the elaboration of the convention must accept the terms of the convention in order to carry out the activities of registration, centralized deposit, or bookkeeping of book-entry promissory notes.

§ 6. The rights and obligations established in the convention must bind registrar entities and central depositories subject to the convention unconditionally and uniformly, without any form of discrimination.

Article 21. It is optional for other entities authorized to carry out the activity of registration or centralized deposit of financial assets or that are in the process of authorization on the date of entry into force of this Circular to participate in the convention referred to in Article 20, provided that these entities formalize, with the Central Bank of Brazil, within ten days after the date of entry into force of this Circular, the communication of the intention to carry out the activity of registration or centralized deposit of promissory notes.

Article 22. The convention referred to in Article 20 must establish the exclusion of the signatory that comes to have:

I - its request for authorization to exercise the activity of registration or centralized deposit of promissory notes denied by the Central Bank of Brazil; or

II - its authorization revoked or canceled by the Central Bank of Brazil.

Article 23. The Central Bank of Brazil will participate in the process of elaborating the convention referred to in Article 20.

§ 1. Registrar entities and central depositories must periodically or upon request send reports to the Central Bank of Brazil on the progress of discussions regarding the aspects to be agreed upon.

§ 2. The convention instrument must be submitted for approval by the Central Bank of Brazil, within a period of up to 120 days counted from the date of entry into force of this Circular.

§ 3. The definition of the aspects referred to in item "b" of item I of Article 20 is not subject to the deadline mentioned in § 2, and will be subject to the schedule mentioned in § 1 of Article 20.

§ 4. Subsequent alterations to the approved content of the convention must be reported to the Central Bank of Brazil before their entry into force, without the need for prior authorization, but subject to denial or determination of adjustments within thirty days from the receipt of the information.

CHAPTER VIII

TRANSITORY AND FINAL PROVISIONS

Article 24. Convention participants that come to carry out the activity of bookkeeping, registration, or deposit of book-entry promissory notes must be operationally capable of exercising these activities, including regarding interoperability, within 180 days counted from the approval, by the Central Bank of Brazil, of the convention referred to in Article 20.

Article 25. This Circular enters into force on June 1, 2020.

Otávio Rib