CMN Resolution No. 2882 — Regulates the payments system and the clearing and settlement service providers that integrate it

RESOLUTION NO. 002882

Dispenses with the payments system and the clearing houses and settlement service providers that integrate it.

The CENTRAL BANK OF BRAZIL, in accordance with Article 9 of Law No. 4,595 of December 31, 1964, makes public that the NATIONAL MONETARY COUNCIL, in a session held on August 30, 2001, taking into account the provisions of Articles 4, item VIII, and 11, item VII, of the aforementioned law, Articles 3, items I, III, IV, and the sole paragraph, and 15, item VI and paragraphs 2 and 3, of Law No. 6,385 of December 7, 1976, and Law No. 10,214 of March 27, 2001,

RESOLVED:

Article 1. Establish that the payments system must be structured according to principles that ensure its efficiency, security, integrity, and reliability.

Article 2. The provisions of this Resolution apply to clearing houses and settlement service providers that operate any of the systems integrating the payments system, whose operation:

I - results in interbank movements; and

II - involves at least three direct participants for settlement purposes, among financial institutions or other institutions authorized to operate by the Central Bank of Brazil.

Sole Paragraph. For the purposes of this Resolution, it is considered:

I - clearing and settlement house: a legal entity that primarily exercises the activity referred to in the caput;

II - settlement service provider: a legal entity that exercises the activity referred to in the caput on an accessory basis;

III - direct participant for settlement purposes: a legal entity that assumes the position of contracting party for settlement purposes, within the scope of the system integrating the payments system, before the clearing house or the settlement service provider or another direct participant;

IV - indirect participant for settlement purposes: a legal entity, with access to a system integrating the payments system, whose operations are settled through a direct participant.

Article 3. The following general rules, applicable by the Central Bank of Brazil, which will consider, for this purpose, the specificities of each of the systems that integrate it, must be observed in the payments system:

I - participants must have access to clear and objective information, allowing them to identify the risks they incur in the systems they use;

II - rules and procedures must enable and encourage the management and containment of credit and liquidity risks, as well as clearly establish, for these purposes, the obligations of clearing houses and settlement service providers and participants;

III - the settlement of obligations, on an irrevocable and unconditional basis, in an account maintained at the Central Bank of Brazil, must occur as soon as possible, on the day for which it is stipulated;

IV - the registration of the traded asset and the effective execution of the corresponding payment must be mutually conditioned;

V - clearing houses and settlement service providers must, at a minimum, ensure, in the event of participant default, the timely settlement of obligations in an amount equivalent to the largest netted debtor position determined in them, excluding issuer risk;

VI - the operational infrastructure of clearing houses and settlement service providers must have an adequate level of security and reliability, possessing contingency and recovery plans capable of ensuring processing within the settlement cycle itself;

VII - the means and procedures for the settlement of obligations must satisfy the needs of users and be economically efficient;

VIII - the criteria for access to systems must be public, objective, and clear, allowing broad participation, with restrictions admitted, primarily, focused on risk containment; and

IX - the organizational and administrative structure of clearing houses and settlement service providers must be effective and transparent, in a manner that allows, among other things, the evaluation of the performance of administrators and contemplates the interests of participants.

Article 4. The Central Bank of Brazil will act to promote the solidity, normal functioning, and continuous improvement of the payments system, in accordance with the provisions of this Resolution.

Article 5. With a view to the adequacy of clearing houses and settlement service providers to the values, principles, and rules applicable to the payments system, the Central Bank of Brazil must:

I - regulate their activities;

II - authorize the operation of their systems;

III - exercise supervision of their activities, observing, with respect to the application of penalties, the provisions of Resolution No. 1,065 of December 5, 1985, as amended by Resolution No. 2,228 of December 20, 1995.

Paragraph 1. The regulation referred to in item I may include differentiated rules for clearing houses and settlement service providers considered systemically important by the Central Bank of Brazil.

Paragraph 2. The supervision referred to in item III includes, where applicable, the Central Bank of Brazil's access to documents and information it deems necessary to evaluate compliance, with the legislation and regulations in force, of services related to the settlement process, provided by third parties that have an operational link with the clearing house or settlement service provider.

Article 6. With regard to clearing houses and settlement service providers, the Securities and Exchange Commission (CVM) is responsible, with respect to securities transactions:

I - to regulate their activities;

II - to authorize the operation of their systems; and

III - to exercise supervision of their activities, observing, with respect to the application of penalties, the provisions of Article 11 of Law No. 6,385 of December 7, 1976.

Paragraph 1. In addition to the regulation, authorization, and supervision referred to in items I to III, the clearing houses and settlement service providers referred to in the caput are subject to authorization for operation and supervision of their systems by the Central Bank of Brazil, which has the exclusive authority to analyze aspects related to the risk to the solidity and normal functioning of the National Financial System.

Paragraph 2. The provisions of the preceding paragraph apply to clearing houses and settlement service providers already authorized by the Securities and Exchange Commission (CVM) as of the date of entry into force of this Resolution.

Article 7. The financial statements of clearing houses and settlement service providers, including the explanatory notes required by the current legal and regulatory standards, must be examined by an independent auditor, in accordance with Resolution No. 2,267 of March 29, 1996, and complementary regulation.

Article 8. The requirements regarding the implementation of internal control systems referred to in Resolution No. 2,554 of September 24, 1998, apply to clearing houses and settlement service providers.

Article 9. The Central Bank of Brazil will operate, exclusively, systems with real-time gross settlement.

Article 10. The Central Bank of Brazil is authorized to:

I - regulate the electronic exchange of messages in the payments system;

II - establish a deadline for the adequacy of clearing houses and settlement service providers to the provisions of this Resolution.

Article 11. The Central Bank of Brazil and the Securities and Exchange Commission (CVM), within their respective areas of competence, are authorized to issue complementary norms and adopt the measures they deem necessary to comply with the provisions of this Resolution, including establishing conditions for changes in system regulations.

Article 12. This Resolution enters into force on the date of its publication, except for Article 9, which will enter into force on the date of the start of the new payments system, to be established by the Central Bank of Brazil.

Brasília, August 30, 2001

Ilan Goldfajn
Interim President