CMN Resolution No. 3849 — Establishes the organizational component of an ombudsman for financial institutions and other entities authorized by the Central Bank of Brazil

RESOLUTION NO. 003849

Dispenses on the establishment of an organizational component of an ombudsman by financial institutions and other institutions authorized to operate by the Central Bank of Brazil.

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 March 25, 2010, based on Article 4, item VIII, of the aforementioned law,

R E S O L V E D:

Art. 1. Financial institutions and other institutions authorized to operate by the Central Bank of Brazil that have individual or legal entity clients classified as micro-enterprises under specific legislation must establish an organizational component of an ombudsman, with the responsibility to act as a communication channel between these institutions and the clients and users of their products and services, including in conflict mediation.

§ 1. The structure of the organizational component must be compatible with the nature and complexity of the products, services, activities, processes, and systems of each institution.

§ 2. The institutions referred to in the caput must:

I - provide wide publicity regarding the existence of the ombudsman, as well as complete information about its purpose and method of use;

II - guarantee free access for clients and users of products and services to the ombudsman's service, through agile and effective channels; and

III - make available free telephone access, whose number must be:

a) published and kept updated in a visible location and format to the public within their premises and those of their correspondents in the country, as well as on their respective websites on the internet and in other communication channels used to disseminate the institution's products and services;

b) registered on statements, receipts, including electronic ones, contracts formalized with clients, advertising and promotional materials, and other documents intended for clients and users of the institution's products and services; and

c) registered and permanently kept updated in an information system, as established by the Central Bank of Brazil.

§ 3. The publicity referred to in § 2, item I, must also be provided through the communication channels used to disseminate the institution's products and services.

§ 4. The organizational component must be segregated from the unit executing the internal audit activity, as provided for in Article 2 of Resolution No. 2,554, of September 24, 1998, as amended by Resolution No. 3,056, of December 19, 2002.

§ 5. Commercial banks, multiple banks, savings banks, credit, financing, and investment companies, savings and loan associations, and leasing companies that carry out financial leasing operations must establish the organizational component of an ombudsman within the institution itself.

§ 6. Single credit cooperatives affiliated with a central cooperative may enter into an agreement with the respective central, confederation, or cooperative bank of the system, to share and use a single organizational component of an ombudsman maintained in one of these institutions.

§ 7. Single credit cooperatives not affiliated with a central cooperative may enter into an agreement with a central cooperative, or with a federation or confederation of credit cooperatives, or with an association representing the class, to share and use an ombudsman maintained in one of these institutions.

§ 8. Institutions not referred to in §§ 5, 6, and 7 may enter into an agreement with the class association to which they are affiliated or with the stock exchanges or commodity and futures exchanges in which they operate, to share and use the ombudsman maintained in one of these entities.

§ 9. Institutions that are part of a financial conglomerate may establish a unique organizational component that will act on behalf of all group members.

§ 10. Institutions referred to in the caput that are not part of a financial conglomerate may enter into an agreement with a non-financial linked company, as defined in Article 1, § 1, items I and III, of Resolution No. 2,107, of August 31, 1994, that has an ombudsman, to share and use the respective ombudsman.

§ 11. Commercial banks under direct control of commodity and futures exchanges that operate exclusively in the performance of functions as central liquidator and custodian of the transactions carried out, constituted in the form of Resolution No. 3,165, of January 29, 2004, are exempt from the requirement established in the caput.

§ 12. In the cases provided for in §§ 7 and 8, the agreement can only be made with a class association, or stock exchange, or commodity and futures exchange, or central cooperative, or federation or confederation of credit cooperatives that has effectively implemented code of ethics and/or self-regulation codes to which the institution has adhered.

Art. 2. The responsibilities of the ombudsman include:

I - receive, register, instruct, analyze, and give formal and adequate treatment to complaints from clients and users of products and services of the institutions referred to in the caput of Art. 1 that are not resolved by the usual service provided by their branches and any other service points;

II - provide necessary clarifications and inform complainants about the progress of their demands and the measures adopted;

III - inform complainants of the deadline for final response, which cannot exceed fifteen days, counted from the date of registration of the occurrence;

IV - send a conclusive response to the complainants' demand within the deadline informed in item III;

V - propose to the board of directors or, in their absence, to the management of the institution corrective or improvement measures for procedures and routines, resulting from the analysis of received complaints; and

VI - prepare and send to internal audit, the audit committee, when it exists, and the board of directors or, in their absence, to the management of the institution, at the end of each semester, a quantitative and qualitative report on the performance of the ombudsman, containing the proposals referred to in item V.

§ 1. The service provided by the ombudsman to the clients and users of the products and services of the institutions referred to in the caput of Art. 1 must be identified by means of a service protocol number.

§ 2. The reports referred to in item VI must remain available to the Central Bank of Brazil for a minimum period of five years at the institution's headquarters.

Art. 3. The statute or articles of association of the institutions referred to in the caput of Art. 1 must expressly contain, among others, the following data:

I - the responsibilities of the ombudsman;

II - the criteria for appointment and removal of the ombudsman and the duration of their term; and

III - the express commitment of the institution to:

a) create adequate conditions for the functioning of the ombudsman, as well as for its performance to be guided by transparency, independence, impartiality, and neutrality; and

b) ensure the ombudsman's access to the information necessary for the preparation of adequate responses to received complaints, with full administrative support, being able to request information and documents for the exercise of its activities.

§ 1. The provisions of this article, according to the legal nature of the society, must be included in the statute or articles of association of the institution, in the first amendment that occurs after the creation of the ombudsman.

§ 2. Statutory or contractual amendments required by this resolution relating to institutions that opt for the option provided for in Art. 1, §§ 6 and 9, can only be promoted by the institution that constitutes the unique organizational component of an ombudsman.

§ 3. Institutions that do not establish their own ombudsman component due to the option provided for in Art. 1, §§ 6 to 10, must ratify such decision at the time of the first general assembly or the first meeting of the board of directors, after the formalization of the adoption of the option.

Art. 4. The institutions referred to in the caput of Art. 1 must designate to the Central Bank of Brazil the names of the ombudsman and the director responsible for the ombudsman.

§ 1. For the purpose of the designation referred to in the caput, the following provisions are established:

I - there is no prohibition for the director responsible for the ombudsman to perform other functions in the institution, except that of director of administration of third-party resources;

II - in the cases of commercial banks, multiple banks, savings banks, credit, financing, and investment companies, and savings and loan associations, the ombudsman cannot perform another activity in the institution, except that of director responsible for the ombudsman; and

III - in the event that the designation of the director responsible for the ombudsman and the ombudsman falls on the same person, this person cannot perform another activity in the institution.

§ 2. In the cases provided for in Art. 1, §§ 6 and 9, the ombudsman and the director responsible for the ombudsman will be responsible for all institutions that use the unique organizational component of an ombudsman and must integrate the staff of the institution that constitutes the ombudsman component.

§ 3. In the cases provided for in Art. 1, §§ 7, 8, and 10, the institutions must:

I - designate to the Central Bank of Brazil only the name of the director responsible for the ombudsman; and

II - inform the name of the ombudsman, which must be that of the ombudsman of the class association, stock exchange, or commodity and futures exchange, entity, or company that constitutes the ombudsman.

§ 4. Data relating to the director responsible for the ombudsman and the ombudsman must be inserted and kept updated in an information system, as established by the Central Bank of Brazil.

§ 5. The director responsible for the ombudsman must prepare a semi-annual report, in the form defined by the Central Bank of Brazil, regarding the activities of the ombudsman on the base dates of June 30 and December 31 and whenever a relevant occurrence is identified.

§ 6. The report referred to in § 5 must be:

I - reviewed by external audit, which must express an opinion on the quality and adequacy of the structure, systems, and procedures of the ombudsman, as well as on compliance with the other requirements established in this resolution, including in the cases provided for in Art. 1, §§ 7, 8, and 10;

II - appreciated by internal audit or the audit committee, when it exists;

III - sent to the Central Bank of Brazil, in the form and periodicity established by that Autarchy:

a) by institutions that have an audit committee, as well as by central credit cooperatives, confederations, and cooperative banks that have established a unique organizational component to act on behalf of the respective single credit cooperatives affiliated under the terms of Art. 1, § 6; and

b) by the institutions referred to in the caput of Art. 1, in the case of occurrence of a relevant fact;

IV - archived at the headquarters of the respective institution, available to the Central Bank of Brazil for a minimum period of five years, accompanied by the review and appreciation referred to in items I and II.

Art. 5. Institutions not obliged, under the terms of this resolution, to send the report of the director responsible for the ombudsman to the Central Bank of Brazil, must keep the reports not yet sent in the form required by Resolution No. 3,477, of July 26, 2007, at the institution's headquarters, as provided for in Art. 4, § 6, item IV.

Art. 6. The institutions referred to in the caput of Art. 1 must adopt measures so that all members of the ombudsman are considered qualified in a certification exam organized by an entity of recognized technical capacity.

§ 1. The certification exam referred to in the caput must cover, at a minimum, topics related to ethics, consumer rights and defense, and conflict mediation, and must have been carried out after July 30, 2007.

§ 2. The designation of the members of the ombudsman is conditioned to proof of qualification in the certification exam referred to in the caput, in addition to compliance with the other requirements of this resolution.

§ 3. The institutions referred to in the caput of Art. 1 are responsible for the periodic updating of the knowledge of the members of the ombudsman.

§ 4. The director responsible for the ombudsman must comply with the formality provided for in the caput only in the case provided for in Art. 4, § 1, item III.

§ 5. In the cases provided for in Art. 1, §§ 7, 8, and 10, the respective agreements must contain a clause requiring certification exams for all members of the ombudsmen of the class associations, entities, and affiliated companies, under the terms of this resolution.

Art. 7. The ombudsman must maintain an updated control system of received complaints, in such a way that the history of services and the identification data of clients and users of products and services can be evidenced, with all documentation and measures adopted.

Sole paragraph. The information and documentation referred to in the caput must remain available to the Central Bank of Brazil at the institution's headquarters for a minimum period of five years, counted from the date of registration of the occurrence.

Art. 8. The Central Bank of Brazil may adopt complementary measures necessary for the execution of the provisions of this resolution.

Art. 9. This resolution enters into force on the date of its publication.

Art. 10. Resolutions No. 3,477, of July 26, 2007, and No. 3,489, of August 29, 2007, are hereby repealed.

Brasília, March 25, 2010.

Henrique de Campos Meirelles
President