CMN Resolution No. 4433 on the Constitution and Operation of Ombudsman Components by Financial Institutions

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 July 23, 2015, based on Article 4, item VIII, of the aforementioned Law,

R E S O L V E S:

CHAPTER I

ON THE OBJECT AND SCOPE OF APPLICATION

Art. 1. This Resolution regulates the constitution and operation of an organizational ombudsman component by the institutions it specifies.

Art. 2. The organizational ombudsman component must be established by financial institutions and other institutions authorized to operate by the Central Bank of Brazil that have natural person clients or legal entities classified as micro-enterprises and small-sized enterprises, in accordance with Complementary Law No. 123 of December 14, 2006.

Sole Paragraph. Commercial banks under corporate control of stock exchanges, commodity and futures exchanges, or stock and commodity and futures exchanges that perform exclusively the functions of central liquidator and custodian, providing services to the exchanges and economic agents responsible for the operations conducted therein, are exempt from establishing an ombudsman.

CHAPTER II

ON THE DUTIES

Art. 3. The duties of the ombudsman include:

I - providing last-instance service to demands from clients and users of products and services that have not been resolved through the institution's primary service channels;

II - acting as a communication channel between the institution and the clients and users of products and services, including in conflict mediation; and

III - informing the board of directors or, in its absence, the executive board, regarding the ombudsman's activities.

Sole Paragraph. For the purposes of this Resolution, primary service is considered the habitual service provided at any service points or channels, including those in the country and the Consumer Service (SAC) referred to in Decree No. 6,523 of July 31, 2008.

CHAPTER III

ON ORGANIZATION

Art. 4. The ombudsman's structure must be compatible with the nature and complexity of the products, services, activities, processes, and systems of each institution.

Sole Paragraph. The ombudsman cannot be linked to an organizational component of the institution that constitutes a conflict of interest or duties, such as units for trading products and services, the unit responsible for risk management, and the executive unit of the internal audit activity.

Art. 5. Sharing of the ombudsman is permitted in the following cases:

I - an institution that is part of a conglomerate composed of at least two institutions authorized to operate by the Central Bank of Brazil, with the ombudsman being established in any of the authorized institutions;

II - an institution that is not part of a conglomerate composed of at least two institutions authorized to operate by the Central Bank of Brazil, with the ombudsman being established:

a) in a linked company, according to the definition in Article 1, § 1, items I and III, of Resolution No. 2,107 of August 31, 1994; and

b) in the class association to which it is affiliated or in the stock exchange, commodity and futures exchange, or stock and commodity and futures exchange in which it conducts operations;

III - a single credit cooperative affiliated with a central cooperative, with the ombudsman being established in the respective central cooperative, confederation of credit cooperatives, or bank of the cooperative system; and

IV - a single credit cooperative not affiliated with a central cooperative, with the ombudsman being established in a central cooperative, federation of credit cooperatives, confederation of credit cooperatives, or class association of the category.

§ 1. The provision in item II, letter “b”, does not apply to commercial banks, multiple banks, savings banks, credit, financing, and investment companies, savings and loan associations, and leasing companies that conduct financial leasing operations.

§ 2. The provisions in items II, letter “b”, and IV apply only to class associations or exchanges that have an effectively implemented code of ethics or self-regulation to which the institution has adhered.

CHAPTER IV

ON OPERATION

Art. 6. The ombudsman's duties encompass the following activities:

I - attend, register, instruct, analyze, and provide formal and adequate treatment to demands from clients and users of products and services;

II - provide clarifications to requesters regarding the progress of demands, informing the expected response time;

III - send a conclusive response to the demand within the expected time;

IV - keep the board of directors or, in its absence, the executive board informed about problems and deficiencies detected in the fulfillment of its duties and about the results of measures adopted by the institution's administrators to resolve them; and

V - prepare and send to internal audit, the audit committee, when existing, and the board of directors or, in its absence, the executive board, at the end of each semester, a quantitative and qualitative report on the activities developed by the ombudsman in fulfilling its duties.

§ 1. The service provided by the ombudsman:

I - must be identified by a protocol number, which must be provided to the requester;

II - must be recorded when conducted by telephone, and when conducted via written document or electronic means, the respective documentation must be archived; and

III - may encompass:

a) exceptionally, demands not initially received by primary service channels; and

b) demands forwarded by the Central Bank of Brazil, public agencies, or other public or private entities.

§ 2. The response time for demands cannot exceed ten business days, and may be extended, exceptionally and for justified reasons, only once, for an equal period, limited to 10% (ten percent) of the total number of demands in the month, and the requester must be informed about the reasons for the extension.

Art. 7. The institution must maintain an information and control system for demands received by the ombudsman, in order to:

I - register the history of services, the information used in the analysis, and the measures adopted; and

II - control the response time.

Sole Paragraph. The information referred to in this article must remain registered in the system for a minimum period of five years, counted from the date of the occurrence's protocol.

Art. 8. The institution must:

I - provide wide publicity regarding the existence of the ombudsman, its duties, and access methods, including in the communication channels used to disseminate products and services; and

II - guarantee free access for clients and users to the ombudsman's service, through agile and effective channels, including by telephone, the number of which must be:

a) published and kept updated in a visible location to the public within its premises and those of correspondents in the country, as well as on their respective websites, accessible from the homepage;

b) provided on statements, receipts, including electronic ones, contracts, advertising and promotional materials, and other documents intended for clients and users; and

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

CHAPTER V

ON FORMAL REQUIREMENTS

Art. 9. The statutes or articles of association of the institutions referred to in Art. 2, according to the legal nature of the entity, must expressly provide for the following aspects:

I - the duties and activities of the ombudsman;

II - the criteria for appointing and dismissing the ombudsman and the duration of their term; and

III - the institution's express commitment to:

a) create adequate conditions for the operation 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 to formulate adequate responses to received demands, with full administrative support, including the power to request information and documents for the exercise of its activities in fulfilling its duties.

§ 1. The requirements set forth in the main text must be included in the institution's statutes or articles of association in the first amendment that occurs after the establishment of the ombudsman or after the entry into force of this Resolution.

§ 2. Statutory or contractual amendments required by this Resolution regarding institutions that opt for the facility provided in Art. 5, items I and III, may be promoted only by the institution that establishes the ombudsman.

§ 3. Institutions that do not establish their own ombudsman due to the facility provided in Art. 5, items II and IV, must ratify the decision in the first general assembly or the first executive board meeting held after such decision.

Art. 10. The institutions referred to in Art. 2 must designate to the Central Bank of Brazil the names of the ombudsman and the director responsible for the ombudsman.

§ 1. The director responsible for the ombudsman may perform other functions in the institution, including that of ombudsman, except for the function of director of third-party resource administration.

§ 2. In the cases of commercial banks, multiple banks, savings banks, credit, financing, and investment companies, savings and loan associations, and leasing companies that conduct financial leasing operations, which are subject to the obligation to establish an audit committee, in accordance with Resolution No. 3,198 of May 27, 2004, the ombudsman may not perform any other function, except that of the director responsible for the ombudsman.

§ 3. In situations where the ombudsman performs another activity in the institution, that activity cannot constitute a conflict of interest or duties.

§ 4. The data regarding the director responsible for the ombudsman and the ombudsman must be entered and kept updated in an information system, as established by the Central Bank of Brazil.

Art. 11. In the cases provided for in Art. 5, items I, III, and IV, the ombudsman must:

I - be responsible for all institutions that share the ombudsman; and

II - be part of the staff of the institution that establishes the ombudsman.

Art. 12. To comply with the main text of Art. 10, in the cases provided for in Art. 5, item II, the institutions must:

I - designate to the Central Bank of Brazil only the name of the respective 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, commodity and futures exchange, or stock and commodity and futures exchange, entity, or company that establishes the ombudsman.

CHAPTER VI

ON THE PROVISION OF INFORMATION

Art. 13. The director responsible for the ombudsman must prepare a semi-annual report regarding the activities developed by the ombudsman, with base dates of June 30 and December 31.

Sole Paragraph. The report referred to in the main text must be sent to internal audit, the audit committee, when existing, and the board of directors or, in its absence, the executive board.

Art. 14. Institutions must semi-annually publish, on their respective websites, information regarding the activities developed by the ombudsman.

Sole Paragraph. The Central Bank of Brazil may establish the minimum content of the information referred to in the main text.

Art. 15. The Central Bank of Brazil will establish the content, format, frequency, and deadline for sending data and information regarding the ombudsman's activities.

CHAPTER VII

ON CERTIFICATION

Art. 16. The institutions referred to in Art. 2 must take measures to ensure that members of the ombudsman who perform the activities mentioned in Art. 6 are considered qualified in a certification exam organized by an entity of recognized technical capacity.

§ 1. The certification exam must cover, at a minimum, topics related to ethics, consumer rights and defense, and conflict mediation.

§ 2. The appointment of the members of the ombudsman referred to in the main text is conditioned upon proof of qualification in the certification exam, in addition to meeting the other requirements of this Resolution.

§ 3. The institutions referred to in Art. 2 are responsible for the periodic updating of the knowledge of the members of the ombudsman.

§ 4. The director responsible for the ombudsman is subject to the formality set forth in the main text, if they exercise the function of ombudsman.

§ 5. In the cases provided for in Art. 5, items II and IV, the provisions of this article apply to the members of the ombudsman of the class association, entity, and company that perform the activities mentioned in Art. 6.

CHAPTER VIII

FINAL PROVISIONS

Art. 17. The Central Bank of Brazil may adopt complementary measures necessary for the execution of the provisions of this Resolution.

Art. 18. The reports and documentation regarding the services provided, referred to in Art. 6, item V and § 1, Art. 7, and Art. 13, as well as the telephone recording of the service, must remain available to the Central Bank of Brazil at the institution's headquarters for a minimum period of five years.

Art. 19. A deadline until June 30, 2016, is granted for the institutions referred to in Art. 2 to adapt to the provisions of this Resolution.

Art. 20. This Resolution enters into force on the date of its publication.

Art. 21. Resolution No. 3,849 of March 25, 2010, is hereby repealed.

Alexandre Antonio Tombini
President of the Central Bank of Brazil