CVM Instruction 545 (Repealed)

Dispenses with the summary administrative sanctioning procedure.

The PRESIDENT OF THE COMMISSION OF SECURITIES AND EXCHANGE - CVM makes public that the Collegiate Board, in a meeting held on January 22, 2014, and based on the provisions of arts. 8, item I; 9, items V and VI and § 2; and 11 of Law No. 6,385, of December 7, 1976, APPROVED the following Instruction:

CHAPTER I
OBJECTIVE NATURE INFRACTION

Art. 1. The following are considered objective nature infractions, in which a summary administrative sanctioning procedure may be adopted:

I – portfolio administrators of securities fail to observe the deadlines for presenting periodic information provided for in the regulation that governs the administration of securities portfolios;

II – administrators of companies benefiting from resources originating from tax incentives fail to observe the deadlines for presenting periodic and eventual information provided for in the regulation that governs the registration of companies benefiting from resources originating from tax incentives, except for the case of communication regarding material acts or facts, as established in specific regulation; and

III – administrators of issuers of securities, the legal representative of the foreign issuer and, when applicable, the liquidator, judicial administrator, judicial manager, intervener or similar figure, fail to observe the deadlines for presenting periodic and eventual information provided for in the regulation that governs the registration of issuers of securities admitted to trading in regulated securities markets, except for the cases of:

a) communication regarding material acts or facts, as established in specific regulation; and

b) documents necessary for the exercise of voting rights in general assemblies, as established in law or specific regulation;

IV – the fiduciary agent fails to:

a) prepare a report intended for debenture holders, in accordance with art. 68, § 1, item “b”, of Law No. 6,404, of December 15, 1976; and

b) publish an announcement informing debenture holders that the report is available to them, within the deadline provided for in art. 68, § 1, item “b”, of Law No. 6,404, of 1976;

V – the independent auditor fails to observe the deadlines, provided for in the regulation that governs the registration and exercise of the independent auditing activity within the securities market, of:

a) presentation of periodic and eventual information; and

b) communication to the CVM of relevant irregularity;

VI – the issuing company of investment certificates for the production, distribution, exhibition and technical infrastructure of Brazilian audiovisual cinematic works fails to observe the deadlines for presenting the following reports provided for in the regulation that governs the issuance and distribution of investment certificates for the production, distribution, exhibition and technical infrastructure of Brazilian audiovisual cinematic works:

a) regarding the subscription of quotas;

b) of project evolution; and

c) containing information regarding the returns resulting from the commercialization of the project;

VII – the Municipality issuing CEPAC fails to observe the deadline for presenting the periodic information provided for in the regulation that governs the records of trading and public distribution of certificates of additional construction potential;

VIII – the leading institution of distribution, within the deadlines provided for in the regulation that governs public offerings for the distribution of securities, in the primary or secondary markets, fails to:

a) send to the CVM a report indicating the consolidated movement of distribution of securities; and

b) authorize the release of the unused balance of reserve deposits for subscription or acquisition of securities subject to public distribution offering in favor of the respective depositors;

IX – the leading intermediary fails to observe the deadline for sending to the CVM the statement of closure of the public offering distributed with restricted efforts, or of additional communications, in the case of non-closure of the offering within the regulatory deadline, as provided for in the regulation that governs public offerings of securities distributed with restricted efforts and the trading of these securities in regulated markets;

X – the institutions administering index funds and, when applicable, the intervener, the judicial administrator or the liquidator, in accordance with the regulation that governs the constitution, administration and operation of index funds, with quotas negotiable in a stock exchange or organized over-the-counter market, fail to:

a) observe the deadlines for presenting periodic and eventual information, including those related to the spin-off, merger, incorporation, transformation and liquidation of the fund;

b) send to the CVM, on the date of the first subscription of quotas, the registration number of the fund in the National Registry of Legal Entities – CNPJ;

c) provide, in the bylaws, for the fixing and payment conditions of the administration fees, and, if applicable, the entry and exit fees;

d) observe the rules for subscription and redemption of index fund quotas;

e) observe the deadline for convening a general meeting of quota holders;

f) disclose, daily, to the stock exchange or over-the-counter market entity in which the fund quotas are listed, the net asset value per quota, the composition of the fund portfolio and the value of its net assets; and

g) observe the deadline to promote the division of the fund's assets among the quota holders, in the event of liquidation of the fund by resolution of the general assembly;

XI – the administering institutions and, when applicable, the intervener, the judicial administrator or the liquidator, of credit rights investment funds – FIDC, of non-standardized credit rights investment funds – FIDC-NP, of investment funds in credit rights investment fund quotas – FICFIDC and of investment funds in credit rights within the scope of the Program for Incentive to the Implementation of Projects of Social Interest – FIDC-PIPS, in accordance with the regulations that govern the constitution and operation of these funds, fail to:

a) observe the deadlines for presenting periodic and eventual information, including those related to the spin-off, merger, incorporation, transformation and liquidation of the fund;

b) observe the deadline to inform the CVM of the date of the first subscription of quotas and the closure of each distribution of quotas of closed funds;

c) observe the deadline for convening a general meeting of quota holders;

d) observe the deadline to disclose to quota holders the decisions of the general assembly; and

e) provide, in the bylaws, for the fixing and payment conditions of the administration fees, and, if applicable, the entry and exit fees;

XII – the institutions administering real estate investment funds, and, when applicable, the intervener, the judicial administrator or the liquidator, in accordance with the regulation that governs the constitution, operation and administration of these funds, fail to:

a) observe the deadlines for presenting periodic and eventual information, including those related to the spin-off, merger, incorporation, transformation and liquidation of the fund;

b) observe the deadline for convening a general meeting of quota holders; and

c) provide, in the bylaws, for the fixing and payment conditions of the administration fees, and, if applicable, the entry and exit fees;

XIII – the institutions administering investment funds in participating companies, and, when applicable, the intervener, the judicial administrator or the liquidator, in accordance with the regulation that governs the constitution, operation and administration of these funds, fail to:

a) observe the deadlines for presenting periodic and eventual information, including those related to the spin-off, merger, incorporation, transformation and liquidation of the fund;

b) observe the deadline for convening a general meeting of quota holders; and

c) provide, in the bylaws, for the fixing and payment conditions of the administration fees, and, if applicable, the entry and exit fees;

XIV – the institutions administering mutual investment funds in emerging companies, and, when applicable, the intervener, the judicial administrator or the liquidator, in accordance with the regulation that governs the constitution, operation and administration of these funds, fail to:

a) observe the deadlines for presenting periodic and eventual information, including those related to the spin-off, merger, incorporation, transformation and liquidation of the fund;

b) observe the deadline for convening a general meeting of quota holders; and

c) provide, in the bylaws, for the fixing and payment conditions of the administration fees, and, if applicable, the entry and exit fees;

XV – the institutions administering funds for financing the national cinematic industry – FUNCINE, and, when applicable, the intervener, the judicial administrator or the liquidator, in accordance with the regulation that governs the constitution, administration, operation and disclosure of information of these funds, fail to:

a) observe the deadlines for presenting periodic and eventual information, including those related to the spin-off, merger, incorporation, transformation and liquidation of the fund;

b) send to the CVM, within 10 (ten) days after the end of the subscription of fund quotas, the registration number of the fund in the National Registry of Legal Entities – CNPJ and the list of subscribers of fund quotas; and

c) observe the deadline for convening a general meeting of quota holders; and

XVI – the institutions administering mutual privatization funds – FGTS and, when applicable, the intervener, the judicial administrator or the liquidator, in accordance with the regulation that governs the constitution, administration and operation of mutual privatization funds – FGTS intended for the acquisition of securities, with resources available from the linked account of the Employment Guarantee Fund – FGTS, fail to observe:

a) the deadlines for presenting periodic and eventual information, including those related to the spin-off, merger, incorporation, transformation and liquidation of the fund;

b) the deadline for convening a general meeting of quota holders;

c) the deadline for convening an assembly to elect its successor or deliberate the incorporation of the mutual privatization fund – FGTS; and

d) the rules for payment and redemption deadline to quota holders of the mutual privatization funds – FGTS.

CHAPTER II
SUMMARY PROCEDURE

Art. 2. The summary administrative sanctioning procedure shall be initiated and judged by the Superintendency corresponding to the merits of the process.

§ 1. The Superintendencies must provide for the written summons of the accused to present a defense.

§ 2. The summons must contain:

I – name and qualification of the accused;

II – narrative of the investigated facts that demonstrate the materiality of the infractions being investigated;

III – analysis of authorship of the infractions being investigated, containing the individualization of the accused's conduct, making express reference to the evidence that demonstrates their participation in the infractions being investigated;

IV – the legal or regulatory provisions infringed;

V – proposal for communication to public agencies, if applicable; and

VI – the warning that the accused may propose the execution of a commitment term, in accordance with the provisions of art. 11, § 5, of Law No. 6,385, of December 7, 1976, except when investigating irregularities related to Law No. 9,613, of March 3, 1998.

Art. 3. The accused has a deadline of 15 (fifteen) days, counted from the date of receipt of the summons, to present their defense, in writing, accompanied by the documents on which it is based and with any request for evidence.

Sole paragraph. The deadline referred to in the caput shall be calculated in double when the accused have different attorneys.

Art. 4. Upon completion of the instruction, the Superintendent has a deadline of 30 (thirty) days to judge the process.

Sole paragraph. The Superintendent may apply to the accused the penalty of warning or monetary fine of up to R$ 100,000.00 (one hundred thousand reais).

Art. 5. The decision issued by the Superintendent shall be communicated in writing to the accused so that, if desired, they may file an appeal, with suspensive effect, to the Collegiate Board, within a deadline of 15 (fifteen) days, counted from the knowledge of the decision.

Art. 6. The decision issued by the Collegiate Board shall be communicated in writing to the accused so that, if desired, in a petition sent to the CVM, they may file an appeal, with suspensive effect, to the Council of Resources of the National Financial System, within a deadline of 15 (fifteen) days, counted from the knowledge of the decision.

Art. 7. The summary procedure shall not be adopted in cases of specific recidivism.

Art. 8. If the Superintendent chooses to initiate a single procedure to investigate an objective nature infraction and other infractions not provided for in this Instruction, the procedure adopted shall be that provided for in the regulation that governs the ordinary procedures to be observed in the processing of administrative sanctioning processes, for the purposes of the provisions of art. 9, items V, VI and § 2, of Law No. 6,385, of 1976.

CHAPTER III
FINAL PROVISIONS

Art. 9. The following are repealed:

I – CVM Instruction No. 251, of June 14, 1996;

II – art. 31 of CVM Instruction No. 260, of April 9, 1997;

III – items I and II of art. 32 of CVM Instruction No. 265, of July 18, 1997;

IV – items I to III of art. 12 of CVM Instruction No. 266, of July 18, 1997;

V – art. 19 of CVM Instruction No. 306, of May 5, 1999;

VI – art. 38 of CVM Instruction No. 308, of May 14, 1999;

VII – CVM Instruction No. 335, of May 4, 2000;

VIII – art. 62 of CVM Instruction No. 356, of December 17, 2001;

IX – art. 76 of CVM Instruction No. 359, of January 22, 2002;

X – art. 17 of CVM Instruction No. 380, of December 23, 2002;

XI – art. 8 of CVM Instruction No. 390, of July 8, 2003;

XII – art. 40 of CVM Instruction No. 391, of July 16, 2003;

XIII – art. 89 of CVM Instruction No. 398, of October 28, 2003; and

XIV – art. 78 of CVM Instruction No. 399, of November 21, 2003.

Art. 10. This Instruction enters into force on the date of its publication.

Original signed by
LEONARDO P. GOMES PEREIRA
President