CVM Instruction No. 529 of November 1, 2012 (Revoked)

CVM INSTRUCTION NO. 529, OF NOVEMBER 1, 2012

Provides for the establishment of the Ombudsman within the securities market.

The INTERIM PRESIDENT OF THE SECURITIES AND EXCHANGE COMMISSION - CVM makes public that the Collegiate Body, in a meeting held on October 31, 2012, based on arts. 4º, II, IV and VI and 8º, I of Law No. 6.385, of December 7, 1976, APPROVED the following Instruction:

CHAPTER I – DEFINITIONS AND SCOPE

Art. 1º The Ombudsman service within the securities market (Ombudsman) is responsible for receiving, registering, analyzing, instructing, and responding to inquiries, suggestions, complaints, criticisms, praises, and reports from clients regarding activities related to the securities market, which have not been satisfactorily resolved by the institution's usual service channels.

Sole Paragraph. The Ombudsman must adopt measures to:

I – communicate with the institution's internal organizational components to obtain the clarifications and measures necessary for the instruction and resolution of the demand, maintaining monitoring to ensure that the client is responded to within the established deadlines;

II – develop statistics and reports regarding the demands to serve as a basis for the adoption of measures that mitigate the occurrence of operational and service failures, with the aim of contributing to the improvement of internal controls and the quality of services provided in the securities market; and

III – act as a mediator of conflicts between the institution and the clients, with the financial authority within which the Ombudsman may determine the reimbursement of damages or the execution of agreements being established at the discretion of each institution.

Art. 2º The following must establish an Ombudsman:

I – institutions authorized to act as part of the distribution system;

II – providers of securities custody services;

III – certificate issuing agents; and

IV – providers of book-entry services.

§ 1º The provisions of the caput do not apply:

I – to entities administering organized markets; and

II – to clearing and settlement entities.

§ 2º The Ombudsman of the institutions referred to in item I of the caput must attend to demands related to the autonomous investment agents contracted by such institutions.

§ 3º The institutions referred to in items I to IV of the caput must provide wide publicity regarding the existence of the Ombudsman and its service channels, as well as provide complete information regarding its purpose and method of use.

§ 4º The publicity regarding the existence of the Ombudsman and its service channels referred to in § 3º must be provided:

I – in a visible location and format to the public in the institution's premises;

II – on their respective addresses on the worldwide computer network; and

III – 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.

§ 5º The institutions referred to in items I to IV of the caput do not need to establish an Ombudsman if they exclusively have clients who are:

I – employees and other persons linked to the institution or its economic group; or

II – qualified investors, as per the applicable regulations.

CHAPTER II – THE OMBUDSMAN

Section I – The Ombudsman

Art. 3º The institutions referred to in Art. 2º must indicate the person responsible for the Ombudsman (Ombudsman) to the CVM, who must be linked to the institution.

Art. 4º The obligation provided for in item I of Art. 2º may be met directly, through a specific organizational component, or through a professional association to which the institutions are affiliated.

§ 1º Institutions that already have an Ombudsman organizational component, in accordance with the regulations of the National Monetary Council on the matter, may use the same service to meet the obligation contained in Art. 2° of this Instruction.

§ 2º Institutions that are part of the same economic group may establish a single organizational component of the Ombudsman that will act on behalf of all members of the group.

Section II – Rules of Conduct

Art. 5° The Ombudsman must act in accordance with the following rules of conduct:

I – exercise of its activities with probity, good faith, and professional ethics;

II – elimination of disproportionate formalities and requirements for the presentation of demands, ensuring the existence of minimum information for the identification of the demand and the author;

III – use of simple and accessible language, avoiding the use of expressions that are not understandable or are inadequate to the profile and degree of understanding of the client; and

IV – standardization of procedures for access to the Ombudsman, including the availability of standardized forms, easy to understand, for the most common demands.

§ 1º All demands sent to the Ombudsman must be responded to in a complete and precise manner, unless their subject matter is the competence of another institution that does not integrate the same economic group.

§ 2º If the subject matter of the demand presented by the client is the competence of another institution, as per § 1º, the institution's Ombudsman must:

I – inform the client of this fact; and

II – whenever possible, instruct the client on which institution is competent to provide the relevant clarification.

Section III – Procedures

Art. 6º The institutions referred to in Art. 2º must ensure that the Ombudsman has the necessary resources and access to relevant information for the adequate response to demands, with administrative support, allowing it to fulfill, in an effective and complete manner, the obligations, procedures, and deadlines provided for in this Instruction and the institution's internal rules.

Art. 7° The Ombudsman must function according to standardized procedures, approved by the administrative bodies of the institutions referred to in Art. 2º.

§ 1º The procedures referred to in the caput must provide for:

I – the maximum deadlines for the Ombudsman's service;

II – the information to be provided by clients that enable the Ombudsman's action;

III – the means and procedures for receiving, processing, and attending to demands;

IV – the available service channels, with respective hours and modes of operation;

V – cases of priority in service, by legal, regulatory provision, or by internal decision of the institution; and

VI – the definition and scope of the Ombudsman service, as per Art. 1º, caput and sole paragraph.

§ 2º The service deadlines referred to in item I of § 1º:

I – must not exceed the maximum deadline of 15 (fifteen) days, counted from the date of the demand's protocol, except when it is a demand related to funds regulated by Decree-Law No. 157, of February 10, 1967, when they must not exceed the maximum deadline of 60 (sixty) days; and

II – must be informed to the claimant when sending the protocol acknowledging receipt of the demand.

§ 3º In case of justified impossibility of attending to the demand within the maximum deadline referred to in item I of § 1º, the institution's Ombudsman must, within this deadline, communicate to the claimant the measures already adopted, the reasons for such impossibility, and the new deadline for the final response, which cannot be superior to the deadline referred to in item I of § 2º from the date of the communication.

§ 4º The procedures referred to in the caput must be available to the public, at least, on the institution's page on the worldwide computer network.

Art. 8º The institutions referred to in Art. 2º must make available the following service channels to their clients:

I – telephone;

II – physical correspondence; and

III – electronic access means, through:

a) email; or

b) standardized electronic form on the worldwide computer network.

Sole Paragraph. In addition to the mandatory service channels referred to in the caput, the availability of in-person service to their clients is optional.

Art. 9º The Ombudsman must:

I – propose to the institution's administrative bodies, corrective measures or improvements to procedures and routines, as a result of the analysis of received complaints; and

II – prepare and send to the institution's administrative bodies, by the last business day of the months of January and July, a quantitative and qualitative report regarding the Ombudsman's action, containing the proposals referred to in item I, relative to the semester ended in the month immediately preceding the delivery date.

Sole Paragraph. In the cases of Ombudsman established by the institutions referred to in item I of Art. 2º, the report referred to in item II of the caput may be included, as a separate chapter, in the semi-annual report elaborated by the statutory director responsible for supervising the institution's procedures and internal controls.

CHAPTER III – THE CVM'S ACTION IN ATTENDING TO THE INVESTOR

Art. 10. The Citizen Service – SAC of the CVM, provided for in its regulatory structure, may forward, observing the rules that provide for the simplification of public service provided to citizens by federal executive power bodies, requests for inquiry or complaint regarding the action of a market participant to the institution's Ombudsman, for the adoption of the measures provided for in Art. 1º.

§ 1° In the cases provided for in the caput, the service provided by the Ombudsman and the measures and solutions adopted must be reported to the CVM's Superintendence of Orientation and Investor Protection – SOI within a maximum deadline of 15 (fifteen) days, except when it is a demand related to funds regulated by Decree-Law No. 157, of February 10, 1967, when they must not exceed the maximum deadline of 60 (sixty) days counted from their receipt.

§ 2º In case of justified impossibility of attending to the demand within the maximum deadline referred to in § 1º, the institution's Ombudsman must, within this deadline, communicate to the CVM the measures already adopted, the reasons for such impossibility, and the new deadline for forwarding the measures and solutions.

§ 3º In the cases referred to in the caput, the SOI may not initiate an administrative process, if it considers that the demand was adequately responded to by the Ombudsman.

CHAPTER IV – PROVISION OF INFORMATION

Art. 11. The institutions referred to in Art. 2º must inform and keep updated the data regarding their Ombudsman in their registration with the CVM, as per the regulation that provides for the registration of participants in the securities market.

Sole Paragraph. Institutions must keep updated the Ombudsman's registration data, services, service channels, procedures, and internal rules on the institution's page on the worldwide computer network.

Art. 12. The Ombudsman must prepare a report regarding the semesters ending on June 30 and December 31 of each year, within 60 days after the end of each semester, in the form of Annex 12 of this Instruction.

CHAPTER V – MAINTENANCE OF ARCHIVES

Art. 13. The institutions referred to in Art. 2º must maintain, for a period of 5 (five) years or for a longer period by express determination of the CVM, in case of administrative process:

I – the reports referred to in item II of Art. 9º and Art. 12, as well as all documentation supporting them; and

II – the information regarding the demands received from clients and measures adopted, from the date of the demand's protocol.

CHAPTER VI – FINAL PROVISIONS

Art. 14. For the purposes of the provision of Art. 10, the investor relations department of issuers of securities admitted to trading in regulated markets and the department responsible for the unit holder service of investment fund administrators are equated to the Ombudsman.

Sole Paragraph. Issuers of securities admitted to trading in regulated markets and investment fund administrators that do not exclusively administer resources of qualified investors must comply with the provisions of Arts. 6º and 8º.

Art. 15. The investor relations director of issuers of securities admitted to trading in regulated markets must adopt the appropriate measures for the implementation of the provisions of Arts. 1º, sole paragraph, 5º and 7º, §§ 2º and 3º of this Instruction.

Sole Paragraph. The provision of the caput applies to the legal representative of foreign issuers, as per the regulations applicable to issuers of securities admitted to trading in regulated securities markets.

Art. 16. The director responsible for the unit holder service of investment fund administrators must adopt the appropriate measures for the implementation of the provisions of Arts. 1º, sole paragraph, 5º, 7º, §§ 2º and 3º, 9º, caput and 12 of this Instruction, when the institution does not exclusively administer resources of qualified investors.

Art. 17. Items IX, X, XI, XV, XVI, XVII, XXIX, XXX and XXXII of Annex 2 of CVM Instruction No. 510, of December 5, 2011, shall enter into force with the additions of the information contained in Annex 17 of this Instruction.

Art. 18. Item XXX of Annex 1 and the Title referring to item XXX of Annex 2 of CVM Instruction No. 510, of 2011, shall enter into force with the following wording:

“ANNEX 1
PARTICIPANTS
......
XXX – provider of securities custody services; ......” (NR)

“ANNEX 2
......

XXX – REGISTRATION INFORMATION RELATIVE TO THE PROVIDER OF SECURITIES CUSTODY SERVICES” ......” (NR)

Art. 19. Item XX of Annex 2 of CVM Instruction No. 510, of 2011, shall enter into force with the additions of the information contained in Annex 19 of this Instruction.

Art. 20. This Instruction enters into force on July 1, 2013.

Original signed by
OTÁVIO YAZBEK
Interim President

CVM INSTRUCTION NO. 529, OF NOVEMBER 1, 2012

ANNEX 12
Content of the Semi-Annual Report

Art. 1º The semi-annual report referred to in Art. 12 must contain at least:

I – descriptive section, addressing the following aspects:

a) evaluation regarding the effectiveness of the Ombudsman's work, including regarding the institution's commitment to the satisfactory development of the Ombudsman's mission;

b) adequacy of the Ombudsman's structure to meet legal and regulatory requirements, with evidence of deficiencies detected for the development of its activities, including regarding the quantity of employees and attendants, the implemented logistics, equipment, facilities, and routines used, taking into consideration the nature of the services and clients of the institution;

c) detailing of the proposals forwarded by the Ombudsman to the administrative bodies, as per item I of Art. 9º of this Instruction, mentioning the periodicity and method of its forwarding, discriminating:

1. the proposals not accepted and respective justifications;

2. the accepted and not yet implemented and respective deadlines for implementation; and

3. the already implemented;

d) information on the criteria used to qualify the validity of the complaints registered in the period and their classification as resolved or not, as per Art. 1º, II, b), of this Annex.

II – statistical section, containing the following consolidated information on the complaints registered in the Ombudsman during the period:

a) segmented by institution, in the case provided for in § 2º of Art. 4º, by natural and legal persons and by themes;

b) qualified as unfounded, founded resolved, and founded not resolved; and

c) segregated by month and totaled for the semester to which it corresponds.

CVM INSTRUCTION NO. 529, OF NOVEMBER 1, 2012

ANNEX 17
Additions of information to items IX, X, XI, XV, XVI, XVII, XXIX, XXX and XXXII of Annex 2 of CVM Instruction No. 510, of December 5, 2011.

“......
Ombudsman Responsible for CVM Instruction No. 529, of November 1, 2012:
CPF.
Name.
Email.
Street.
Complement.
Neighborhood.
State.
City.
Zip Code.
Related Phones.
Related Fax
Start Date.
End Date.” (NR)

CVM INSTRUCTION NO. 529, OF NOVEMBER 1, 2012

ANNEX 19
Additions of information to item XX of Annex 2 of CVM Instruction No. 510, of December 5, 2011.

“......
Director responsible for the Unit Holder Service referred to in item XII and the sole paragraph of Art. 65 of CVM Instruction No. 409, of August 18, 2004, and Arts. 14 and 16 of CVM Instruction No. 529, of 2012:
CPF.
Name.
Email.
Street.
Complement.
Neighborhood.
State.
City.
Zip Code.
Related Phones.
Related Fax
Start Date.
End Date.” (NR)