On March 1 2016 National Council of Private Insurance (CNSP) Resolution 330/2015 came into force. The resolution has amended the requirements and procedures in relation to:
- the creation of insurers, pension funds, capitalisation companies, reinsurers and reinsurance brokers;
- changes in control of the aforementioned entities; and
- the election of directors and officers.
Creation, operation authorisation and registration
In addition to the existing requirements (eg, presenting a business plan and demonstrating financial capacity), the new resolution sets out other requirements regarding the creation, authorisation and registration of insurers, pension funds, capitalisation companies and local reinsurers. The major changes introduced by Resolution 330 are as follows:
- The Superintendence of Private Insurance (SUSEP) will identify the people that comprise the 'economic group', which is defined as any group of companies – including financial holding companies – that are subject to common control or dominant influence. 'Control group' and 'financial conglomerate' have also been defined.
- SUSEP will identify the people that have a qualified interest – that is, a percentage of equity participation that is equal to or greater than 15%.
- SUSEP may require future majority shareholders to submit to a technical interview.
Change of control and reorganisations
Corporate transformations and portfolio transfers still require SUSEP approval, and this process may also require shareholders' agreements which expressly set out the control group.
If a shareholder already has a qualifyied interest and expands its participation to a percentage that is equal to or greater than 15%, it must submit this information to SUSEP as a post-closing measure, unless the increase is a pre-closing requirement in a change of control.
Suspension and cancellation
In accordance with the new resolution, where a business plan fails to meet the company's objectives, SUSEP may suspend the company's activities. However, the resolution does not specify a suspension period. Instead, it provides only that any suspension must be set for a "reasonable" amount of time to correct the situation. The previous regulation had a 90-day suspension period.
Admitted and occasional reinsurers
Under the resolution, SUSEP may prohibit companies domiciled in countries with limited mechanisms to prevent money laundering and terrorist financing from being registered as admitted and occasional reinsurers.
Another significant change is that SUSEP may evaluate the reputation of local representatives of admitted and occasional reinsurers, as well as the directors, members of the control group and individuals that have a qualified interest in insurers and local reinsurers. This process may give rise to questioning and even refusal of registration in some cases.
Election process for directors and officers
The resolution has also changed the approval and election process for directors and officers of insurers, local reinsurers, admitted reinsurers, pension funds, capitalisation companies and reinsurance brokers.
Since March 2016 prior approval must be obtained before the election of directors and officers. Further, mandates for such personnel cannot exceed three years, with the possibility of re-election. Apart from board of director members and audit committee members, all other positions should be held by Brazilian residents.
Regarding the duties performed by directors and officers, the new resolution prohibits directors from performing executive or operational functions alongside supervision and control functions, which was previously allowed.
With respect to reinsurance brokers' right to operate, the resolution has established the following new rules:
- Reinsurance brokerages may be organised as individual companies with limited liability.
- Technical managers of reinsurance brokers must be responsible for all lines of insurance.
- Business plans must be presented.
- Direct equity investments must be controlled by either natural persons or legal entities based in Brazil whose sole purpose is to act as insurance or reinsurance brokers.
SUSEP Circulars 526, 527, 528 and 529 – which set out the procedures relating to the issues addressed in Resolution 330 – also entered into force on March 1 2016.
Circular 526, which applies to insurers, local reinsurers and admitted reinsurers:
- sets out the process for the appointment of the general representative in Brazil of companies headquartered abroad;
- provides for the liability of persons so elected or appointed, and of the body that elected or appointed them; and
- governs the waiver process and the consultation process applicable to the statutory positions.
Circular 527, which applies to admitted reinsurers:
- sets out the process for updating and unifying documents relating to SUSEP examination into a single procedure;
- establishes deadlines for the cadastral update procedure;
- provides for a solvency rating report which includes the results of the last financial year and the date of calculation;
- requires bank statements from foreign accounts to be submitted to the registry;
- removes the need to provide proof of actual experience in reinsurance activities in the country of origin, including in the cadastral update; and
- mandates the submission of financial statements for occasional reinsurers.
Circular 528, which applies to reinsurance brokers, updates the list of corporate documents subject to SUSEP examination and sets the deadlines for providing these documents to SUSEP.
In addition to updating the list of corporate documents subject to SUSEP examination, Circular 529 – which applies to insurers, local reinsurers and open private pension entities – sets out requirements in relation to signatures and technical interviews.
The resolution has introduced significant innovations and has been the focus of much attention from by the Brazilian insurance and reinsurance market.