Santos Bevilaqua Newsletter – May 2018

Author:Santos Bevilaqua Advogados
Profession:Santos Bevilaqua Advogados
 
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INSURANCE NSURANCE AND OPEN SUPPLEMENTARY SOCIAL SECURITY

1) BILL No. 3139/2015

The House of Representatives approved Law no. 3139/2015, as a substitute, that regulates associations and cooperatives that offer vehicle protection. If no objection is presented, the bill will be sent to the Senate, which may approve it in full, and then, it will be submitted to the President for sanction, or may modify it, in which event the bill will be sent back to House of Representatives to be voted.

The bill was proposed by Federal Representative Lucas Vergilio (Solidarity- SD political party/State of Goiás) and is intended to put the so-called "pirate associations" under the supervision of the Private Insurance Superintendence (SUSEP) and the National Council of Private Insurance (CNSP). The term "pirate associations" was created to designate cooperatives and mutual funds that offer insurance to their members or develop insurance activities, as if they were insurers in fact.

Although acting as typical insurers, currently, these associations are not subject to the rules set by CNSP and inspection by SUSEP - therefore they are not required to meet the strict requirements set by CNSP and SUSEP.

Santos Bevilaqua's lawyer and President of the National Group of Consumer Relations from AIDA - Brazil, Ana Paula Bonilha de Toledo Costa, and National Confederation of Companies in General Insurance, Private Pension and Life, Health Insurance and Capitalization - CNSeg's lawyer and Vice-President of the National Group of Consumer Relations from AIDA - Brazil, Nathália Rodrigues, are co-writing an article about this theme that will be published soon.

The course of Bill no. 3139/2015 may be checked at: http://www.camara.gov.br/proposicoesWeb/fichadetramitacao?idProposicao=1805742

2) DECREE No. 9374, OF 5/14/2018

On 5/15/2018, the Federal Official Journal published Decree no. 9374, of 5/14/2018, amending Decree no. 3937, of September 25, 2001, which regulates Law no. 6704, of October 26, 1979, that provides for the Export Credit Insurance (SCE).

The decree amends item IV of article 3 of Decree 3937 to specify what is considered a political risk in regard to any act or decision of the authorities of a debtor country preventing the performance of a guaranteed contract.

In addition, par. 10 of art. 8 was changed and now it determines that the Federal Government's guarantee for the SCE operations will apply not only to the principal but also to the interest. Therefore, it will be applied, as a whole, to the principal, and the interest charged on the financing, with the addition of interest between the date of the obligation default and the deadline for the loss to be characterized in the cases of credit risk.

The text of par. 14 of the mentioned art. 8 was also amended and now it provides that the default, to be considered a commercial risk or an extraordinary or political risk that requires the SCE coverage (that is, a loss), must correspond to 90 days, instead of 180 days, from the maturity date of the first non-paid installment of the guaranteed contract, except for operations designed for the air sector.

Decree no. 9374 included par. 15 in art. 8 establishing that the guarantee of Federal Government, given through the Ministry of Finance, may comprise, in a sole guarantee, export credit operations of different exporters and importers. Finally, the decree also inserted par. 16 in art. 8, which determines that the Federal Government's guarantee in insurance transactions covering commercial risks, in the phase before the shipment, will be given to transactions, whose financing period exceeds two years, beginning on the date the credit was granted, involving manufactured and semi-manufactured products. Until then, only exporters that were Micro, Small, and Medium-Size Companies (MPMEs) had the SCE coverage in the phase before the shipment, for transactions with a financing period of 180 days beginning on the date the credit had been granted.

The entire rule may be accessed at: http://www.imprensanacional.gov.br/materia/-/asset_publisher/Kujrw0TZC2Mb/content/id/14285925/do1-2018-05-15-decreto-n-9-374-de-14-de-maiode-2018-14285921

3) Private Insurance Superintendence - SUSEP STATEMENT No. 207, OF 5/8/2018

On 5/11/2018, the Federal Official Journal published SUSEP Statement no. 207, of 5/8/2018, about the regulation of the Internal Audit of SUSEP (Audit)

The entire rule may be accessed at: http://www.imprensanacional.gov.br/materia/-/asset_publisher/Kujrw0TZC2Mb/content/id/13945241/do1-2018-05-11-deliberacao-n-207-de-8-de-maiode-2018-13945237

4) SUSEP CIRCULAR No. 569, of 5/2/2018

On May 3rd, 2018, the SUSEP Circular no. 569/2018 was published, which can be considered the new regulatory framework for Capitalization. Such Circular came out with important changes which will come into force 120 days from the date of its publication (August 30th, 2018).

The mentioned Circular is result from the SUSEP's efforts to solve problems related to the distortion using of the capitalization bonds. As a result of this initiative, a draft rule was submitted to the public consultation no. 19/2017, which was turned into this new Circular.

The article 2 defines Capitalization as an operation aimed at constituting minimum capital, perfectly determined at each plan, and paid in Brazilian currency, to the holders of the right to redemption and the right to lottery premium, reinforcing thus its main objective of capitalization quotas' constitution.

It is worth highlighting the maintenance of the possibility, in whole or in part, of assigning capitalization bond rights or obligations, faculty that will not apply to the popular modality, and shall be exercised by explicit and clear consent of the bond' subscriber, forbidding the charge of any amount for the assignment.

To the current modalities1 were added (i) guarantee instrument; and (ii) awardable philanthropy. The edition of a complementary Circular is expected to specify the applicable rules to the operation of the Capitalization bonds and its commercialization materials. Additionally, other themes shall be regulated such as the limit of quotas in each modality, instant gratification and the minimum size of the bond series.

This new rule will revoke SUSEP Circulars no. 365/2008; no. 378/2008; no. 396/2009; no. 416/2010; no. 453/2012; no. 459/2012; no. 472/2013; no. 475/2013; no. 502/2014; no. 504/2014; and articles 7, 8, 9, 13, and 16 of no. 460/2012.

The circular may be accessed at: http://www.imprensanacional.gov.br/materia/-/asset_publisher/Kujrw0TZC2Mb/content/id/12710605/do1-2018-05-03-circular-n-569-de-2-de-maio-de-2018-12710601

5) Foreign Trade Chamber - CAMEX RESOLUTION No. 33, OF 5/11/2017

On 5/14/2018, the Federal Official Journal published CAMEX Resolution no. 33, of 5/11/2017, which sets the guidelines on the use of SCE for the transactions of the Micro, Small, and Medium-Size Companies, with the Federal Government's guarantee, supported by the Export Guarantee Fund.

The Resolution establishes that the Federal Government's guarantee may be granted before and after the shipment, jointly or separately.

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Footnote

1 Traditional, Popular, Incentive, and Scheduled Purchase.

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The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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