CNSP Resolution 422/2021: Amendment to SUSEP’s authorization procedures for operations, commencement of operations in Brazil, exercise of positions in statutory or contractual bodies, payment of capital and transfer of portfolio and corporate control structure.

The Superintendence of Private Insurance (SUSEP) published CNSP Resolution No. 422/2021, which covers (i) authorization procedures for operations of supervised entities and insurance brokers, (ii) commencement of operations in Brazil of foreign reinsurers; (iii) exercise of positions in statutory or contractual bodies of supervised entities, insurance brokers and representative offices of admitted reinsurers; (iv) payment of capital of supervised entities, (v) transfer of supervised entities portfolio, and (vi) corporate control structure conditions.

The draft Resolution was placed for public consultation through Notice No. 30/2021, with the  aim of obtaining revisions of the draft for modernization in accordance with several legal frameworks that have been established. In addition, SUSEP also took advantage of experience gained from the Regulatory Sandbox to analyze and propose more dynamic and simplified control and investment structures, which could provide for greater entry of players into the market and attract investors.

Among the amendments, with the aim of putting in place a more simplified regulation for reinsurance brokers, the regulator separated the rules into those applicable to the supervised entities (insurance companies, capitalization companies, open supplementary pension entities and local reinsurers) and those specifically applicable to reinsurance brokers.

Regarding the OPERATION AUTHORIZATION, the Resolution proposes the following changes:

• Requirement to carry out a technical presentation of the general aspects of the project before analysis by SUSEP, to be conducted by the party responsible for such procedural condition at SUSEP;

• Permission for new investment structures, through holding companies and international investment funds, rescinding the rule of the requirement for a Brazilian specific purpose holding company (“SPE”);

• Easing of restrictions on the supervised entities’ corporate purpose, in order for such entities to carry out activities to support their operations. In relation to local reinsurers, the entity can provide technical services associated with reinsurance and retrocession operations, such as consulting. When control is held by a holding company, its corporate purpose may also encompass support activities;

• Permission for more modern arrangements in control structures, such as pulverized corporate control, applicable to insurance companies, local reinsurers, open supplementary pension entities and reinsurance brokers;

• Exemption from the presentation of a business plan by reinsurance brokers;

• Elimination of processes related to the installation and closing of branches of insurance companies;

• Inclusion of a provision regarding the demonstration of economic-financial capacity. Once this criterion is met by supervised company, the adjusted equity must be equal to or greater than the maximum amount calculated during the first 12 (twelve) months of operation, corresponding to two times the minimum capital required for insurance companies, open supplementary pension entities and local reinsurers, and three times the minimum capital for capitalization entities;

• Following a favorable opinion by SUSEP, the deadline for formalizing the acts of constitution/election of directors and members of statutory bodies will be 90 days (reduced from 180 days);

• Exemption from the obligation that, once activities have started, the entity must provide proof of adaptation of its operations to the business plan during a certain period;

• Inclusion of a differentiated and simpler procedural rite for converting the temporary authorization of the Regulatory Sandbox into definitive authorization;

• Equalization of authorization requirements for the start of operations of admitted and occasional foreign reinsurers and elimination of the requirement to maintain an assistant representative in Brazil;

• Institution of restrictions to prevent a new application for registration by a foreign reinsurer that has had its registration canceled ex-officio in the preceding 5 years;

• Authorization for the outsourcing of the representative office of admitted reinsurers; and prohibition from registration of these companies when headquartered in tax havens.

As for the SUSPENSION AND CANCELLATION OF THE AUTHORIZATION FOR OPERATION AND REGISTRATION, the cases of voluntary and ex-officio cancellation were included.

Regarding the CORPORATE CONTROL STRUCTURE OF SUPERVISED ENTITIES AND REINSURANCE BROKERAGE, we highlight the following main changes:

• Insertion of a compliance mechanism, applied to cases where there is no identification of the control group, which consists of the prohibition of distribution of dividends in the first five fiscal years, counted consecutively from the beginning of the operation, except obligatory dividends established by law;

• Permission for direct corporate interest in supervised entities by legal entities and investment funds, whose corporate purpose may encompass other activities, provided that such activities are associated with the main business of the insurance and reinsurance markets;

• Dispensing with the requirement to set up a holding company headquartered in Brazil only to comply with regulatory requirements, aiming to reduce operating costs;

• Determining that investment funds managers must prove the existence and compliance with the respective anti-money laundering and combating of terrorism policies in accordance with the laws of their country of origin.

In addition, the rules for the EXERCISE OF POSITIONS IN STATUTORY OR CONTRACTUAL BODIES have the following modifications:

• Exclusion of the maximum period for prior issuance of a statement by SUSEP regarding the fulfillment of conditions and requirements by those appointed to assume and exercise positions in the supervised market, as regulated by SUSEP Ordinance No. 7.677/2020;

• Change of the period within which the interested party cannot have controlled or managed an entity declared insolvent, or otherwise subject to extrajudicial liquidation, intervention, temporary special administration regime or bankruptcy, which is now 5 years;

• Requirement that, for specific functions, interested parties must provide proof of technical certification for the exercise of such functions, as deemed relevant by SUSEP.

The new Resolution repeals CNSP Resolution No. 19/1978, 1/1980; 1/1981; 15/1991; 17/1992; 23/2000; 53/2001; 79/2002; 101/2004; 142/2005; 160/2006; 220/2010; 248/2011; 330/2015; 373/2019; 387/2020; Articles 3 and 6 of CNP Resolution No. 168/2007; articles 7 and 21 of CNSP Resolution No. 173/2007; CNSP Resolutions No. 220/2010, 08/2011, 330/2015, 373/2019, 387/2020 and Article 3 of CNSP Resolution No. 418/2021.

The new Resolution will come into force on January 3, 2022 and its full text (in Portuguese) can be accessed through this link.

Demarest’s Insurance and Reinsurance team is available to provide any clarifications on the subject.