Publicado em 01/07/2020

New regulations relating Anti- Money Laundering applicable to Commercial Registries and Entities regulated by the Brazilian Securities and Exchange Commission

The Anti-Money Money Laundering Law provides mechanisms for the prevention, detection and punishment of violations (Law No. 9,613/1998, as amended). Entities and individuals operating in certain sectors are required to adopt policies and procedures for the prevention of violations and reporting of suspicious transactions infractions, including the Commercial Registries. On July 1st, 2020 the Normative Ruling No. 76 (“IN No. 76”) issued by the National Department of Business Registration and Integration (“DREI”) which regulates such obligations shall come into force. The Normative Ruling No. 617 (“IN No. 617”) issued by the Brazilian Securities and Exchange Commission (“CVM”) on its turn shall come into force on October 1st, 2020 after the postponement of its validity pursuant to Deliberation CVM No. 848.

IN nº 76

In brief, the IN No. 76 provides that the Commercial Registries are now required to (A) create and maintain effective internal policies, procedures and controls; (B) monitor records related to transactions that may be considered suspect; and (C) report suspicious transactions.

A. Adoption and implementation of compliance programs

IN No. 76 establishes that the Commercial Registries must create and implement internal procedures and controls that aim to prevent money laundering and terrorism financing, which shall encompass, at least, procedures and controls addressed to:

(a) Identification of persons interested in having their respective corporate acts registered and others involved and the maintenance of updated records (requirements existing since Decree No. 1,800/96), as well as the final beneficiaries of the interested persons and others involved (following the same procedures of the Normative Ruling No. 1,863/18, issued by the Brazilian Federal Revenue (“RFB”);

(b) Identification of reportable situations that can to the Brazilian Financial Intelligence Unit (Council for Financial Activities Control – “COAF”);

(c) Identification of politically exposed persons (“PEP”) under the terms defined in the COAF regulations: currently listed by COAF under Resolution No. 29/17;

(d) Identification of the existence of determinations made by the United Nations Security Council regarding the freeze of assets owned by individuals and/or legal entities submitted to the sanctions imposed by Law No. 13,810/2019: DREI shall inform the Commercial Registries about the determinations of the United Nations Security Council which it becomes aware.

B. Duty to Monitor Transactions

IN No. 76 provides the following indicative list of transactions that must be monitored by the Commercial Registries:

(a) the incorporation of more than one legal entity by the same individual or entity or that is comprised by the same administrator or attorney-in-fact;

(b) registration of a legal entity with one or more partners, attorneys-in-fact or administrators domiciled in locations considered as tax havens, under the terms defined by the Special Bureau of the Brazilian Federal Revenue;

(c) registration of a company in which a minor, legally disable person or a person over eighty (80) years old participates;

(d) registration of legal entity integrated or related to a PEP, under the terms defined by the COAF Resolution;

(e) registration of a legal entity with corporate capital that is outrageous incongruous or incompatible with its corporate purpose;

(f) reactivation of old business records with new partners and new corporate purpose;

(g) transactions involving legal entities or individuals domiciled in jurisdictions considered by the Financial Action Task Force against Money Laundering and Terrorism Financing (”GAFI”) to be of high risk or with strategic deficiencies in relation to prevention and combating money laundering and terrorism financing, according to communications published by COAF;

(h) registration of different legal entities incorporated at the same address, without the existence of an economic fact basis;

(i) registration of legal entity which corporate capital is paid-up by public securities and/or other doubtful valuated assets;

(j) drastic reductions of corporate capital without an economic basis;

(k) full or significant replacement of the corporate structure, especially when the new partners appear to be interposed persons;

(l) frequent changes in the corporate structure or in the corporate purpose, without apparent justification; and

(m) registrations in which the identification of the final beneficiary is impracticable or considerably difficult.

C. Reporting Obligation

Finally, IN No. 76 provides that if, in accordance with its internal policies, the Commercial Registry concludes that certain filing request refers to a suspicious transaction, it must report to COAF within 24 hours. The content and the very existence of the communication to COAF shall be protected by confidentiality, so that the interested party on filing the corporate act will not be made aware and the communication will not prevent the filing of the act.

If the Commercial Registry does not identify suspicious transactions during the calendar year, its Chairman shall send a statement of non-existence until January 31st of the following year.

IN nº 617

Likewise, IN No. 617 provides that (a) individuals and legal entities that render services in the securities market, on a temporary or permanent basis, services related to distribution, custody, intermediation or management of portfolios, (b) entities that manage organized markets, entities that operate in the infrastructure of the financial market; (c) independent auditors and (d) other entities subject to specific regulation issued by CVM (such as representatives of non-resident investors and securities companies) (“Entities Subject to CVM”) are now required to (A) develop and establish an anti-money laundering and financing of terrorism policy, internal risk assessment procedures and internal controls; (B) identify and maintain internal records relating clients and ultimate beneficial owners; and (C) monitor, review and report transactions and situations set forth in CVM´s regulation.

IN No. 617 provides that Entities Subject to CVM must appoint a statutory officer liable for anti-money laundering compliance. The statutory officer shall, among other obligations, issue an annual report relating the internal risk assessment of money laundering and terrorism financing, that shall be submitted to the high-level management bodies of the respective Entity Subject to CVM, duly appointed in the its policy, until the last business day of April.

The report shall, in summary, (i) list all products offered, services rendered, respective distribution channels and trading and registration environments in which the Entities Subject to CVM operate, classifying them minimally into low, medium and high risk; (ii) classify the entity’s respective clients risk level, segmenting them minimally into low, medium and high risk; (iii) identify and analyze risk situations; (iv) if applicable, analyze the performance of the agents, independent investment agents or relevant hired service providers; and (v) contain a table related to the previous year containing (a) the consolidated number of transactions and atypical situations detected, segregated by each hypothesis; (b) the number of reviews performed; (c) the number of suspicious transactions reported to the Financial Intelligence Unit; and (d) the date of report of the negative statement, if applicable.

The team of the Anti-corruption, Compliance and Internal Investigations practice at Dias Carneiro Advogados is entirely available for any clarification required and to assist with this subject.