Brazil: Santos Bevilaqua Newsletter – December 2017 And January 2018

Last Updated: 8 February 2018
Article by Santos Bevilaqua Advogados

INSURANCE AND OPEN SUPPLEMENTARY SOCIAL SECURITY

1) BILL 3139/2015

The Special Private Insurance Commission held on November 9 the second public hearing to discuss the Bill 3139/15, proposed by representative Lucas Vergílio (SD political party-State of Goiás), which provides for the National Private Insurance System.

According to the bill, only corporations or cooperatives may operate in the field of private insurance and provided that authorized by the entity that supervises the insurance market.

The bill also prohibits associations, cooperatives, benefits clubs, individuals and entities from executing insurance contracts or selling products providing coverage, reimbursement, and indemnity for any purposes, including those similar to damage or personal insurance.

As already indicated in other information reports, the Bill is a good initiative. However, the need to reaffirm that a governmental authorization is required for an entity to operate as an insurer is regrettable. Such rule arises from the legislation currently in effect, and it has been consistently disobeyed by associations and other types of entities.

2) BILL 29/2017

The Constitution, Justice and Citizenship Commission of the Federal Senate held, on 12/7/2017, a public hearing to discuss the Bill 29/2017, which provides for the insurance contract.

João Marcelo dos Santos, founding partner of Santos Bevilaqua Advogados, represented Fenaber – Federação Nacional das Empresas de Resseguro (National Association of Reinsurers) at the hearing and emphasized that Fenaber considers the Bill harmful to the insurance and reinsurance market, especially because (i) it makes large and small insureds equivalent, (ii) it improperly interferes with several aspects of the reinsurance contract and the reinsurance activity, and (iii) it improperly interferes with loss adjudication. To watch the recording of the session of the Commission, click here.

3) CALL FOR SUSEP PUBLIC INQUIRY No. 018, OF 12/14/2017

The Superintendent of the Private Insurance Superintendence - SUSEP submitted to public inquiry the draft of SUSEP Circular that provides for farming insurance and animal insurance. Those interested may send, within 45 days from the call, comments and suggestions via e-mail tocoset.rj@susep.gov.br, and the standard table that must be used is available on SUSEP page on the Internet.

4) Private Insurance Superintendence/Conduct Supervision Board SUSEP/DICON ELECTRONIC CIRCULAR LETTER No. 003, OF 11/15/2017

SUSEP informs, through this Circular Letter, that the Financial Action Task Force - GAFI/FATF published announcements listing jurisdictions with deficient strategies as to the systems for Prevention of Money Laundering and Fight Against Terrorism Financing (PLD/CFT).

In the Letter, the Agency recommends the responsible companies or entities to take measures related to internal control procedures to assess risks regarding underwriting, contracts with third parties or other related parties, development of products, private negotiations, and transactions involving assets.

The GAFI/FATF announcements were translated into Portuguese by the Council for Financial Activities Control [Conselho de Controle de Atividades Financeiras - COAF] and are available at http://www.coaf.fazenda.gov.br/linksexternos/comunicado-do-gafi-de-13-de-novembrode-2017  http://www.coaf.fazenda.gov.br/linksexternos/aprimorando-a-observancia-global-ald-cftprocesso-em-curso-2013-03-de-novembro-de-2017

The original English versions are available at http://www.fatf-gafi.org/publications/high-riskandnoncooperativejurisdictions/documents/public-statementnovember-2017.html  http://www.fatf-gafi.org/publications/high-riskandnoncooperativejurisdictions/documents/fatf-compliancenovember-2017.html

5) National Federation of General Insurance - FENSEG CREATES THE CORPORATE INSURANCE STRATEGY COMMISSION

FenSeg has a new technical commission: the Corporate Insurance Strategy Commission - CESC, created to meet the demand for corporate insurance, which must comply with a number of rules and world programs.

Among the targets of the Commission are the reinforcement of the communication channels among the insurance market, the reinsurance market, the supervisor, and other players of the industry and the discussion about the risks and opportunities for the Corporate Insurance segment, which involve significant amounts and differentiated characteristics. The Commission will have an opportunity to analyze the Bill 29/2017, mentioned above.

The Commission will meet every month, always on the third Tuesday of the month, from 9:30 AM to 11:30 AM, in the head office of SINDSEG/SP, in São Paulo.

6) National Council of Private Insurance - CNSP RESOLUTION No. 351, OF 12/20/2017

Amends articles 47 and 49 of CNSP Resolution no. 332, of December 9, 2015, to adjust the premiums of the DPVAT (Insurance for Personal Damage Caused by Automobiles), according to the category, and the transfer rates of the premiums collected.

7) CNSP RESOLUTION No. 352, OF 12/20/2017

This Resolution provides for the rules and criteria for the funeral insurance offered by insurers. In spite of the legal provision on such product that is already being sold in the market, there was not a specific regulation for its coverages and peculiarities. The coverages will guarantee the beneficiary(ies) an indemnity, limited to the amount of the insured capital under the contract, which will be a reimbursement for expenses or services, provided that related to the funeral.

According to the rule, which is excessively detailed, its provisions do not apply to (i) compulsory insurance, (ii) coverages of indemnities other than those paid as reimbursement and/or service provision, (iii) funeral services paid directly to undertakers, and (iv) funeral assistance plans regulated by Law no. 13261/2016.

The last ones, provided in Law no. 13261/2016, have already been commented in our reports; these comments are available at:

  • Portuguese versions: Information Report of March 2016 and of September 2017.
  • English versions: Information Report of March 2016 and of September 2017.

CNSP Resolution no. 352/2017 also determines that, except for the insurance contracts in effect, the insurers must adjust to the rule within up to 90 days from its publication date.

8) CNSP RESOLUTION No. 353, OF 12/20/2017

Amends CNSP Circular no. 168, of December 17, 2007, and makes other provisions.

This expected Resolution eliminated (i) the limits for risk cessions among Brazilian cedants and companies related to, or in a, same financial conglomerate based abroad; and (ii) the market reserve in favor of local reinsurers. Given the relevance of the changes, Santos Bevilaqua Advogados prepared a special information report on the Resolution, in Portuguese and an English version.

9) CNSP RESOLUTION No. 354, OF 12/20/2017

Amends CNSP Resolution no 336/2016, which sets rules and criteria for car popular insurance and permission for the use of pieces supplied by disassembly companies, according to the specific law, to recover damaged vehicles covered by insurance and makes other provisions. According to the amendment, the insurers may offer this product only with the option of authorized network as a choice to repair damaged vehicles. From now on, the insurer may establish a minimum age for vehicles to be covered under a popular insurance.

The new rule also establishes that promotions and ads related to those insurance policies must be expressly authorized and supervised by the insurer, subject to the contractual conditions and the technical note submitted to SUSEP.

According to SUSEP Superintendent, Joaquim Mendanha de Ataídes, the purpose of the product is to increase the offer of car insurance to consumers that have older cars and attract consumers that do not have a financial condition to buy the traditional product. ―Now that the market may offer a product that offers only the option of repair in an authorized network of repair shops, the likelihood is that the insurers will be better able to reduce and control their costs and that more companies will sell the auto popular'‖, explained Mendanha, pointing out that, due to the approved changes, SUSEP expects a reduction in the insurance consumer's final cost. ―The product is also an important tool to fight the marginal market‖, he emphasized.

10) CNSP RESOLUTION No. 355, OF 12/20/2017

Provides for Contractual Conditions of the Compulsory Civil Liability Insurance of Air Transportation Companies - RETA. The insurers that wish to sell the insurance addressed in the Resolution must previously submit to SUSEP their tariff credit in an actuarial note, according to the minimum structuring provided in a specific regulation.

After 180 days of the publication of the Resolution, the insurers will not be allowed to execute new contracts that are not in accordance with it, and the plans that are currently sold must be adjusted to the new rule within that period, upon the opening of a new administrative procedure.

The Resolution also prohibits the insurers from changing the insurance conditions should they restrict rights or create a burden for the insured, including additional coverages and/or specific clauses conflicting with the rules in effect.

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