CVM Instruction No. 388 of April 30, 2003, as amended by CVM Instructions No. 412/04 and 430/06
This is a Free Translation. Any questions arising from the text should be clarified by consulting the original.
Regulates the activity of securities analyst, and establishes the conditions for performance of such activity.
The Chairman of the Brazilian Securities Commission (Comissão de Valores Mobiliários - CVM) makes public that the CVM Board, in a meeting held on the date hereof, in light of the provisions of articles 1, VIII; 8, I and III; 18, I(b), and 27 of Law No. 6385 of December 7, 1976, as per the wording given by Law No. 10303 of October 31, 2001, has RESOLVED to issue the following Instruction:
SCOPE AND PURPOSE
Article 1. Performance of the activity of securities analyst by an individual is regulated by the rules set forth herein.
ACTIVITY
Article 2. The activity of a securities analyst consists of the evaluation of securities investments, in a professional manner, with a view to issuing recommendations, follow-up reports and studies for public disclosure so as to assist in investment-making decisions.
Paragraph 1. The activity of a securities analyst as dealt with in this Instruction may be performed by an individual, on an independent basis or under a relationship with an institution of the distribution system, pension fund, insurance company, legal entity or individual authorized by the CVM to perform the duty of portfolio manager, or any other entity authorized to operate by the CVM, the Central Bank of Brazil, the Supplementary Pension Office, and the Private Insurance Authority.
Paragraph 2. Securities analysts shall be registered with the CVM to perform their activities as provided for in article 10 of this Instruction.
ACCREDITING ENTITY
Article 3. The accreditation of securities analysts is hereby instituted and shall be carried out by a Brazilian non-profit private entity previously authorized by the CVM.
Paragraph 1. The accrediting entity shall:
I – have a code of conduct and professional ethics;
II – monitor the securities analysts’ compliance with the code of conduct and professional ethics dealt with in the preceding item, imposing the following penalties on violators:
(a) warning;
(b) suspension of the accreditation dealt with in the main section of this article; and
(c) cancellation of the accreditation dealt with in the main section of this article.
III – assess, by means of technical and ethical qualification examinations, whether the candidates have the proper skills to perform the activities of a securities analyst, it being understood that each such examination shall be preceded by CVM’s authorization; and
IV – keep on file all the documents supporting the fulfillment of the requirements set forth in this Instruction, and submit such documents to the CVM upon its written request.
Paragraph 2. To grant the accreditation dealt with in the main section of this article, the entity shall require that the candidate fulfill at least the following requisites:
I – the candidate shall hold a university degree from an institution officially recognized in Brazil or abroad;
II – the candidate shall unconditionally adhere to the code of conduct and professional ethics in the manner provided for in article 6 of this Instruction;
III – the candidate shall make the following statements under penalty of law:
(a) that he is not disqualified to hold a position in financial institutions and other entities, the operation of which requires authorization from the CVM or the Central Bank of Brazil, the Private Insurance Authority and the Supplementary Pension Office;
(b) that he was not convicted of any crime under a final and conclusive decision, except in the event of rehabilitation;
(c) that he is not listed in the Central Bank of Brazil’s Register of NSF Checks;
(d) that in the last five (5) years he has not acted as manager of any entity--subject to the control and monitoring of the CVM, the Central Bank of Brazil, the Private Insurance Authority or the Supplementary Pension Office—that, during such period, had its authorization cancelled or was subject to bankruptcy, reorganization (concordata), intervention or extrajudicial liquidation proceedings, or else, subject to a special temporary management system; and
(e) whether he was convicted in the last five (5) years for violation of the legislation inherent to the CVM, the Central Bank of Brazil, the Supplementary Pension Office and the Private Insurance Authority, providing the respective details;
IV – the candidate shall have been approved in the technical qualification examination dealt with in item III of the preceding paragraph.
Paragraph 3. The accrediting entity shall inform the CVM within five (5) days of:
I – the granting of the accreditation, by electronic means, in the format set forth in the exhibit attached to this Instruction;
II – any indicia of violation of the entity’s code of conduct and professional ethics, as well as of any legal and regulatory rules applying to the securities analyst in the discharge of his activity; and
III – the penalties imposed as a result of violations of the entity’s code of conduct and professional ethics.
Paragraph 4. For the purpose of compliance with the provisions of paragraph 2, IV of this article, approval in a qualification examination carried out overseas--provided that such examination has been conducted by an institution with which the Brazilian accrediting entity has entered into a specific convention to that end--is admissible upon the CVM’s prior approval.
RULES OF CONDUCT
Article 4. The analyst shall abide by the principles of probity and good faith, exercising the same care and diligence in evaluating securities as it would exercise in relation to securities inherent to his own business, and shall be liable for any violations or irregularities that may be committed under his management.
Article 5. In any evaluations or recommendations disclosed in writing to the public, including via the world wide web, the analyst shall state:
I – that his recommendations reflect solely and exclusively his personal opinions, and that such opinions were prepared in an independent and autonomous manner, including as regards the institution to which he is linked, if applicable;
II – whether he maintains a relationship with any individual working for the companies whose securities were evaluated in the disclosed report, clarifying the nature of such relationship;
III – whether the institution to which the analyst is linked, if applicable, and the securities investment clubs, portfolios and funds managed by such institution have any direct or indirect ownership interest equal to or higher than one percent (1%) of the capital stock of any of the companies whose securities were evaluated in the disclosed report, or else, are involved in the acquisition, disposal and intermediation of such securities on the market;
IV – whether he owns, directly or indirectly, securities issued by the company evaluated by him, representing five percent (5%) or more of his personal assets, or is involved in the acquisition, disposal and intermediation of such securities on the market;
V – whether he or the institution to which he is linked receives compensation for services rendered or has commercial relations with any of the companies whose securities were evaluated in the disclosed report, or with any individual or legal entity, pooling of funds or corporate body (universalidade de direitos) that represents the same interests of such company; and
VI – whether his compensation or the compensation system applying thereto is pegged to the pricing of any of the securities issued by the companies evaluated in the report, or to the income arising from the businesses and financial transactions carried out by the institution to which he is linked, if applicable.
Article 6. Without prejudice to the provisions of the preceding article, the code of conduct and professional ethics issued by the accrediting entity shall provide at least for:
I – the definition of potential situations of conflicts of interest in the performance of the activity of analyst;
II – the method of disclosure of situations that typify conflict of interest in performing such activity in any evaluations or presentations carried out by such analyst;
III – the commitment to pursue credible and reliable information for use in the evaluations, recommendations and presentations made by the analyst;
IV – the analyst’s duty of independence, including, where applicable, as regards the institution to which he is linked, when making investment recommendations;
V – the rules to be followed by the securities analyst when trading in securities; and
VI – the confidentiality to be observed by the securities analyst.
PROHIBITIONS
Article 7. The securities analyst shall not:
I – issue recommendations to obtain an undue advantage for himself or for another;
II – exercise his activity in violation of the provisions of article 2, paragraphs 1 and 2, or of the rules applicable thereto;
III – omit from his clients and from the market any information on the existence of a situation characterizing conflict of interest in the evaluation of securities; and
IV – trade in the securities evaluated by him, whether for his own portfolio or third-parties’ portfolio managed thereby, from the tenth (10th) business day preceding disclosure to the public of the investment evaluations on a company and its securities up to and including the fifth (5th) business day after such disclosure.
Sole paragraph The prohibition dealt with in item IV of this article shall apply to the institution to which the analyst may be linked, if the respective institution does not maintain third-party funds management segregated from the other activities carried out by the institution.
LIABILITY OF THE ANALYST AND OF THE INSTITUTIONS OF THE DISTRIBUTION SYSTEM
Article 8. In performing his duties, the securities analyst shall be liable for any opinions issued in violation of legal or regulatory rules applicable thereto, without prejudice to the liability of the institution of the distribution system to which he is linked, as applicable, for its omission in the supervision of or undue influence on the analyst’s activity, pursuant to article 9 of this Instruction.
Article 9. Neither the institutions of the distribution system to which the securities analyst may be linked nor the companies evaluated by the analyst shall have any influence on the preparation of recommendations on the application of funds in investments in such a way as to reduce or remove the analyst’s independence in issuing investment recommendations.
REGISTRATION OF A SECURITIES MARKET ANALYST
Article 10. The CVM shall grant the registration of a securities market analyst to the individual accredited with the accrediting entity dealt with in article 3.
Sole paragraph. The CVM may at any time require submission of proof regarding the statements referred to in article 3, paragraph 2, III and, in the event of a statement evidencing the fact set out in item III(e), the CVM may at its discretion deny the application for registration.
Article 11. The registration as a securities market analyst shall be requested by electronic means to the CVM by the interested party, and shall be issued by the Institutional Investor Relations Bureau (Superintendência de Relações com Investidores Institucionais) within thirty (30) days from the date of application.
Paragraph 1. If, at the end of the period set forth in this article, the CVM has not expressed itself to the contrary, and provided that all the formalities spelled out in this Instruction have been fulfilled, the application for registration shall be presumed approved.
Paragraph 2. The thirty (30)-day period may be interrupted a single time, in the event the CVM requests that the interested party provide additional information, whereupon a new thirty (30)-day period shall start running as from the date of compliance with the requirements.
Paragraph 3. A period of not more than sixty (60) days from receipt of the respective correspondence shall be granted for fulfillment of the requirements, on pain of denial of the application.
DENIAL OF THE APPLICATION AND APPEAL
Article 12. Denial of the application for registration of a securities market analyst with the CVM shall be informed in writing to the interested party through a substantiated decision. All the respective supporting documents shall be made available to such party.
Sole paragraph The Bureau’s decision denying the application for registration may be appealed to the CVM Board, pursuant to prevailing regulations.
CANCELLATION AND SUSPENSION OF REGISTRATION
Article 13. Registration as a securities market analyst with the CVM may be cancelled, regardless of an administrative inquiry, in which case the analyst shall be ensured the right to full defense and adversary proceedings:
I – if the documents or statements submitted to obtain the registration are found to be false; or
II – if, as a result of a supervening fact duly substantiated, it is evidenced that the person registered by the CVM no longer fulfils any of the requisites and conditions set forth in this Instruction for accreditation with the accrediting entity and granting of the registration.
Article 14. The CVM may suspend or cancel the registration dealt with in this Instruction upon request of the interested party.
Paragraph 1. The suspension of registration shall be requested to the CVM for a period not exceeding twelve (12) months, renewable no more than two times.
Paragraph 2. The CVM shall give notice with respect to suspension of the registration to the accrediting entity, which shall exempt the analyst from payment of any charges or fees during the suspension period.
Paragraph 3. During the suspension period, the analyst shall be prevented from performing the activity, and shall be released from compliance with the obligations set out in this Instruction, as well as from the tax obligations toward the CVM.
INFORMATION
Article 15. The securities analyst shall inform the CVM by electronic means of any change in the data record within fifteen (15) days of the occurrence of the fact that gives rise to such change.
PENALTIES
Article 16. For the purposes of article 11, paragraph 3 of Law No. 6385 of December 7, 1976, the following events shall constitute a serious fault:
I – obtaining of registration with the CVM for the performance of the activity of securities analyst in reliance on false statements or documents;
II – failure to observe the prohibitions spelled out in article 7, I, II, III and IV and its sole paragraph, as well as that contained in article 9;
III –failure to comply with the duties established in article 3, paragraph 1, I; and
IV – making of false statements for the purpose of complying with the requirements set out in article 5 of this Instruction.
Article 17. The securities analyst registered with the CVM who fails to submit to the CVM the information stipulated in this Instruction or to keep his registration updated pursuant to article 15 of this Instruction, shall be subject to cancellation of his registration with the CVM, without prejudice to the imposition of the penalties provided for in article 11 of Law 6385/76.
TEMPORARY PROVISIONS
Article 18. The securities analyst shall have until March 31, 2005 to obtain his accreditation with the accrediting entity referred to in article 3 of this Instruction, as well as his registration with the CVM.
Article 19. The accrediting entity may, up to March 31, 2005, on an exceptional basis, dispense with the fulfillment of the requirement provided for in article 3, paragraph 2, I and IV, provided that the analyst has been provenly performing this professional activity on the securities market for at least two (2) years, during the five (5) years immediately preceding the date of effectiveness of this Instruction.
Article 20. This Instruction comes into force ninety (90) days after the date of its publication in the Official Gazette of the Federal Executive.
Original signed by
LUIZ LEONARDO CANTIDIANO
Chairman
EXHIBIT
SECURITIES ANALYST
INDIVIDUAL
I – DATA RECORD
Name:
CPF:
(Area code) Telephone/Fax:
Home address:
District:
Zip Code:
City:
State:
Mailing Address (to be publicly available):
District:
Zip Code:
City:
State:
(Area code) Telephone/Fax:
E-mail:
II – SUPPLEMENTARY INFORMATION
Name and CNPJ of the Accrediting Institution:
If applicable, name and CNPJ of the institution to which he is linked: