Advanced Search

Provisional Measure No. 2,139-65, 26 April 2001

Original Language Title: Medida Provisória nº 2.139-65, de 26 de Abril de 2001

Subscribe to a Global-Regulation Premium Membership Today!

Key Benefits:

Subscribe Now for only USD$40 per month.

PROVISIONAL MEASURE NO. 2,139-65, OF April 26, 2001

Establishes mechanisms objecting to encouraging the reduction of the state public sector presence in the banking financial activity, it has on the privatization of financial institutions, and gives other arrangements.

THE PRESIDENT OF THE REPUBLIC, in the use of the assignment that gives it the art. 62 of the Constitution, adopts the following Provisional Measure, with force of law:

Art. 1º The reduction of the state public sector's presence in the banking financial activity will be encouraged by the mechanisms established in this Interim Measure, and by standards downloaded by the National Monetary Council, within the framework of its competence, preferentially upon privatization, extinction, or transformation of financial institutions under control unit of Federation Unity in financial institutions dedicated to the financing of fixed and spin capital associated with projects in the Country, called foment agencies.

§ 1º The extinction of financial institutions to which the caput refers article you can give yourself through processes of incorporation, merger, spin-off, or any other form of legally admitted societary reorganization.

§ 2º The fomenting agencies, existing on March 28, 2001, should comply with the provisions of this article, within the time set by the National Monetary Council, remaining regulated by that Colegiate and submitted to the provisions of Law No. 6,024 of March 13, 1974.

Art. 2º The adoption of the appropriate measures to each concrete case shall give the sole discretion of the Union, upon request of the respective controller, met to the conditions set out in this Interim Measution.

Art. 3º For the purposes of this Interim Measure, may the Union, at its sole discretion:

I-acquire the control of the financial institution, exclusively to privatize it or extinguish it;

II-finance the extinction or transformation of financial institution in non-financial institution, when carried out by its respective controller, inclusive of those submitted to special regimes;

III-financing the necessary prior adjustments for privatization of the financial institution;

IV-acquire contractual credits that the financial institution detains against its controller and entities by this controlled and refinance the credits thus acquired;

V-in exceptional character and met the conditions specified in the art. 7º, finance partially sanitation program of the financial institution, which will necessarily contemplate its capitalization and changes in its management process capable of ensuring its professionalization;

VI-render guarantee the financing granted by the Central Bank of Brazil;

VII-fund the establishment of foment agencies for the Federation Units to firm up financing contracts or refinancing arising from this Measure Provisional.

§ 1º The adoption of the measures provided for in this article shall be preceded by the authorizations which are necessary in the legislation of the respective Federation Unit.

§ 2º The credits of which deals with the inciso IV of this article will be those existing on March 31, 1996, add to the contractual interest pro rata die up to the date of the acquisition, in accordance with the financial conditions and charges provided for in the original contracts.

§ 3º The refinancing of which treats the inciso IV of this article will be preceded by the assumption, by the Federation's Unit, of the liability debts of the entities by it controlled.

Art. 4º The funding of the necessary prior adjustments to the privatization of the financial institution, of which it treats the inciso III of the previous article, granted by the Union or by the Central Bank of Brazil, is restricted to the cases where there is:

I- legislative authorization of the Federation's Unit for:

a) privatization, within a time limit agreed with the Union, of the respective financial institution;

b) the use of the proceeds of privatization in payment of the financing or refinancing of which they treat the incisos III and IV of the preceding article or, at the discretion of the Union, of other debt to this;

c) when it is the case, the offering in guarantee of the shares of its property in the capital of the financial institution to be privatized; or

II-the dispropriation in favor of the Union of the shares of the social capital of the financial institution, in the form of the Decree-Law No. 2,321, of February 25, 1987.

§ 1º The cash availabilities of States, the Federal District, Municipalities and bodies or entities of the public power and companies by them controlled will be able to be deposited in financial institution submitted to the privatization or the acquiring financial institution of its shareholding, until the end of the financial year 2010.

§ 2º The transfer of the cash availabilities to the official financial institution, in the hypothesis that it treats the preceding paragraph, should follow schedule approved by the Central Bank of Brazil, depending on criteria established by the National Monetary Council.

Art. 5º The financing of which it treats this Provisional Measure, when granted by the Union, they will be paid in up to three hundred and sixty monthly and successive instalments, calculated on the basis of Table Price, winning the first thirty days after the signing of the contract and the following on equal day of the months subsequent, observed the following conditions:

I-interest calculated and debited monthly, at the minimum rate of six percent a year, on the debtor balance previously updated;

II-update calculated and debited monetary monthly, based on the variation of the General Price Index-Internal Availability (IGP-DI), released by the Getulio Vargas Foundation, or other index that comes to replace it.

§ 1º The obligations corresponding to the service of the financing granted by the Union, pursuant to this Provisional Measure, may be computed jointly with the obligations relating to the refinancing of debts provided for by Law No. 9,496 of September 11 of 1997, specifically for the purposes of applying the maximum commitment limit of the Real Net Income-RLR referred to in art. 5º of the cited Law.

§ 2º Cessa the application of the provisions of the preceding paragraph if, eighteen months of the date of the signing of the refinancing contract referred to in Law No. 9,496 of 1997, hold the Unit of the Federation the control of any financial institution except foment agency.

§ 3º The provisions of the preceding paragraph shall apply only to resources intended for institutions that remain controlled by the Unit of the Federation.

§ 4º For compliance with the provisions of this article, the Union may contract with federal public institution the services of financial agent for celebration, monitoring and control of financing contracts or Refinancing, the remuneration of which will be borne by the Federation Units.

Art. 6º The Central Bank of Brazil, in the financing that it grants, for the purposes of which it treats this Provisional Measure, will be able to:

I-counting exclusively with the guarantee of the Union;

II-accept, as warranty, securities or rights relating to operations of liability of the National Treasury or entities of the Federal Public Administration indirect.

Single paragraph. Except in cases where the guarantees that it treats the inciso II of this article are represented by securities of the federal furnished public debt, traded in competitive auctions, the nominal value of such guarantees is expected to exceed in at least twenty per cent the guaranteed amount.

Art. 7º In the hypotheses of the incisos III and V of the art. 3º, when there is no transfer of shareholding, or, detaining the Federation's Unit the majority of the social capital in more than one financial institution, remanescer some financial institution under its control, the participation of the Union and the Central Bank of Brazil will not be able to exceed fifty percent of the necessary resources, and the Federation's Unit shall adopt, among others, the following measures, involving, in conjunction or in isolation, resources in amount at least equivalent to that of the Union's participation:

I-early discharge of debts of the controller and of entities by this one controlled with the financial institution;

II-assumption of institution debts financial close to third parties, existing on March 31, 1996 and registered in balance sheet, including liabilities of an actuarial or labor nature;

III-capitalization of the financial institution.

Para. single. The funding of which treats the inciso V of the art. 3º depends, still, on favorable manifestation of the Central Bank of Brazil, until December 5, 1997, as to the state's proposal for the fulfilment of the willing caput.

Art. 8º When the Union participates exclusively by the use of the envisaged in the inciso IV of the art. 3º, the acquisition of the credits will be conditional on that there is the competent legislative authorization for the privatization or extinction of the financial institution or its transformation into non-financial institution, restrained the provisions of the single paragraph of this article.

Single paragraph. In case the financial institution holder of the credit does not have its transferred share control nor is it extinguished, or turned into non-financial institution, the refinancing contract is expected to provide for delivery, by the Federation Unit, of privatizable assets, accepted by the Union, in amount equivalent to, at a minimum, fifty percent of the total refunded, for the purposes of later amortization.

Art. 9º In the cases of which they treat art. 7º and the single paragraph of the art. 8º, the adoption of the measures authorized in this Provisional Measure will depend still on the decision of the National Monetary Council, to which it will give in the view of:

I-approval, by the Central Bank of Brazil, of the sanitation project of the financial institution that necessarily includes its capitalization and changes in its management system capable of ensuring its professionalization;

II-assent of the Ministry of the Ministry's National Treasury Board Secretariat Farm as to the compatibility of the fiscal situation of the controlling state with the effort required by the sanitation project of the financial institution.

Art. 10. The Union shall pay for the acquisitions of control and credits and shall grant the financing of which it treats the art. 3º with National Treasury securities or upon securitization of the obligations, with a bailout deadline and interest set in act of the Minister of State for Finance, listened to the Ministry of Planning, Budget and Management.

Single paragraph. The National Treasury securities issued pursuant to the caput of this article, when held by financial institutions, may be exchanged for issuance securities of the Central Bank of Brazil, under conditions to be established by the Board National Monetary.

Art. 11. For the purpose of the provisions of paragraph (b) of the inciso I of the art. 4º, the disposal of the financial institution shall repass to the National Treasury, in up to five business days, the values received in current currency or in securities of the federal government debt.

Single paragraph. Securities and credits not understood in the caput of this article, admitted as a means of payment of the disposal of the financial institution, shall be replaced, by the divestant, by the securities of the federal public debt, for the purpose of repassing the National treasure.

Art. 12. On the hypothesis of the inciso II of the art. 4º, the net result of the privatization of the financial institution shall be used by the Union in the full or partial settlement of the financing or refinancing granted on the basis of this Interim Meas-tion.

Art. 13. It may be exercised by legal person, at the discretion of the Central Bank of Brazil, the management of financial institutions that have their control acquired in the form of the art. 3º, inciso I, as well as those who have their actions misappropriated, as per the provisions of the Decree-Law No. 2,321, of 1987.

Art. 14. The funding or refinancing granted on the basis of this Provisional Measure should rely on appropriate warranties or countermeasures, which will necessarily include the binding of own revenues and the resources of which they treat the arts. 155, 157 and 159, inciso I, letter "a", and inciso II, of the Constitution, as well, when it is the case, representative actions of the financial institution's controlling shareholder control.

Art. 15. The financing contracts or refinancing of which it treats this Interim Measure shall provide, in addition to the guarantees and countermeasures referred to in the preceding article:

I-being the National Treasury authorized to withdraw, in the event of inadimplement, against the depository bank accounts of the own revenues and resources of which it treats the previous article, the amount of unpaid values, with the legal and contractual accruals;

II-that their payments arising shall not be subject to limits set forth in law, resolution or regulation subsequent to their conclusion;

III-which, in the hypothesis of non-transfer of the actuary control of the institution or of non-processing into non-financial institution, at least fifty percent of the dividends by it distributed to the controller will be used for the amortization of the financial obligations provided for in the contract.

Art. 16. The sole discretion of the Union, shall be received goods, rights and shares of ownership of Federation Unit in dation in payment of the debts incurred in the form of this Interim Measure.

Single paragraph. The goods, rights and shares will be accepted at the market price; when there is no market price, the price will be established on the basis of assessment conducted by three independent consultants hired by the parties.

Art. 17. Occurring impunctuality in the payment of financing or refinancing of which it treats this Provisional Measure, the debtor's Federation Unit will pay, from the maturity of the obligation, financial burdens equivalent to the average cost of capturing the National treasure, increased from one percent of a percent to the month, incidents over the amount arrears, without prejudice to the remaining legal or contractual cominations.

Art. 18. The financing contracts or refinancing arising from this Interim Measentate shall be concluded by June 30, 2000, with the exception of the relative inciso V of the art. 3º, whose term of celebration was exhausted on March 31, 1998.

Single paragraph. The financing or refinancing pertaining to the inciso I of the art. 3º shall only be granted to the States which shall enter, by June 20, 2000, together with the Central Bank of Brazil, under the conditions by this determined, commitment to management of the financial institution, which shall vigorate up to the date of signature of the respective contract.

Art. 19. Observed the provisions of the following article, the privatization of financial institutions that have their control acquired on the basis of this Provisional Measure, of those that have their actions disowned, as per the provisions of the Decree-Law No. 2,321, of 1987, and from other financial institutions included in the National Disestatization Program, will be made upon public offer, ensured equal conditions to all competitors.

Art. 20. The privatization or capitalization programs provided for in this Provisional Measure will be able to contemplate the participation of the employees of the financial institutions object of the mentioned programs.

Art. 21. The temporary special administration arrangements to which state financial institutions are submitted may be extended, by up to one hundred and eighty days, in addition to the deadlines set out in the Decree-Law No. 2,321 of 1987, if the respective Unit of the Federation has signed, with the Federal Government, protocol for the implementation of the measures provided for in this Provisional Measure, or if the financial institution is in the process of privatization, duly adjusted with the Central Bank of Brazil.

Single paragraph. The extension to which the caput of this article is concerned can be made for up to five hundred and forty days, if the respective Federation Unit has firmed, with the Union or with federal financial institutions, loan agreement to sanitation of state financial institution, within the framework of the Restructuring Support Program and the Fiscal Adjustment of States.

Art. 22. In the process of reducing the state public sector's participation in banking financial activity, the Union will be able to authorize the federal financial institutions to take on the liabilities held with the public by the financial institutions state.

§ 1º The Union shall ensure the federal financial institution that assumes the liabilities to the public the equalization of the existing difference between the value received from the state financial institution at the time of the operation and the value to be paid to the Central Bank of Brazil by the resources obtained in line of specific funding to support the liabilities assumed.

§ 2º The Union's claims arising from the application of the provisions of the previous paragraph are the responsibility of the Controller, by virtue of the provisions of the Laws nthe 6,024, of March 13, 1974, 6,404, of December 15, 1976, and 9,447, of March 14, 1997, and may the Union refinance the debt on the terms of Law No. 9,496, 1997.

§ 3º The equalization of which it treats § 1º will observe the envisaged in the art. 10.

Art. 23. Law No. 9,496, 1997, goes on to invigorate with the following amendments:

" Art. 1º Stay the Union, within the framework of the Restructuring Support Program and the Fiscal Adjustment of States, authorized, until May 31, 2000, to:

...................................................................................................................................

II-take on the loans taken by the states and the Federal District next to the Federal Economic Box, with amparo in Resolution No. 70 of December 5, 1995, of the Federal Senate, as well as, at the sole discretion of the Federal Executive Power, other debts whose refinancing by the Union, pursuant to this Act, has been authorized by the Federal Senate until June 30, 1999;

...................................................................................................................................

IV-take over the furnished public debt issued by states and the Federal District, after December 13, 1995, for payment of judicial precatories, pursuant to art. 33 of the Act of the Transitional Constitutional Provisions;

V-refunding the claims arising from the assumption to which the incisors I and IV refer to, together with credits titled by the Union against the Federation Units, these the sole discretion of the Ministry of Finance;

...................................................................................................................................

para. 2º They shall not be covered by the assumption to which the incisos I, II and IV are referred to, nor by the refinancing to which the inciso V refers to:

...................................................................................................................................

d) the mobiliary debt in power of the issuer itself, even if by intermediate of liquidity fund, or which has been put on market after December 31, 1998.

§ 3º The operations authorized in this article shall link to the establishment, by the Federation Units, of the Program of Restructuring and Fiscal Adjustment, agreed with the Federal Government.

...................................................................................................................................

§ 5º Atended to the requirements of the preceding paragraph, may the Minister of State for Finance, to enable the effective assumption referred to in the inciso I of this article, to authorize the conclusion of contracts of promise of the assumption of the referred to obligations.

§ 6º The credit corresponding to the assumption referred to in the inciso II, in the part concerning funds of contingencies of state banks, constituted in the scope of the sector's presence reduction programme state public in banking financial activity, may, at the discretion of the Minister of State for Finance, be incorporated into the debtor balance of debt restructuring contracts, concluded pursuant to this Act, when the use of the proceeds deposited in the respective funds.

§ 7º The possible difference between the assumption referred to in the preceding paragraph and the balance presented in the respective funds may, at the discretion of the Minister of State of the Finance, be incorporated, in up to twelve months, with remuneration up to the date of incorporation by the change in the adjusted average rate in the daily financing ascertained in the Special Settlement and Custody System (SELIC) released by the Central Bank of Brazil, to the balance debtor of the debt restructuring contracts, concluded pursuant to this Act. " (NR)

" Art. 3º ..............................................................................................................

...................................................................................................................................

§ 1º For ascertaining the refunded value relative to the furnished debt, with the exception of the one referred to in the inciso IV of the art. 1º, the basic financial conditions set out in the caput will be able to retroact until September 30, 1997.

...................................................................................................................................

§ 6º The non-establishment of the Program within the time set in the contracts of refinancing, or the unfulfillment of the targets and commitments set out therein, will imply, while not established the Program or during the period in which it lasts, as the case may be, without prejudice to the remaining paced cominations in the refinancing contracts, the replacement of the financial burden mentioned in this article by the average cost of capping the federal furnished debt, plus one percent, and the elevation by four percentage points of the commitment established on the basis of art. 5º.

§ 7º The application of the provisions of the preceding paragraph, with regard to the disfulfillment of the targets and commitments set out in the Programme, may be reviewed by the Minister of State for Finance in the view of justification substantiated by the State.

§ 8º The amount relating to the benefits accrued between the date of signing of the refinancing contract and that of its effectiveness could be parceled up to up to thirty six monthly instalments and consecutive ones, by the Constant-SAC Amortization System, with charges equivalent to the SELIC rate, winning the first in the first due date of the refinancing contract benefits that occur after the effectiveness of the contract and the remaining ones, on the same subsequent dates, limited the last instalment to November 30, 2002.

§ 9º The benefits referred to in the preceding paragraph are not subject to the limit of commitment to which the art relates. 5º.

§ 10. The possibility of parceling of which it treats § 8º only applies to contracts that have been firmed up to December 31, 1998. " (NR)

" Art. 6º For the purposes of application of the limit set out in art. 5º, may be deducted from the limit ascertained the expenses effectively carried out in the previous month by the refunded, corresponding to the services of the following obligations:

...................................................................................................................................

VII-debts of which treat the incisos I and II, of entities of the Indirect administration, which is formally assumed by the state until December 31, 1997;

VIII-from state financial institutions to with the Central Bank of Brazil, which are formally assumed by the State until 15 of July 1998.

...................................................................................................................................

§ 3º The limit of commitment established in the form of this article, as of 1º June 1999, will be maintained until the values posteredin the form of the preceding paragraph are fully settled.

.......................................................................................................................... " (NR)

" Art. 7º-A. The payment of the remaining debtor balance on November 30, 1998 in the open graphics accounts pursuant to the refinancing contracts concluded under this Act, at the discretion of the Ministry of Finance, may be extended to November 30 of 2000, by staying the Union authorized, in this act, to charge, on that parcel, charges equivalent to the average cost of capturing the internal furnished debt of the Federal Government.

§ 1º At the discretion of the Ministry of Finance, the balance remaining debtor of the graphic account of which it treats the caput can be parceled in up to thirty six monthly and consecutive installments, by the Constant-SAC Amortization System, with charges equivalent to the SELIC fee, winning the first in the first due date of the instalments of the refinancing contract that occurs after the formalization of the installment provided in this paragraph and the remaining ones, on the subsequent dates, limited the last instalment to November 30, 2002.

§ 2º The resources generated by the disposal of the goods, rights and shares delivered by the Federation Units to the Union for the purposes of extraordinary amortization of the refinancing contracts concluded in the form of this Act will be, mandatorily, intended for the amortization or liquidation of the installment provided for in the preceding paragraph.

§ 3º The benefits referred to in § 1º are not subject to the limit of commitment to which the art relates. 5º.

§ 4º The provisions of this article shall not preclude the sanctions arising from the defulfillment of any other contractually foreseen obligations. " (NR)

" Art. 7º -B. It applies to the value corresponding to the extraordinary amortization (graphic account) generated on the occasion of the effectiveness of the contract relating to the refinancing of the debt referred to in the inciso IV of the art. 1º, observed the percentage and conditions already defined in the refinancing contracts signed with each Unit of the Federation, the provisions of the preceding article. " (NR)

Single paragraph. The financial effects arising from the provisions of § 3º of the art. 6º of Law No. 9,496, of 1997, with the wording given by this Provisional Measure, will be able to retroact up to 1º June 1999.

Art. 24. It shall be the Union authorised to assume the burden arising from the reduction of charges laid down in the contracts, by it guaranteed, concluded, by October 30, 1997, within the framework of the Restructuring Support Program and the Fiscal Adjustment of States.

Art. 25. It shall be the Union authorised to equalize the accumulated difference, since October 30, 1997, between the average capping costs used in the composition of the financial burden adjusted in the contracts concluded, by the States, with institutions Federal public financial, within the framework of the Restructuring Support Program and the Fiscal Adjustment of States, authorized by the National Monetary Council, and the average capturing cost of the contracting institution in the reference month.

Art. 26. It is the Union authorized to deliver resources to states, their Municipalities, and the Federal District, respected as the limit for transfers the balance of budget allocations specifically intended for purpose.

Single paragraph. Act of the State Ministers of the Finance and Planning, Budget and Management shall lay down the limits, criteria, deadlines and the remaining conditions for the delivery of the resources to States, their Municipalities, and the Federal District, and shall be signed beforehand the respective term of accession.

Art. 27. It shall be extended, until December 30, 1999, the period set out in paragraph (b) of the inciso IV of the art. 3º of Law No. 9,846, of October 26, 1999.

Art. 28. Judicial deposits effected in an official financial institution submitted to the privatization process could be maintained, until the regular surveying, at the privatized financial institution itself or in the procuring financial institution of its triggering control.

Single paragraph. The provisions of this article apply to the official financial institutions whose privatization process has been completed, as well as to the official financial institutions in the process of privatization.

Art. 29. The Executive Power shall regulate the provisions of this Provisional Measure.

Art. 30. They are convalidated the acts practiced on the basis of the Provisional Measure No. 2.139-64, of March 27, 2001.

Art. 31. This Interim Measure takes effect on the date of its publication.

Brasilia, April 26, 2001; 180º of Independence and 113º of the Republic.

FERNANDO HENRIQUE CARDOSO

Pedro Parente