SUSEP announces public consultation on procedural regulations governing administrative investigations

The Superintendence of Private Insurance (“SUSEP”) announced a public consultation to propose a new circular with the aim of streamlining the procedural regulations governing administrative investigations carried out by SUSEP.

The proposal establishes that the purpose of this rule is to create a “manual of procedures to guide civil servants involved in proposing, initiating, investigating, and concluding administrative investigations” and a “standardized investigation tool for the fact-finding stage of extraordinary cases”, whose key highlights are described as follows:

• The administrative investigation will not address complaints filed by consumers – which must undergo a “special procedure intended for customer service”.
• There is a clear separation of powers between the proposing body (which will request the investigation) and the initiating body (competent to decide whether or not to initiate and conduct the investigation). Also, there is a separation between phases – by defining the inspected party (person indicated as being under suspicion) and the investigated party (person indicated in the final assessment report as perpetrator of the administrative infringement).
• The administrative investigation is intended to provide the supervisory authority with more evidence (or not) of materiality, authorship and/or liability involved in an administrative infringement.
• During the investigation, SUSEP can require personal testimonies be taken of any person involved in the investigation, including through “assistance from the police authority whenever necessary”. Also, SUSEP can “require data or information from any authority or public office, including […] the bankruptcy judge, the Public Prosecutor’s Office, the judicial administrator, the intervening party or the liquidator”.
• SUSEP can “seize supporting or indicative documents” from supervised entities or companies “that carry out the activities supervised by SUSEP without an appropriate authorization”.
• The final assessment report will establish whether or not to initiate an administrative sanctioning proceeding on behalf of the defendant(s) or third parties.
• It is the responsibility of the initiating body to decide whether or not to shelve the investigation. Either the investigation committee (appointed exclusively to carry out the investigation) or the proposing body can file an appeal.
• SUSEP’s circular will provide for direct communication to the Public Prosecutor’s Office in case of a finding or evidence of criminal practice, and to other public administration bodies, if they are eligible and/or interested in carrying out an independent investigation.
• Law No. 9,784/99 (which regulates administrative proceedings within the scope of the Federal Government) will be applied to the investigation procedure whenever it is in compliance with its investigative nature.
• The method proposed in the draft will apply to cases in which the alleged infringements occur after such method comes into force.

Interested parties can submit contributions by September 21, 2024, through the Public Consultation System, in compliance with the guidelines available on SUSEP’s website.  The documents relating to the public consultation are also available in full on SUSEP’s website.

Demarest’s Insurance, Reinsurance, Health and Private Pension team is monitoring the  developments of this public consultation and remains available to provide further clarifications.