ADMINISTRATIVE INFRACTIONS AND SANCTIONS IN COMPLEMENTARY LAW Nº 213/2025. NEW PARADIGMS OF SANCTIONING ADMINISTRATIVE LAW IN THE INSURANCE MARKET
SUMMARY
This article analyzes the legislative changes that were introduced by Complementary Law No. 213/2025 in the private insurance system in Brazil, especially in Decree-Law No. 73/1966 and related legislation. These changes modernized the regulatory framework, covering topics such as the regulation of insurance cooperatives, which beforewere restricted to the agricultural, health and work accident sectors,and the formalization of mutualist asset protection operations, in addition to expanding the powers of the Superintendence of Private Insurance (SUSEP). Insurance cooperatives began to be regulated with clear requirements for governance, oversight and asset independence. Mutualist asset protection emerged as an alternativeto the insurance, based on the sharing of costs among participants. The sanctioning regime was reinforced with strict penalties, greater accountability of managers and criminalization of illicit behavior, aiming to guarantee market stability and greater protection for consumers. The article concludes that these changes have the potential to transform the insurance and asset protection sector in Brazil, promoting inclusion, legal certainty and alignment with international standards, although they present operational and adaptation challenges for regulated entities and regulators.
KEYWORDS
Administrative sanctioning law; Insurance cooperatives; Mutual Asset Protection; Susep; Insurance companies.
ABSTRACT
The article analyzes the legislative changes introduced by Complementary Law No. 213/2025 to the private insurance system in Brazil, particularly to Decree-Law No. 73/1966 and related legislation. These changes modernized the regulatory framework, covering topics such as the regulation of insurance cooperatives and the formalization of mutual property protection operations, as well as expanding the powers of the Superintendence of Private Insurance (SUSEP). Insurance cooperatives are now regulated with clear requirements for governance, oversight, and asset independence. Mutual property protection has emerged as an innovative alternative to traditional insurance, based on cost-sharing among participants. The sanctioning regime has been strengthened with stricter penalties, increased accountability for managers, and the criminalization of irregular practices, aiming to ensure market stability and greater consumer protection. The article states that these changes have the potential to transform the insurance and property protection sector in Brazil, promoting inclusion, legal certainty, and alignment with international standards, although they pose operational and adaptation challenges for conclusive regulated entities and regulators.
KEYWORDS
Sanctioning Administrative Law; Insurance Cooperatives; Mutualist Asset Protection; Susep; Superintendence of Private Insurance; Insurers.
Introduction
The insurance sector in Brazil plays an essential role in economic development and in protecting the assets of individuals and companies. The evolution of this market is directly associated with the creation of a robust regulatory framework capable of meeting the demands of a dynamic economic environment. This market has expanded, both in Brazil and worldwide, in the post-globalization and post-pandemic scenario, with technological advances and the perception of increased risks. In this scenario, it is important to reflect on the principle of legal certainty and the irradiation of its effects within the scope of the sanctioning administrative law that governs the state's actions in this area.
In this sense, administrative infractions in the insurance market, when committed by managers of insurance companies, have common and universal characteristics, reflecting the need to regulate the conduct of managers in this sector, which is highly sensitive to the public interest. These infractions are often associated with the violation of corporate governance standards, such as the lack of effective internal controls, or admit negligence in supervising critical operations. In any scenario, subjective liability is required. Furthermore, regulatory systems seek to hold managers accountable for both direct acts and omissions that compromise the solvency of the insurer or harm consumers.
It should be noted that violations are linked to the principles of administrative sanctioning law, requiring that prohibited conduct and sanctions be previously defined in regulations and, above all, be previously delimited by law in a predictable manner in their minimum cores. The applicable sanctions include fines, disqualification from management positions and, in serious cases, restrictions on the company's operations. Finally, the application of these rules is guided by the principles of proportionality and reasonableness, in addition to the individualization and personality of the penalty, ensuring that the penalties are appropriate to the seriousness of the violation. This uniformity reflects the global commitment to the protection of consumers, investors and the stability of the insurance market.
As José Inácio Ribeiro Lima de Oliveira rightly points out, “such is the importance attributed to private insurance and pension activities of a complementary nature that the Federal Constitution of 1988 itself provides that it is the responsibility of the Union to supervise insurance and private pension operations (art. 21, VIII) and to privately legislate on civil law and insurance policy (art. 22, I and VII, respectively), as well as outline the main line of private pensions of a complementary nature (art. 202)”[1].
On January 15, 2025, Complementary Law number 213/2025 was approved, originating from Complementary Bill number 143/2024, which has on cooperative insurance companies and mutualist asset protection operations, as well as on the commitment term and the administrative sanctioning process within the scope of the Superintendence of Private Insurance. This new legislation must be interpreted from the perspective of constitutionalized administrative sanctioning law and, above all, by the jurisprudence of the Federal Supreme Court and the Superior Court of Justice, which has followed a path of respect for the constitutional guarantees of those administered and under its jurisdiction, as can be seen from the vast jurisprudence produced on this subject.[2].
Regarding the recent regulatory changes brought about by Complementary Law No. 213 of 2025, it is imperative to highlight the implications arising from the revisions promoted in Decree-Law No. 73/1966 and related legislation, which, in turn, introduced significant innovations in the scope of insurance cooperatives and mutualist asset protection. In fact, the new regulatory guidelines aim tor egularize a social phenomenon by bringing into legislation a market currently operating irregularly, providing greater robustness to legal security and optimizing regulatory efficiency.
Delegalization, characterized by the transfer of legislative matters to sub-legal norms, is a practice that, although useful in some circumstances, can compromise legal certainty, especially in regulated sectors such as the insurance market. The legislation for the sector in Brazil, traditionally based on Decree-Law No. 73/1966, delegated broad regulatory powers to the Superintendence of Private Insurance (SUSEP) and the National Council of Private Insurance (CNSP)..
Professor Eduardo García de Enterría defines delegalization as “the operation carried out by a law that, without entering into the material regulation of the subject, until then regulated by a previous law, opens such subject to the availability of the regulatory power of the Administration. Through the principle of contrarius actus, when a subject is regulated by a certain law, what we call a 'freezing of the hierarchical level' of the regulations that regulate the subject occurs, so that only by another contrary law can such regulation be innovated. A delegalization law operates as contrarius actus of the previous law of material regulation, however, not to directly innovate this regulation, but to formally degrade its hierarchical level so that, from then on, it can be regulated by simple regulations. In this way, simple regulations can innovate and, therefore, revoke previous formal laws, an operation that, obviously, would not be possible if the degrading law did not previously exist.”[3].
However, the Supreme Federal Court has consolidated its position that the constitutional legitimacy of delegalization is contrasted by the possibility of prohibiting or freezing the hierarchical level based on the reservation of treatment of certain matters by law of the same hierarchical level. This is what is seen in the precedent established by ARE No. 1401225 RJ[4], when Justice Rosa Weber highlighted that the STF “has already had the opportunity to affirm the constitutional legitimacy of delegalization in the judgment of RE No. 140.669-1 PE, in which the Rapporteur Justice Ilmar Galvão, adopting the lessons of JJ Canotilho, asserted that “the principles of legality, freezing of the hierarchical level and precedence of the law do not prevent, except in matters reserved to the law (taxes and crimes), the adoption of greater flexibility through the delegalization or degradation of the hierarchical level. In this case, a law, without entering into the regulation of the matter, formally lowers its normative level, allowing this matter to be modified by regulations.”
Complementary Law No. 213/2025, in the universe of Brazilian sanctioning administrative law,update the administrative sanctioning process, prevented delegalization and transformed the national regulatory framework, acting as an inhibitor of the phenomenon of delegalization in matters related to administrative sanctioning law within the scope of SUSEP's activities[5]. In this sense, this legislation must be interpreted in light of the 1988 Constitution and in accordance with the case law of the higher courts, as well as from the perspective of the Inter-American Court of Human Rights. Art. 36, VII, of Decree-Law No. 73/1966, with the wording included by the aforementioned Complementary Law,deals with oversightfor institutions operating markets supervised by SUSEP . Updating the administrative sanctioning processimplicitly requiresthe reviewcompliance programs to ensure strict compliance with the Decree-Law, other relevant laws, regulatory provisions in general related to supervised markets and CNSP resolutions, among others. It is important to emphasize the importance of obtaining international certifications, such as those referring to compliance with ISO - International Organization for Standardization standards, to validate the effectiveness of the corresponding compliance programs, in the context of the desirable convergence of national and international standards, to mitigate the risk of characterization of infractions by legal entities participating in supervised markets and their directors.
Delegalization, therefore, as stated, constitutes a formula by which the legislator seeks to deteriorate the normative typicality, with a semantic opening so vague that it causes an intolerable erosion in the predictability of the prohibited conduct, to such an extent that it becomes unfeasible to contemplate the minimum core of the infraction that is intended to be attributed to the natural or legal persons covered by the legal norm. In this step, there is an undue granting of competence by the legislator to the sub-legal authority, a phenomenon that is designated as delegalization, in such a way that the authority inferior to the legislator receives a competence that does not belong to it, namely, that concerning the classification of the infraction in its entirety. In this aspect, the legislator exempted itself from the competence regarding the classification of the infraction and granted a competence that was exclusive to it to the administrative authority.
Another type of delegalization is when the legislator is silent on the definition of the offense and the administrative authority creates, of its own volition, an offense through an autonomous normative process. This phenomenon also occurs when the offense is contemplated by law, but the sanction is created exclusively by the administrative authority, in which case the violation of the principle of legality results in the creation of the penalty without prior legal imposition.
In this scenario, the principle of legality in administrative sanctioning law encompasses infractions and sanctions, as much as in the scope of criminal law, whose rules and principles extend to administrative sanctioning law by symmetry, as the case law of the higher courts has recognized in Brazil, for a long time, as can be seen in the following precedents: EREsp: 875163 (RS 2009/0242997-0)[6], EDcl no REsp: 722403 (RS 2005/0020077-2)[7], REsp: 2087667 (RJ 2023/0261697-5)[8]and ADI: 2893 PE[9]. In the doctrine, see OSÓRIO, Fábio Medina. Administrative Sanctioning Law. 1st ed.
The intersection between national and international regulations thus proves to be a fertile field for contemporary legal debate, as it challenges legal practitioners to reflect on the compatibility of legislation and the effectiveness of sanctions imposed, always in light of the basic principles of legality and the protection of human rights. Therefore, the integration of these different sources of law is not only desirable, but necessary for the construction of a more robust and fair legal system that respects human dignity and promotes legal certainty in the exercise of administrative activity.
Strengthening the principle of legality in Complementary Law No. 213/2025 and the Risks of Delegalization[10]
Decree-Law No. 73/1966, still in force, was enacted under the aegis of the 1946 Constitution, so it was received by the 1988 Constitution, including on the rule of the principle of legality (this constitutional principle that governs the sanctioning administrative law and the democratic rule of law). Nevertheless, in view of the reform introduced byComplementary Law No. 213/2025, it is imperative to pay attention to the importance of strengthening the principles of legality and typicality within the scope of administrative sanctioning law, since Decree-Law No. 73/1966 alloweddelegalization of the sanctioning power of the state.
The principle of legality, the basis of the Democratic State of Law, requires that fundamental issues be addressed by formal law, approved by the Legislature, ensuring transparency, predictability and democratic legitimacy. Delegalization, when excessive, violates the legal reserve by delegating to sub-legal norms the regulation of matters that directly impact rights and obligations, in addition to imposing limits on the State's punitive power itself.Delegalization may occur, but under the pillars of non-arbitrariness, good grounds, transparency, and punitive coherence of the State. By disregarding these limits, delegalization will imply the deterioration of typicality in the law, that is, it will result in an excessive delegation to the sub-legal authority to classify the infraction and the sanction.
According to Fabio Medina Osorio[11], criminal law and administrative sanctioning law are complementary branches of law in the exercise of the State's punitive power. As a result of this complementarity, the principles and guarantees applicable to each branch cannot be ignored. The unity of the punitive power imposes respect for the principles of legality and typicality in both branches, requiring a rigorous and systematic interpretation to avoid arbitrariness and excessive delegalization of sanctioning norms.
The delegalization provided for in Decree-Law No. 73/1966, which established the National Private Insurance System in Brazil, transferred a series of regulatory powers to SUSEP and CNSP, where matters that could be addressed by law began to be regulated by sub-legal rules. Some hypotheses contained in the Decree-Law refer to the CNSP's power to establish guidelines and standards for private insurance policy, which includes the regulation of technical and operational aspects of the sector. CNSP also has the power to regulate the constitution, organization, operation and supervision of entities operating in the insurance market. With regard to SUSEP's power, Decree-Law No. 73/1966 tasked it with implementing the policies outlined by CNSP, regulating and supervising insurance, co-insurance, reinsurance and retrocession operations. In addition, SUSEP is competent to issue standards on independent audit reports and opinions for reinsurers and insurers.
At the same time, Decree-Law No. 73/1966 expanded the delegalization to include the regulation of operations, the regulation of entities participating in the insurance market and the implementation of adjustments to changes in the insurance market. The Decree-Law allowed the CNSP and SUSEP to establish technical and operational standards for the conduct of insurance activities, including the definition of rates, policy conditions and operational limits. The CNSP may also regulate the administration of self-regulatory entities in the brokerage market and set fees and commissions. In turn, SUSEP may organize and manage consortia, in addition to settling claims in accordance with established criteria. The relevant Decree-Law also allowed the CNSP and SUSEP to adjust the standards in response to changes in the market, in order to ensure that regulation remains relevant and effective.
These delegations allow for more agile adaptation to market changes and regulatory needs, but they can also raise concerns about the transparency and predictability of the rules applied, impacting legal certainty in the insurance sector. To some extent, Decree-Law No. 73/1966was updated byComplementary Law No. 213/2025, which introduced changesin insurance legislation, as it established specific limits and guidelines on how delegalization should be conducted, restricting the scope of normative delegation previously permitted by Decree-Law No. 73/1966.
In the insurance market, the risks of delegalization include legal uncertainty, since, as previously stated, sub-legal standardswithin the scope of the administrative sanctioning processare more susceptible to frequent changes, which generates instability for those regulated. In addition, there is a risk of concentration of power in regulatory bodies, as broad delegation can lead to arbitrary decisions, compromising regulatory balance. Regulatory fragility also stands out, resulting from the absence of a robust legal basis, which weakens the legitimacy of the standards applied.
Changes in Brazilian Legislation
Regarding Decree-Law No. 73/1966, which became the cornerstone of the National Private Insurance System, it is worth highlighting that its conception aimed to regulate the complex insurance and reinsurance operations in Brazil, assigning SUSEP an indisputably important role in the supervision of these activities. However, the evolution of the economic scenario and the growing clamor for social demands imposed the needof an update of this regulatory framework. In this context, Complementary Law No. 213/2025 emerged as a restructuring instrument, proposing incisive changes that reverberate not only in the Decree-Law, but also in a range of related regulatory diplomas.
The changes implemented cover a number of aspects, including the inclusion of cooperative insurance companies, which until then lacked adequate regulation and oversight. Furthermore, the formalization of mutual asset protection operations, combined with the creation of new sanctioning rules, demonstrates the intention to modernize the system. The interaction of these changes with preexisting legislation, such as Complementary Law No. 109/2001, which regulates supplementary pension plans, and Complementary Law No. 126/2007, which deals with reinsurance, demonstrates a deliberate effort to integrate the rules into a more cohesive regulatory landscape that is adaptable to contemporary demands.
The Complementary Law, by making significant changes to several laws relevant to the sector, directly impacted Decree-Law No. 73/1966, expanding its regulatory scope to include mutualist asset protection operations, in addition to strengthening state control through the robust action of SUSEP (Superintendence of Private Insurance). These changes aim not only to modernize, but also to strengthen the regulatory framework of the insurance market.
Furthermore, Complementary Law No. 109/2001 was also amended to eliminate the requirement for prior authorization for the election and appointment of administrators in certain circumstances. This measure promotes the reduction of bureaucracy and proposes to facilitate administrative procedures, thus ensuring greater efficiency in the management of regulated entities.
Regarding Complementary Law No. 126/2007, the incorporation of new specific rules for the contracting of reinsurance by insurance cooperatives is a crucial step towards improving the regulation and legal security of the operations of these entities, strengthening their presence in the market.
Law No. 12,249/2010 was also adjusted to adapt the inspection fee to the new reality of the insurance, reinsurance and capitalization markets. The adaptation of these fees, in turn, seeks contemplate new entrants, ensuring balance and efficiency in the sector's operations. Therefore, the changes covered by the Complementary Law represent a significant advance in the modernization of the legal framework of the insurance market, aligning it with current needs and thus promoting greater security, competitiveness and efficiency.
Complementary Law No. 213/2025 and the Implicit Prohibition on Delegalization
Although the Complementary Law does not explicitly mention the prohibition of delegalization, its provisions demonstrate a clear intention to reduce dependence on sub-legal norms, strengthening legal certainty in the sector. In this context, it is imperative to highlight the specific regulations that Insurance Cooperatives now adopt, with clear governance requirements and operational restrictions. Thus,the law provides that cooperatives must be established exclusively for this purpose and may, subject to prior authorization from Susep, operate in any branch of private insurance, except for those expressly prohibited in specific regulations issued by the CNSP and insurance structured in the financial regimes of capitalization and distribution of coverage capital. Insurance cooperatives are governed by the National Council of Private Insurance (CNSP) and supervised by the Superintendence of Private Insurance (Susep), being subject to strict criteria for their constitution and operation.
Its governance structure is adapted according to the size and complexity of operations, ensuring legal and financial security. In addition, capital shares now enjoy protection against seizures, and the return of amounts is subject to compliance with prudential requirements.
Cooperatives have the prerogative to act exclusively for the benefit of their members, except when there are regulatory provisions to the contrary, and are subject to limitations, such as the prohibition of carrying out insurance brokerage activities.
The Complementary Law establishes three main categories of insurance cooperatives, each with specific functions and characteristics ,in the formto beregulated by CNSP,but interconnected by common objectives of protection and solidarity among their members.
Central insurance cooperatives and confederations of insurance cooperatives shall be constituted, respectively, only by individual insurance cooperatives and by central insurance cooperatives. These entities can act in coinsurance of affiliated individual cooperatives and of the affiliates of their central cooperatives, respectively.
The inclusion of a specific chapter on insurance cooperatives in the Complementary Law is a significant innovation, as it establishes clear rules for the creation, governance and operation of these cooperatives, providing for distinct structures, such as individual cooperatives, central cooperatives and confederations. This chapter introduces operational restrictions, such as the prohibition of brokerage for central cooperatives and confederations, in addition to the requirement of prior authorization for the appointment of administrators and fiscal councilors.
Insurance cooperatives play an essential role in strengthening the Brazilian insurance market, promoting inclusion and democratizing access to protection products. The regulation introduced by the Complementary Law signals important advances, establishing a legal framework that guarantees safety, sustainability and efficiency in the operations of these entities. By consolidating these aspects in legislation, the rule limits the discretion of regulatory bodies and provides greater clarity on the obligations of cooperatives.
The mutualist asset protection model, in turn, emerges as a proposal which provides for the sharing of costs among participants to cover adverse events. In order to implement this system, management by an authorized administrator is essential, ensuring the patrimonial independence and protection of the groups' resources against financial problems of their members or the administrator itself. Thus, the Complementary Law aims to create a regulated model of mutualist patrimonial protection, ensuring patrimonial interests through the sharing of expenses, with clear definitions on the functions of the administrators and associations, including the essential patrimonial independence of the groups.
Furthermore, the Complementary Law establishes transparency and sustainability mechanisms to ensure the integrity of the model. Among the requirements for the effective functioning of this system, patrimonial independence stands out, which requires the protection of the resources of mutual groups against financial risks. In addition, the rule requires transparency in management, which must be conducted by authorized administrators and subject to due supervision. This approach prevents structural aspects of the model from being regulated exclusively by sub-legal norms, providing greater predictability for both associations and participants.
Sanctioning Regime and Inspection by SUSEP
Regarding the enactment of Complementary Law No. 213/2025, it is imperative to highlight the impactthat it exercises over the sanctioning regime to which entities regulated by the Superintendence of Private Insurance (SUSEP) are subject. The aforementioned legislation, when the updateto the sanctioning and punitive powerss, which now has expanded and better defined powers to exercise its market supervision and regulation function introducing, therefore, a list of penalties that are more severe, ranging from imposing fines to the extension of the period of disqualification of managers.
The SUSEP competency system, already established in Decree-Law No. 73/1966, gives it powers to monitor the operating institutions of the supervised markets or by any other persons, natural or legal, upon the occurrence of any irregularity to be investigated under the terms of the relevant Decree-Law, for the purpose of verifying the occurrence of illicit acts.
The broad spectrum of SUSEP's activities includes its regulatory powers as an executive body for the guidelines of insurance policies and mutualist asset protection established by the CNSP, acting as a supervisory body for the National Private Insurance System, in line with the registration, regulatory, supervisory and sanctioning responsibilities defined in the Decree-Law, which do not exclude the powers of the Central Bank of Brazil and the Securities and Exchange Commission to act in these areas, but in their respective segments of activity, in subordination to the National Monetary Council (CMN).
It is important to emphasize the preference for electronic citation, which is consistent with the search for procedural efficiency, as well as the possibility of applying precautionary measures, such as the removal or replacement of service providers, in situations that give rise to serious suspicions. It is also imperative to recognize the provision for the application of warnings for minor infractions, the carrying out of administrative interventions and, ultimately, the revocation of licenses, practices that aim to maintain order and legality within the scope of regulated activities. The robustness of this legislation reflects the need for a balance between the protection of collective interests and the accountability of agents who perform administrative functions in entities under the aegis of the Complementary Law.
Furthermore, the Complementary Law introduced mechanisms for adjusting conduct, with the use of terms of commitment to which those investigated may be subjected during sanctioning processes.
Among the main changes in the scope of sanctions provided for in the Complementary Law in question, the creation of stricter penalties stands out, involving the application of administrative fines with high values, which can reach up to R$ 35 million, twice the value of the contract or irregular operation, twice the damage caused to consumers or three times the economic gain obtained illegally.[12]. In cases of recurrence of the aforementioned practices, fines of up to three times the established amounts may now be applied, in accordance with CNSP criteria.
Additionally, penalties of suspension or disqualification of administrators, for periods of 2 to 20 years, may be applied depending on the severity of the violation, in cases of poor technical or financial management of business, or when there is damage to the liquidity, solvency or integrity of the supervised institutions. They are also applicable in situations of risk incompatible with the operations regulated by SUSEP, contribution to indiscipline in the markets or compromise of the stability of the National Private Insurance System, the National Capitalization System or the open supplementary pension market. SUSEP may also intervene when there are obstacles to the assessment of the real financial or equity situation of the operations or severe impact on the continuity of the activities of these systems and markets.
The new regulations, which set forth the consequences of non-compliance with prohibitions, summons, orders and requests issued by the Superintendence of Private Insurance (SUSEP), establish that failure to comply with these orders will result in the imposition of a penalty, which will be calculated based on the daily frequency of the delay or non-compliance. The amount of this penalty will be determined by the greater of one thousandth of the total revenue, whether individual or consolidated, of the prudential group, as outlined by the National Council of Private Insurance (CNSP) and related to the fiscal year prior to the application of the sanction, or the fixed amount of R$100,000.00. It is important to emphasize that the fine must be duly paid to SUSEP within 10 days from the date of the summons for payment. It should also be noted that the application of this pecuniary penalty does not exempt the competent authority from initiating administrative proceedings, nor from imposing other sanctions provided for in the legal system embodied in the relevant Decree-Law. Thus, the robustness of the legal framework that aims to ensure the effectiveness of regulations, preserving order and discipline within the scope of regulatory activity, is evident.
The Complementary Law, in accordance with the provisions of Decree-Law No. 73/66,It also explicitly establishes the joint liability of directors, administrators, managers and members of the fiscal councils of regulated entities, which include insurance companies, insurance cooperatives and mutual asset protection administrators, for any losses caused to third parties, notably due to non-compliance with legal regulations, such as the creation of mandatory reserves. In line with this guideline, among the measures implemented, we highlight the initiation of administrative sanctioning proceedings whenever there is evidence of the practice of infractions or irregularities, demonstrating a proactive and supervisory stance by the regulatory entity.
It is important to note, even in the case of joint and several liability, the individualization of the conduct of each of the accused in the indictments when opening the sanctioning proceedings. This is a constitutional guarantee inherent to due process, as established in article 5, LIV, of the Constitution, and a logical consequence of the principles of full defense and adversarial proceedings (item LV). In other words, the description of the prohibited conduct in a concrete and individualized manner is a necessity inherent to the principle of subjective liability of the accused, and even joint and several liability is incompatible with an abstract and generic description of unlawful behavior. In this context, it would be wrong to imagine the prospect of attributing an accusation to any manager based on the presumption of joint and several liability for the unlawful act, without any correspondence with documentary evidence and subjective element of the conduct, much less adherence that allows inferring willful or negligent behavior, according to the terms of the sanctioning type applicable to the case and the circumstances of the offense. In fact, joint and several liability in the context of administrative sanctioning law should not be confused with joint and several liability in the sphere of civil law. For these reasons, it is not feasible to automatically include managers from the perspective of joint and several liability without prior investigation involving the subjective element of conduct.
Regarding the determination of the subjective element to define joint and several liability, the precedent paradigm of Ruling No. 6228/2017 stands out.[13]within the scope of the Appeals Board of the National System of Private Insurance, Open Private Pensions and Capitalization (CRSNSP), in the context of an administrative appeal against a decision by SUSEP, in which the following understanding was established: “In fact, § 5 of art. 2 of CNSP Resolution No. 243/11 grants the option of punishing the director. This provision states that 'SUSEP may consider as the agent responsible for the alleged infraction, in the case of a natural person, to the extent of his/her culpability, the holder of an office' of administrator who, 'provenly, contributes to the commission of the infraction, or fails to prevent its commission, when he/she could have acted to avoid it'. In art. 10 of the same Resolution, proportionality is recommended between the type and extent of the penalty and the severity of the infraction and its effects. And, in § 1, it is determined that, when the sanction was applied to a natural person, 'the judging authority will consider his/her culpability'. These rules must be interpreted strictly. In these proceedings, at no time was it demonstrated or proven that the appellant acted to commit the irregularity that gave rise to the present proceedings.”
Continuing with the analysis of the culpability of an insurance company director, the aforementioned precedent states, in the Rapporteur’s vote, that the mere fact of holding the position of director does not make the director responsible for everything that may happen in the company’s day-to-day activities, transforming him into a kind of “insurance scapegoat”. In fact, the aforementioned vote emphasizes that: “The exercise of the position makes the director responsible for the acts of his employees, but only within the scope of civil liability. If an employee commits an irregular act or an act that harms someone, the director may even be held liable; but only civilly. Any penalty resulting from the practice of an unlawful act can only affect the person who actually committed it, and the director cannot be punished due to the act of another person, due to the constitutional principle that the penalty should not go beyond the person of the offender.”
Still regarding the analysis of the subjective element in joint and several liability, the leading vote of the CRSNSP Ruling 6228/2017, citing the work of Fábio Medina Osório[14], emphasizes that the consequence of applying the principles of culpability and personal nature of the sanction “is the fact that there is no solidarity in the field of illicit acts. In Criminal Law, as in Administrative Sanctioning Law, the punishment applied to a co-author offender does not benefit the other co-authors. Each one is responsible for his/her own act and receives an individualized penalty according to his/her degree of participation.”
Regarding the characterization of the circumstances of the infraction, the National Financial System Appeals Council (CRSFN), in a judgment that established a relevant precedent on the subject (Judgment No. 150/2023)[15], dealing with the specific analysis of the sanctioning process originating from the CVM, established the understanding that, as such, they should be understood, “in analogy to the judicial circumstances adopted in criminal law, those factors that do not constitute the offense, but that influence its severity. Examples of such circumstances would be the state of the agent, the conditions and manner of acting, the means used, time and space factors, among others. Such elements, as contingent, are not of the essence of the offense type. Consequently, their presence is not capable of invalidating the materiality of the criminal conduct or even the guilt of the agent. More than that, such circumstances do not affect the set of evidence and proof collected in the records. They only serve to examine the degree of guilt of the agent and the reprehensibility of the conduct for the purposes of sentencing.” Notably, it is a question of evaluating, in the sentencing examination, the application of aggravating and mitigating factors based on the determination of the base sentence.
In light of the context of insurance sector regulation and the actions of the Superintendence of Private Insurance (SUSEP), it is imperative to highlight the innovations introduced by the Complementary Law in force, which establishes the application of daily fines that can reach the amount of up to R$100,000.00 or one thousandth of the total revenue, in case of non-compliance with the determinations or summons issued by that agency. These changes aim, above all, to strengthen the supervision exercised by SUSEP, increasing the accountability of the parties involved and, consequently, ensuring greater protection for consumers, all while preserving the stability of the insurance market and mutual asset protection in Brazil. In addition, the aim is to foster a business environment that is safer and more reliable. It is important to emphasize that SUSEP, from now on, has expanded oversight powers, with mutual asset protection operations being included in its scope of action.
In this context, the superintendence is authorized to call extraordinary meetings and to apply preventive measures aimed at ensuring the stability of operations under its supervision. The new legislation, as already stated in a similar way in the Decree-Law73/66,establishes free access by duly accredited auditors and employees of the supervisory body to insurance companies, insurance cooperatives, mutual asset protection operations administrators and reinsurers. Such professionals have the prerogative to request and seize books, technical notes, information and documents relevant to the exercise of their functions.
Furthermore, any obstacle that prevents compliance with the established objectives will be considered as an impediment to supervision, giving rise to the application of the penalties provided for in the relevant Decree-Law. Considering that the Complementary Law grants a significant increase to the sanctioning power attributed to SUSEP, the expectation is that supervision will be more efficient, with a concomitant reduction in cases of fraud and harmful practices that may tarnish the sector. Furthermore, an increase in regulatory predictability is foreseen, which undoubtedly contributes to ensuring greater security and stability in the insurance market.
Impacts of Implicit Prohibition
The analysis of the evolution of the regulatory framework in the insurance sector, in light of Complementary Law No. 213/2025, reveals a deliberate movement towards the consolidation of standards that ensure legality and predictability in the regulatory environment. In a context in which legal certainty is fundamental, the aforementioned Law stands as a comprehensive response to the need for clarity and regulatory rigor, establishing guidelines that limit the discretion of regulatory authorities and promote transparency. In this sense, the Complementary Law not only reiterates the importance of legality, but also introduces mechanisms that aim to prevent delegalization, a practice that, over time, has generated uncertainty and insecurity in the market.
It is important to note that Article 11 of the original bill, which provided for the creation of 26 new positions in the structure of Susep, was vetoed due to constitutional issues related to the creation of public positions. Complementary Law No. 213/2025, in turn, directly incorporates into its text provisions that were previously subject to sub-legal regulation, which, in turn, strengthens predictability for market operators. As a result, the State's punitive power is exercised in a more cohesive manner and linked to constitutional principles, preventing sanctions from being imposed based on lower-ranking rules that do not meet the requirements of the Constitution. In this context, the clear classification of administrative infractions and the definition of proportional sanctions are innovations that ensure greater legal certainty and confidence in the system.
Furthermore, the regulation of insurance operations and the accountability of directors and fiscal advisors, as set out in the Complementary Law, illustrate a commitment to governance and ethics in the sector. These guidelines not only promote more transparent management, but also establish standards that make it difficult for regulators to engage in abusive or arbitrary practices. The Complementary Law thus presents itself as a bulwark of legality, in line with the contemporary demands of a market that demands predictability and stability.
Furthermore, the emphasis on the governance of regulated entities By directly addressing fundamental issues in legislation, the Complementary Law neutralizes the possibility that sub-legal practices are used to circumvent the principles of legality and legal reserve, ensuring that regulation remains within constitutional limits.
On the other hand, the transition to a more formalized model raises challenges that must be carefully managed by regulators and regulated parties. Adapting to the new requirements requires a coordinated effort to ensure that the innovations introduced by the Complementary Law effectively translate into concrete benefits for the market and consumers. The success of this transition will depend, to a large extent, on the ability of the agents involved to adapt to a stricter regulatory scenario, without compromising market dynamics.
In conclusion, Complementary Law No. 213/2025 not only advances in the consolidation of a clearer and more predictable regulatory framework, but also represents a decisive step in the protection of consumer rights and the promotion of a more stable business environment. The advances provided by this legislation are fundamental for the construction of a regulatory system that meets the demands of the contemporary insurance sector, reflecting the commitment to legality and transparency as essential pillars for strengthening the market.
Conclusion
Regarding the principle of administrative legality, in the field of administrative sanctioning law, it is worth recalling the paradigmatic judgment of the Superior Court of Justice, when the following guideline was established:[16]: “The institution of an infraction and imposition of a penalty based on an infra-legal act - Ordinance - violates the principle of legality, since “only the law, in its formal and material sense, can describe an infraction and impose sanctions”. In fact, the principle of legality, with its unfolding in the typicality, finds resonance in the democratic rule of law, and in due process of law, all enshrined in articles art. 179, I and 5º, LIV, respectively, of the Constitution of the Federative Republic of Brazil. In this context, it is not surprising that Complementary Law No. 213/2025 must necessarily conform to the dictates of the Constitution of 88, as well as decrees Decree-Law No. 73/1966 and Decree-Law No. 261/1967, as well as laws Complementary Law No. 109/2001 and Complementary Law No. 126/2007[17].
In fact, the Superior Court of Justice's understanding is unanimous that[18]: “ordinances are not suitable instruments for imposing fines, since they violate the constitutional principle of the reserve of law by contemplating penalties. The definition of infractions and the imposition of administrative sanctions, after the validity of the 1988 Constitution, can only arise from law in the formal sense. Furthermore, as a hierarchically inferior normative act, the purpose of ordinances is to clarify legal norms to be observed by the Administration, without the need to restrict or expand legal provisions. Therefore, ordinances are not intended to fill gaps and omissions in the law and, thus, cannot add material content to the regulated norm, and must be limited to the purpose of facilitating the application and execution of the law that governs the matter. (...)”.[19]
The recent changes covered by the Complementary Law represent a significant effort to modernize the National Private Insurance System, introducing greater flexibility and legal certainty to the sector. The regulation of insurance cooperatives and mutualist asset protection are examples of how legislation can be expanded with the approval of the Complementary Law, in order to cover issues and institutes that actually exist, but were previously omitted from the legislation.
The sub-legal regulation of fundamental issues, without support from formal law, compromises the legitimacy of the State's punitive power by violating the principles of legality, typicality and legal reserve. In the context of the insurance market, this can generate legal uncertainty, inequality in the application of rules and fragility of administrative infractions.
Complementary Law No. 213/2025 represents a significant advance by consolidating in the legal text provisions that reduce dependence on sub-legal norms, reinforcing alignment with the Democratic Rule of Law and promoting greater balance between the power of the State and the rights of those regulated.
The changes positively affect the national insurance system by guaranteeing consumer security, through the attribution of sanctioning and inspection powers to SUSEP, as well as by defining the types of cooperatives that can operate in the market and how they should operate, in addition to filling other legal gaps regarding insurance cooperatives and mutualist asset protection.
Despite the progress, implementing the changes presents challenges for operators and regulators, requiring investments in training and operational adjustments. As the rules are implemented and evaluated, these changes are expected to strengthen the insurance sector in Brazil, promoting its expansion and alignment with international regulatory standards.
Author: Fabio Medina Osorio
References
CENTRAL BANK OF BRAZIL. Credit Cooperatives. Available at: https://www.bcb.gov.br/estabilidadefinanceira/cooperativacredito. Accessed on: December 24, 2024;
CÔRTE REAL, Maria Manuela; CRUZ ALVES, Francisco José; FARINHA PEREIRA, Eduardo. The Insurance Sector: Evolution and Perspectives. [sl]: [sn], [sd]. Available at: https://purl.sgmf.pt/COL-MF-0064/1/COL-MF-0064_master/COL-MF-0064_pdf/capitulo%20VII.pdf. Accessed on: January 21, 2025;
DOBBYN, John F.; FRENCH, Christopher C. Insurance Law in a Nutshell. 5. ed. St. Paul: West Academic Publishing, 2016;
ENTERRIA, Eduardo Garcia. Delegated legislation, regulatory power and judicial control, Madrid: Civitas, 3. ed., 1998. p. 220/225;
FISCHER, James M.; KEETON, Robert E.; WIDISS, Alan I. Insurance Law: A Guide to Fundamental Principles, Legal Doctrines, and Commercial Practices. 2nd ed. West Academic, 2017;
MACHADO, Hendel Sobrosa. Controversial aspects of the credit insurance contract in comparative law. Available at: https://www.academia.edu/6556530/Aspectos_polemicos_do_seguro_de_credito_no_direito_comparado. Accessed on: January 17, 2025;
MIRAGEM, Bruno. The essential contribution of comparative law to the formation and development of Brazilian private law. Revista dos Tribunais, São Paulo, v. 1000, p. 157-190, Feb. 2019;
OLIVEIRA, José Inácio Ribeiro Lima de. The legality of the role of the Superintendence of Private Insurance in the inspection of marginal insurance and open supplementary pension entities. Brazilian Journal of Risk and Insurance, Rio de Janeiro, v. 11, n. 20, p. 225-276, Oct. 2015/Mar. 2016.
OSÓRIO, Fabio Medina. Administrative Sanctioning Law. 9th ed. New York: Courts Review Publishing House, 2023;
OSÓRIO, Fábio Medina. Typicality and Legality of Infractions and Sanctions in Administrative Sanctioning Law. Available at: https://www.medinaosorio.com.br/artigos/medina-osorio-exclusivo-tipicidade-e-legalidade-das-infracoes-e-sancoes-no-direito-administrativo-sancionador. Accessed on: January 26, 2025;
RUSSO, Claudio. The sanctioning system in the health department: principle and guardianship. Dialoghi di Diritto dell'Economia, September 2023. Available at: https://www.dirittobancario.it/wp-content/uploads/2023/09/2023-Russo-Il-sistema-sanzionatorio-nel-settore-assicurativo.pdf. Accessed on: 21 Jan. 2025.
SCHMITT, Daniel. On the punishability of the responsible agent in the private insurance market. Insurance Notebooks, v. 33, p. 34-46, 2013;
STIGLITZ, Rubén S. Derecho de Seguros I. 3rd ed. Buenos Aires: Abeledo-Perrot, 2001.
STIGLITZ, Rubén S. Derecho de Seguros II. 3rd ed. Buenos Aires: Abeledo-Perrot, 2001.
PEREIRA, Alexandre Libório Dias. The Legal Construction of the Single Insurance Market. In: Studies dedicated to Professor Doctor Mário Júlio de Almeida Costa. Catholic University Press, 2002, p. 75-109;
Footnotes
[1]OLIVEIRA, José Inácio Ribeiro Lima de. The legality of the role of the Superintendence of Private Insurance in the inspection of marginal insurance and open supplementary pension entities. Brazilian Journal of Risk and Insurance, Rio de Janeiro, v. 11, n. 20, p. 225-276, Oct. 2015/Mar. 2016.
[2]As a paradigmatic judgment, one can recall the recent judgment of the Federal Supreme Court involving administrative misconduct within the scope of general repercussion 1199, when that court established the applicability of the constitutional principles of sanctioning administrative law to that field and, even, relevant constitutional guarantees to those administered and under its jurisdiction. In addition to this, it should be noted that the jurisprudence of administrative courts such as the Securities and Exchange Commission itself establishes the incidence of the constitutional principles of sanctioned administrative law, as can be seen in its jurisprudence: CVM SANCTIONING ADMINISTRATIVE PROCESS No. 12/03; CVM SANCTIONING ADMINISTRATIVE PROCESS No. 19957.002528/2020-02. In this same context, the Superior Court of Justice, likewise, applies constitutional rules and guarantees of administrative sanctioning law within the scope of the financial market and the capital market, as can be seen from its case law: STJ. ARESP No. 602,480 - DF (2014/0273383-4), Rapporteur: Minister Napoleão Nunes Maia Filho, Judgment Date: November 17, 2020. Unanimous decision; STJ. AgInt in AgInt in RESP No. 1945137 - DF (2021/0191481-3), Rapporteur: Minister Herman Benjamin, Judgment Date: April 26, 2022; STJ. RESP No. 1,255,987 - PR (2011/0061307-1), Rapporteur: Minister Herman Benjamin, Judgment Date: 03/01/2012; STJ. ARESP No. 133,424 - SC (2012/0037539-2), Rapporteur: Minister Maria Isabel Gallotti, Judgment Date: 02/18/2014. In the same direction, the National Financial System Appeals Council also upholds the principle of legality of infractions and sanctions within the scope of administrative sanctioning law, as can be seen from the following precedent: JUDGMENT CRSFN 174/2024 (Process 18600.053500/2024-26 - BCB 271051), Rapporteur: Ilene Patrícia de Noronha Najjarian, 489th Session, Judgment Date: 12/3/2024, Electronic Service Bulletin: 12/19/2024.
[3]ENTERRIA, Eduardo Garcia. Delegated legislation, regulatory power and judicial control, Madrid: Civitas, 3. ed., 1998. p. 220/225.
[4]ARE: 1401225 RJ, Rapporteur: PRESIDENT, Judgment Date: 10/05/2022, Publication Date: ELECTRONIC PROCESS DJe-s/n DISCLOSED 10/06/2022 PUBLISHED 10/07/2022.
[5]The prohibition of delegalization, as a result of the advent of Complementary Law No. 213/2025, must be understood, essentially, in accordance with the interpretation in light of the jurisprudence of the higher courts, in line with the 1988 Constitution. In this sense, the aforementioned Complementary Law merely reflects an advance in the normative system after the judgment of Theme 1,199 of general repercussion in the scope of administrative improbity, a judgment that meant new paradigms for Brazilian administrative sanctioning law.
[6]EREsp: 875163 RS 2009/0242997-0, Rapporteur: Minister MAURO CAMPBELL MARQUES, Judgment Date: 06/23/2010, S1 - FIRST SECTION, Publication Date: DJe 06/30/2010.
[7]EDcl in REsp: 722403 RS 2005/0020077-2, Rapporteur: Minister MAURO CAMPBELL MARQUES, Judgment Date: 11/17/2009, T2 - SECOND PANEL, Publication Date: --> DJe 11/27/2009.
[8]REsp: 2087667 RJ 2023/0261697-5, Rapporteur: Minister SÉRGIO KUKINA, Judgment Date: 08/20/2024, T1 - FIRST PANEL, Publication Date: DJe 08/26/2024.
[9]ADI: 2893 PE, Rapporteur: Min. NUNES MARQUES, Judgment Date: 06/17/2024, Full Court, Publication Date: ELECTRONIC PROCESS DJe-s/n DISCLOSED 07/02/2024 PUBLISHED 07/03/2024.
[10]As recorded in the CVM precedent. PAS: 19957.008816/2018-48, Rapporteur: João Pedro Barroso Do Nascimento, Judgment Date: 07/10/2018. Unanimous decision., the sanctioning administrative law of the capital market allows the technique of general clauses, but requires respect for and obedience to the principle of legality.
[11]OSÓRIO, Fábio Medina. Typicality and Legality of Infractions and Sanctions in Administrative Sanctioning Law. Available at: https://www.medinaosorio.com.br/artigos/medina-osorio-exclusivo-tipicidade-e-legalidade-das-infracoes-e-sancoes-no-direito-administrativo-sancionador. Accessed on: January 26, 2025.
[12]Regarding the prohibition of objective liability in the insurance market, see the article by SCHMITT, Daniel. On the punishability of the responsible agent in the private insurance market. Cadernos de Seguro, v. 33, p. 34-46, 2013. The author addresses the legality of infractions and sanctions within the scope of SUSEP, highlighting the transfer of responsibility for fines to individual agents, introduced by LC 126/2007. He criticizes the lack of clear criteria for accountability, the absence of adequate motivation in administrative acts and the application of penalties based on hierarchical position, without proof of causal link or intent. He defends respect for the principle of personal liability and the need for detailed investigation to avoid excessive punishment. He concludes that unfounded punishments violate rights and may be illegal and arbitrary. In this sense, they may violate principles of legality and personal liability of infractions and sanctions. In fact, as stated in the workOSÓRIO, Fábio Medina. Administrative Sanctioning Law. 9th ed. São Paulo: Editora Revista dos Tribunais, 2023, the principle of personal sanction matters in subjective liability. This type of liability is incompatible with the presumption of liability. See the following bibliography: DOBBYN, John F.; FRENCH, Christopher C. Insurance Law in a Nutshell. 5th ed. St. Paul: West Academic Publishing, 2016; MACHADO, Hendel Sobrosa. Controversial aspects of the credit insurance contract in comparative law. Available at: https://www.academia.edu/6556530/Aspectos_polemicos_do_seguro_de_credito_no_direito_comparado. Accessed on: Jan. 17, 2025; FISCHER, James M.; KEETON, Robert E.; WIDISS, Alan I. Insurance Law: A Guide to Fundamental Principles, Legal Doctrines, and Commercial Practices. 2nd ed. West Academic, 2017; STIGLITZ, Rubén S. Insurance Law. 3rd ed. Buenos Aires: Abeledo-Perrot, 2001; STIGLITZ, Rubén S. Insurance Law II. 3rd ed. Buenos Aires: Abeledo-Perrot, 2001; PEREIRA, Alexandre Libório Dias. The Legal Construction of the Single Insurance Market. In: Studies dedicated to Professor Doctor Mário Júlio de Almeida Costa. Catholic University Press, 2002, p. 75-109; MIRAGEM, Bruno. The essential contribution of comparative law to the formation and development of Brazilian private law. 1000, p. 157-190, Feb. 2019; CÔRTE REAL, Maria Manuela; CRUZ ALVES, Francisco José; FARINHA PEREIRA, Eduardo. The Insurance Sector: Evolution and Perspectives. [sl]: [sn], [sd]. Available at: https://purl.sgmf.pt/COL-MF-0064/1/COL-MF-0064_master/COL-MF-0064_pdf/capitulo%20VII.pdf. Accessed on: Jan. 18, 2025; RUSSO, Claudio. The sanctions system in the insurance sector: principles and protection. Dialogues of Economic Law, September 2023. Available at: https://www.dirittobancario.it/wp-content/uploads/2023/09/2023-Russo-Il-sistema-sanzionatorio-nel-settore-assicurativo.pdf. Accessed on: January 19, 2025.
[13]JUDGMENT CRSNSP 6228/2017 (Case 15414.100639/2012-41- CRSNSP Appeal No. 7191), Rapporteur: André Leal Faoro, 245th Session, Judgment Date: 09/11/2017, Electronic Service Bulletin: 11/01/2017.
[14]OSÓRIO, Fábio Medina, “Sanctioning Administrative Law”, Ed. RT, 3rd ed. 2009, p. 343.
[15]JUDGMENT CRSFN 150/2023, Process 10372.100090/2022-87 - CVM 19957.006509/2019-11 (RJ2019/04665), Rapporteur: Renato da Câmara Pinheiro, 476th Session, Judgment Date: 10/11/2023, Electronic Service Bulletin: 03/07/2024.
[16]STJ. AG.REG. in RE with AG No. 1,046,163- DF, Rapporteur: Minister Napoleão Nunes Maia Filho, Judgment Date: 11/17/2020. Unanimous decision.
[17]In the same sense, including in the environmental field, the Superior Court of Justice has understood that: “In compliance with the Principle of Legality, the application of an environmental fine is not admissible without express provision in law strictu sensu, so that motivation exclusively in Regulatory Decrees or Ordinances is not admissible.” (STJ - AgRg in REsp: 1290827 MG 2011/0264879-5, Rapporteur: Napoleão Nunes Maia Filho, Judgment Date: 10/27/2016. Unanimous decision.)
[18]STJ. AgInt in AgInt in RESP No. 1945137 - DF (2021/0191481-3), Rapporteur: Minister Herman Benjamin, Judgment Date: 04/26/2022. Unanimous decision.
[19]On the contrary, it can be seen that the Supreme Federal Court admits infra-legal regulation when it is in accordance with the legal norm, as can be seen from the following precedent: STF. AG.REG. in RE with AG 1.046.163 - DF, Rapporteur: Minister Dias Toffoli, Judgment Date: 08/08/2017. Unanimous decision. In this case, Decree-Law number 395/1938 was received by the Constitution of 1988, exactly like Decree-Law no. 73/1966.
12 February 2025
