By Attilio Diniz de Freitas / Antonio Carlos C. Mazzucco
Circular No. 3,842/17 (“Circular”), of the Central Bank of Brazil (“BACEN”), drafted new regulations on the so-called marketplaces. In fact, this is not exactly a “new” regulation: it has existed since 2013. What has changed is that BACEN has started to indicate that marketplaces must adhere to this regulation. The regulation in question is that related to payment arrangements – brought by Circular No. 3,682/13. Thus, BACEN, with the Circular, began to understand that it would also be up to the marketplaces integrate payment arrangements – as well as centralized clearing and settlement – as they can act as sub-accreditors.
Taking a step back, some definitions are in order. First, marketplaces are virtual platforms whose activity is the intermediation between users – who, on the one hand, offer goods or services, and on the other hand, acquire these goods or services. Examples of marketplaces are Estante Virtual, Mercado Livre, 99Taxis, Airbnb, iFood.
Secondly, the concept of Payment Arrangement is the set of rules and procedures whose objective is the provision of a certain payment service, with access by end users, and accepted by more than one institution. In a Payment Arrangement there are several participants. marketplaces a sub-accreditor function would be appropriate, since in the payment chain they play the role of registering end users and sending this data to the accreditor, in order to process the transactions carried out through their application or website. With this, the marketplaces are not listed as final recipients of the payment arrangement: they effectively participate in it – which is why BACEN saw them as subject to the rules of payment arrangements.
Finally, centralized clearing and settlement refer to those made through the Interbank Payment Chamber (“CIP”) – a non-profit civil association, created by banks in 2001, and part of the Brazilian Payment System – and has as its object electronic credit or debit orders between financial institutions and/or payment institutions participating in the same payment arrangement.
What, then, are the practical effects of BACEN's new understanding? Before the Circular, the marketplaces could effectively hold custody of the amounts arising from sales – since they could mediate the payment. This was due to the ability they had to enter into a contract with the acquirer or with the payment intermediary, receive the amounts arising from sales – made by credit card – and pass on the part that was due to the retailers, without formalizing a direct relationship with the card brands. In other words, the marketplaces could receive payment from a user and pass it on to the seller after a period not entirely set by law. It was precisely because of the systemic risk that such behavior could entail that BACEN issued the Circular, extending to marketplaces the rules on Payment Arrangements.
After the Circular, there are two options for marketplaces. The first path, which refers to the marketplaces who wish to continue to perform this transfer of values, must formalize their participation in the payment arrangement and join the CIP. Thus, the settlement of payments, on virtual platforms, can no longer be carried out by marketplaces: these must now adhere to the legal rules of the Payment Arrangements, as well as to the approval by the CIP. The second path consists of the use, by the marketplaces, of split of payments. Split Payment systems are a payment solution that automatically and immediately divides the amounts from sales. As a result, there is no custody of amounts by the marketplaces, which means that it is not necessary for them to be integrated into the CIP, although the Payment Arrangements rules must still be observed.
Finally, it is worth highlighting that BACEN stipulated the date of September 28, 2018 as the final deadline for adapting to the payment arrangement rules, and integration with the CIP – or use of split. With that, today, it is up to the marketplaces begin work to adhere to the requirements described above.