Limites à atuação do Banco Central como agente operador no mercado de pagamentos de varejo: o caso “Pix”

Abstract

The present study focuses on the role of the Central Bank of Brazil (BCB) as an operator in the retail payment market, with particular attention to its role as creator and manager of "Pix". The central question of the study is to determine the legal guidelines that should guide the BCB's actions when exercising its dual role as supervisor and operator in this market segment. To this end, bibliographic and documental research was carried out, with a specific focus on books, journals, laws and regulations, and institutional publications of national, foreign, and international organizations. Chapter 2 provides an overview of the elements that make up the retail payment market, presenting the concepts and definitions of the main legal entities involved in this segment of the economy. Chapter 3 examines the role of central banks in the payment markets, outlining the different roles played by monetary authorities (supervisor, catalyst, and operator), with a more detailed assessment of the experience with instant payments carried out by the Federal Reserve System in the United States. Chapter 4 focuses on the Brazilian reality, describing the BCB's initiative to lead the creation of an instant payment ecosystem in Brazil, and proving an overview of the history of Pix from its conception to its actual implementation. The reasons that led the BCB to take the role of operator of Pix are presented, and the legal basis that authorized the BCB to provide and manage the new payment ecosystem is analyzed. Chapter 5 presents the guidelines that BCB should follow to achieve a balanced exercise of the roles of supervisor and operator in the retail payment market, based on the premises established in the previous chapters. The guidelines derive from three axes: the non-lucrative purpose of federal agencies in Brazil; the possibility of requiring the BCB to abide by the principles provided for in article 7 of Law n. 12,865/13; and the possibility of following the Federal Reserve's lead with regards to proving services in competition with the private sector. Theoretical consequences of adopting these guidelines are presented. The initial hypotheses are confirmed. It is also stated that the Brazilian legal system allows for the imposition of legal guidelines on the BCB's activities regarding Pix, even in the absence of specific legal provisions on the matter.