1644, Organic Law of the National Banking System Law No. 1644, Organic Law of the National Banking System, of September 26, 1953, and its amendments, is amended in the following provisions:
- a)Article 59 is amended. The text shall read:
"Article 59.- Only banks may receive deposits and demand deposits (captaciones) in checking accounts. In the case of private banks, they may only take demand deposits (captar depósitos) in checking accounts if they meet any of the following requirements:
- i)Permanently maintain a balance of loans in the Development Credit Fund (Fondo de Crédito para el Desarrollo) equivalent to seventeen percent (17%) of their total deposits (captaciones) with terms of thirty days or less, both in national and foreign currency, once the corresponding reserve requirement (encaje) has been deducted. In the event that all deposits are made in national currency, the percentage shall be only fifteen percent (15%) on the same calculation basis. The resources received by the administering state bank(s) from private entities shall be exempt from the minimum legal reserve requirement (encaje mínimo legal) for operations conducted by the administering bank(s), as established in Article 36 of Law No. 8634, Law of the Development Banking System, of April 23, 2008, and its amendments.
The following elements shall be considered for calculating the aforementioned percentages:
- 1)It shall be based on the average of the deposits (captaciones) of the last ninety business days, at the end of the day, with a lag of five business days.
- 2)Furthermore, on each and every day of the period for verifying compliance with the provisions of this article, the daily balance of loans in the Development Credit Fund may not be less than ninety-five percent (95%) of the average indicated in the preceding point.
The administering bank(s) shall recognize, for the benefit of private banking, an interest rate of fifty percent (50%) of the passive base rate for deposits in national currency, and fifty percent (50%) of the one-month Libor rate for resources transferred in foreign currency.
These resources may be invested as established in Article 36 of Law No. 8634, Law of the Development Banking System, of April 23, 2008, and its amendments.
If the bank opts for subsection i) and fails to comply with the provisions established in this subsection, a penalty shall be applied equivalent to the passive base rate in colones, calculated by the Central Bank, plus four percentage points (TBP+4 p.p.), applicable to the amount not deposited by the banking entity. The amount of this fine shall be deposited in the National Development Fund (Fondo Nacional para el Desarrollo)(*).
(*) (Its name thus amended by Article 3 of Law No. 9654 of February 14, 2019. Previously indicated as: "National Development Trust (Fideicomiso Nacional para el Desarrollo)") ii) Alternatively, install at least four agencies or branches dedicated to providing basic banking services, both passive and active, distributed in the Chorotega, Central Pacific, Brunca, Huetar Atlántico, and Huetar Norte regions, as well as maintain a balance equivalent to at least ten percent (10%), once the corresponding reserve requirement (encaje) has been deducted from their total deposits (captaciones) with terms of thirty days or less, in local and foreign currency, in loans directed to programs that, for these purposes, shall be mandatorily submitted to the Governing Council (Consejo Rector) for review and approval.
These resources shall be placed to end users at the following rates:
- a)For resources in colones: at the passive base rate calculated by the Central Bank of Costa Rica, adjustable and revisable quarterly. This rate shall be four percent (4%) when said calculation results in a lower percentage.
For resources in foreign currency: it shall be the average net interest rate on six-month deposits of private banking calculated by the Central Bank of Costa Rica, adjustable and revisable quarterly. This rate shall be three percent (3%) if said calculation results in a lower percentage.
In the event that private banks channel resources through second-tier banking, the Governing Council shall establish a preferential rate.
In order for final credit subjects to have exchange rate protection, private banks that place these resources may channel them directly in dollars. However, if there is insufficient demand to place all resources in foreign currency, the private bank may lend the equivalent in national currency.
The channeling of the resources established in this subsection ii) may be carried out, totally or partially, through placements to associations, cooperatives, microfinance institutions, foundations, non-governmental organizations, producer organizations, or other entities, regardless of their legal or organizational structure, provided that the private bank has programs approved by the Governing Council.
Furthermore, these resources may be allocated to the beneficiaries established by Law No. 8634, Law of the Development Banking System, of April 23, 2008, and its amendments, as established in this subsection, through direct credit, leasing, factoring, participation and performance guarantees, letters of credit, and other credit instruments, by the entities that make up the financial groups to which the banks intermediating these resources belong.
If a private bank decides to switch from the option described in subsection i) to that of subsection ii), it must request it from the Governing Council and SUGEF, at least six months in advance of the date of initiating the transfer. In accordance with the private bank's request, the return of resources shall be carried out according to a repayment plan that the administering bank(s) determine as appropriate for the requested period; this shall be known at the ordinary session of the Governing Council for its approval and determination of the maximum term for the money return period. The private bank may switch back from subsection ii) to i), provided it has completed a minimum permanence period under subsection ii) of five years and shall inform the Governing Council at least three months in advance, but from the date of transfer, it must comply with all provisions of subsection i).
For those private banks that decide to move from subsection i) to subsection ii), they shall have a gradual schedule such that by the end of the first year from the approval of their transfer to subsection ii), they must have placed at least three percent (3%) of the total deposits (captaciones) with terms of thirty days or less maintained on average during that year, after deducting the minimum legal reserve requirement (encaje mínimo legal). By the end of the second year from the approval of their transfer to subsection ii), six percent (6%) of the total deposits (captaciones) with terms of thirty days or less maintained on average during that second year, and by the third year, ten percent (10%) of the total deposits (captaciones) with terms of thirty days or less maintained on average during that year, after deducting the minimum legal reserve requirement. Starting the fourth year, the private bank that has complied with this gradual schedule shall maintain placed a minimum of ten percent (10%) of the total average deposits (captaciones) with terms of thirty days or less for each year, after deducting the minimum legal reserve requirement, in the different programs approved by the Governing Council.
The Governing Council of the Development Banking System shall have the authority to extend the deadlines for compliance with the placement percentages mentioned in the preceding paragraph, provided they do not exceed five years from the date the Governing Council approved the transfer to subsection ii), this only taking into account special situations that prevented placement within the stipulated period, which must be duly justified by the private banking entity. The other conditions shall be maintained as mentioned in this article. In the transition process from subsection i) to subsection ii), the private bank must transfer to the Development Credit Fund, under the conditions established in subsection i), the difference between ten percent (10%), as established in the two preceding paragraphs, and the amount that the private bank has managed to place. Once it has achieved the placement of the ten percent (10%) stipulated in subsection ii), it shall not have to place more resources under subsection i).
If the private bank transfers to subsection ii) and fails to meet the placement goals approved by the Governing Council, it must pay an interest rate equal to the passive base rate plus four percentage points (4 p.p.) on the amount resulting from the difference between what was actually placed from its portfolio in colones and the amount approved by the Governing Council in the transfer plans or their extension requests; similarly, it must pay an interest rate equal to the six-month Libor rate plus four percentage points (4 p.p.) on the amount resulting from the difference between what was actually placed from its portfolio in foreign currency and the amount approved by the Governing Council in the transfer plans or their extension requests for the placement of the portfolio in this currency. The amounts corresponding to the interest payments of these fines shall be transferred quarterly to FONADE(*) by the private bank, regardless of the currency in which the resources are taken (capten).
In the event that private banks, in using the resources of subsection ii) of this article, breach the approved plans, or if it is determined that the beneficiaries, through fraud or gross negligence, are not those established by Law No. 8634 and its amendments, the Governing Council of the Development Banking System shall inform SUGEF thereof, for the purpose of conducting the respective administrative procedure, based on which a fine shall be established, within the range of zero point five percent (0.5%) to one percent (1%) of its equity, according to the seriousness of the offense. The amount of this fine shall be deposited in the National Development Fund (Fondo Nacional para el Desarrollo, FONADE)(*). For establishing this fine, SUGEF shall be subject to the provisions of the second book of Law No. 6227, General Law of Public Administration.
(*) (Its name thus amended by Article 3 of Law No. 9654 of February 14, 2019. Previously indicated as: "National Development Trust (Fideicomiso Nacional para el Desarrollo, Finade)") The Central Bank may include, for the purposes of the requirements mentioned in subsections i) and ii) above, any other liability accounts of financial entities that, in its judgment, are similar to the obligations constituted as deposits (captaciones) at thirty days or less. For credit operations derived from the resources of subsections i) and ii) of this article, projects that demonstrate payment capacity shall be eligible, as established in the credit and debtor classification regulations approved by CONASSIF.
The Governing Council of the Development Banking System shall create policies to promote the use of resources from the two preceding subsections in specific beneficiary subjects or priority sectors, in accordance with public policies and the national development plan.
With respect to subsection i), of the total amount of credit placed to the beneficiary subjects, eleven percent (11%) must be allocated to the beneficiaries of subsection f) of Article 6 of Law No. 8634, and its amendments. Said balance must grow by at least five percent (5%) in real terms annually until reaching at least twenty-five percent (25%) of the amount placed.
In the case of subsection ii), of the total amount of resources established in the placement plans that the Governing Council approves to gradually achieve full compliance with subsection ii), eleven percent (11%) must be allocated to the beneficiaries of subsection f) of Article 6 of Law No. 8634, and its amendments. Said credit balances must grow by at least five percent (5%) in real terms annually until reaching at least twenty-five percent (25%) of the total amount of the Fund.
Exceptionally, the Governing Council may suspend the application of these minimum percentages established in the two preceding paragraphs for a period of up to three years, when it determines that there is no demand from the beneficiaries of those resources, in which case the resources must be allocated to the other subjects indicated in Law No. 8634, Law of Development Banking, and its amendments." b) The first paragraph and subsections 2), 11), 12), and 13), as well as the last two paragraphs of Article 61 are amended. The text shall read:
"Article 61.- Commercial banks may carry out the following credit and investment operations:
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- 2)To finance national companies providing tourism, transportation, and information media services.
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- 11)To acquire the movable and immovable property necessary for carrying out activities related to financial or operating leasing (arrendamiento financiero u operativo). As it is an ordinary activity, the sale of movable or immovable property acquired as a result of this activity shall be sold, when necessary, in accordance with the procedures held for the sale of property acquired as payment of obligations.
- 12)To carry out factoring (factoraje) operations.
- 13)To carry out other lending operations (operaciones activas) that national or international uses, practices, and techniques admit as characteristic of financial and banking activity.
For the provisions of subsections 11) and 12), public banks are authorized to establish corporations (sociedades anónimas) in accordance with the relevant rules of the Commercial Code, for the sole purpose of carrying out these activities or conducting financial or operating leasing operations. In such cases, the companies must keep their operations and accounting completely independent from the institution.
The corporations established under subsections 11) and 12) shall be under the oversight of the General Superintendency of Financial Entities (Superintendencia General de Entidades Financieras, SUGEF), which shall have identical powers as with the other financial intermediaries authorized by it. To this end, the National Council for Supervision of the Financial System (Consejo Nacional de Supervisión del Sistema Financiero, CONASSIF) must issue the rules and special regulation in accordance with the specific characteristics of the activity of said corporations and particular rules to regulate the operations conducted. These rules must be applied by the General Superintendency of Financial Entities in order to guarantee the safeguarding of the financial soundness of these companies and the interest of the community." File Article