+CHAPTER 2 Common provisions
---+Article 35 Access to payment systems
---+Article 35a Conditions for requesting participation in designated payment systems
---+Article 36 Access to accounts maintained with a credit institution
---+Article 37 Prohibition of persons other than payment service providers from providing payment services and duty of notification
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CHAPTER 2 Common provisions
CHAPTER 2 Common provisions
1. Overview
| Summary |
Regulation |
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Article 35 Access to payment systems
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Article 35
Access to payment systems
1.
Member States shall ensure that the rules on access of authorised or registered payment service providers that are legal persons to payment systems are objective, non-discriminatory and proportionate and that they do not inhibit access more than is necessary to safeguard against specific risks such as settlement risk, operational risk and business risk and to protect the financial and operational stability of the payment system.
Payment systems shall not impose on payment service providers, on payment service users or on other payment systems any of the following requirements:
(a)
restrictive rule on effective participation in other payment systems;
(b)
rule which discriminates between authorised payment service providers or between registered payment service providers in relation to the rights, obligations and entitlements of participants;
(c)
restriction on the basis of institutional status.
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2.
Paragraph 1 shall not apply to payment systems composed exclusively of payment service providers belonging to a group.
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3.
Member States shall ensure that where a participant in a payment system designated under Directive 98/26/EC of the European Parliament and of the Council (
9
) allows an authorised or registered payment service provider that is not a participant in the system to pass transfer orders through the system that participant shall, when requested, give the same opportunity in an objective, proportionate and non-discriminatory manner to other authorised or registered payment service providers in line with paragraph 1 of this Article.
The participant shall provide the requesting payment service provider with full reasons for any rejection.
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Article 35a Conditions for requesting participation in designated payment systems
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Article 35a
Conditions for requesting participation in designated payment systems
1.
By way of safeguard for the stability and integrity of payment systems, payment institutions and electronic money institutions requesting participation and participating in systems designated under Directive 98/26/EC shall have in place the following:
(a)
a description of the measures taken for safeguarding payment service users’ funds;
(b)
a description of the governance arrangements and internal control mechanisms for the payment services or electronic money services it intends to provide, including administrative, risk management and accounting procedures, of the payment institution or electronic money institution and a description of the arrangements for the use of information and communication technology services of the payment institution or electronic money institution, related to Articles 6 and 7 of Regulation (EU) 2022/2554 of the European Parliament and of the Council (
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); and
(c)
a winding-up plan in case of failure.
For the purposes of the first subparagraph, point (a), of this paragraph:
(a)
where the payment institution or electronic money institution safeguards payment service users’ funds by depositing funds in a separate account in a credit institution or by means of an investment in secure, liquid, low-risk assets as defined by the competent authorities of the home Member State, the description of the measures taken for such safeguarding shall contain, as applicable:
(i)
a description of the investment policy to ensure that the assets that are chosen are liquid, secure and low-risk;
(ii)
the number of persons that have access to the safeguarding account and their functions;
(iii)
a description of the administration and reconciliation process to ensure that payment service users’ funds are insulated in the interest of payment service users against the claims of other creditors of the payment institution or electronic money institution, in particular in the event of insolvency;
(iv)
a copy of the draft contract with the credit institution;
(v)
an explicit declaration by the payment institution or electronic money institution of compliance with Article 10 of this Directive;
(b)
where the payment institution or electronic money institution safeguards payment service users’ funds through an insurance policy or comparable guarantee from an insurance company or a credit institution, the description of the measures taken for such safeguarding shall contain the following:
(i)
a confirmation that the insurance policy or comparable guarantee from an insurance company or a credit institution is from an entity that is not part of the same group of firms as the payment institution or electronic money institution;
(ii)
details of the reconciliation process in place to ensure that the insurance policy or comparable guarantee is sufficient to meet the safeguarding obligations of the payment institution or electronic money institution at all times;
(iii)
the duration and the terms of renewal of the coverage;
(iv)
a copy of the insurance agreement or comparable guarantee, or drafts thereof.
For the purposes of the first subparagraph, point (b), the description shall demonstrate that the governance arrangements, internal control mechanisms and arrangements for the use of information and communication technology as referred to in that point are proportionate, appropriate, sound and adequate. In addition, governance arrangements and internal control mechanisms shall include:
(a)
a mapping of the risks identified by the payment institution or electronic money institution, including the type of risks and the procedures the payment institution or electronic money institution has in place or will put in place to assess and prevent such risks;
(b)
the different procedures to carry out periodical and permanent controls, including the frequency and the human resources allocated;
(c)
the accounting procedures by which the payment institution or electronic money institution records and reports its financial information;
(d)
the identity of the person or persons responsible for the internal control functions, including for periodic, permanent and compliance control, as well as an up-to-date curriculum vitae of that person or those persons;
(e)
the identity of any auditor that is not a statutory auditor as defined in Article 2, point 2, of Directive 2006/43/EC;
(f)
the composition of the management body and, if applicable, of any other oversight body or committee;
(g)
a description of the way outsourced functions are monitored and controlled so as to avoid impairment of the quality of the internal controls of the payment institution or electronic money institution;
(h)
a description of the way any agents and branches are monitored and controlled within the framework of the internal controls of the payment institution or electronic money institution;
(i)
where the payment institution or electronic money institution is the subsidiary of a regulated entity in another Member State, a description of the group governance.
For the purposes of the first subparagraph, point (c), the winding-up plan shall be adapted to the envisaged size and business model of the payment institution or electronic money institution and shall include a description of the mitigation measures to be adopted by the payment institution or electronic money institution in the event of the termination of its payment services, which would ensure the execution of pending payment transactions and the termination of existing contracts.
2.
Member States shall define the procedure by which compliance with paragraph 1 is assessed. That procedure may take the form of self-assessment, of a requirement for an explicit decision by the competent authority, or of any other procedure that aims to ensure that the payment institutions and electronic money institutions concerned comply with paragraph 1.
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Article 36 Access to accounts maintained with a credit institution
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Article 36
Access to accounts maintained with a credit institution
Member States shall ensure that payment institutions have access to credit institutions’ payment accounts services on an objective, non-discriminatory and proportionate basis. Such access shall be sufficiently extensive as to allow payment institutions to provide payment services in an unhindered and efficient manner.
The credit institution shall provide the competent authority with duly motivated reasons for any rejection.
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Article 37 Prohibition of persons other than payment service providers from providing payment services and duty of notification
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Article 37
Prohibition of persons other than payment service providers from providing payment services and duty of notification
1.
Member States shall prohibit natural or legal persons that are neither payment service providers nor explicitly excluded from the scope of this Directive from providing payment services.
2.
Member States shall require that service providers carrying out either of the activities referred to in points (i) and (ii) of point (k) of Article 3 or carrying out both activities, for which the total value of payment transactions executed over the preceding 12 months exceeds the amount of EUR 1 million, send a notification to competent authorities containing a description of the services offered, specifying under which exclusion referred to in point (k)(i) and (ii) of Article 3 the activity is considered to be carried out.
On the basis of that notification, the competent authority shall take a duly motivated decision on the basis of criteria referred to in point (k) of Article 3 where the activity does not qualify as a limited network, and inform the service provider accordingly.
3.
Member States shall require that service providers carrying out an activity referred to in point (l) of Article 3 send a notification to competent authorities and provide competent authorities an annual audit opinion, testifying that the activity complies with the limits set out in point (l) of Article 3.
4.
Notwithstanding paragraph 1, competent authorities shall inform EBA of the services notified pursuant to paragraphs 2 and 3, stating under which exclusion the activity is carried out.
5.
The description of the activity notified under paragraphs 2 and 3 of this Article shall be made publicly available in the registers provided for in Articles 14 and 15.
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1.1 References
1.2 Identified Requirements
1.3 Related Standards
2. Identified Requirements
Requirements
| Source |
Requirement |
3. Related Standards
Standards
| Source |
Requirement |
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