S.I. No. 383/2009 - European Communities (Payment Services) Regulations 2009

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S.I. No. 383/2009 - European Communities (Payment Services) Regulations 2009

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S.I. No. 383 of 2009
EUROPEAN COMMUNITIES (PAYMENT SERVICES) REGULATIONS 2009
Notice of the making of this Statutory Instrument was published in
“Iris Oifigiúil” of 29th September, 2009.
I, BRIAN LENIHAN, Minister for Finance, in exercise of the powers conferred on me by section 3 (as amended by section 2 of the European Communities Act 2007 (No. 18 of 2007)) of the European Communities Act 1972 (No. 27 of 1972), and for the purpose of giving effect to Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC 1 , hereby make the following Regulations:
Part 1
Preliminary
1. Citation.
2. Commencement.
3. Interpretation.
4. Bank to be competent authority.
5. Application of certain provisions of these Regulations.
6. Payment transactions, etc., to which these Regulations do not apply.
7. Relationship with Consumer Credit Act 1995.
Part 2
Payment Service Providers
Chapter 1
Right to Provide Payment Services
8. Persons that may provide payment services.
9. The Register.
Chapter 2
Authorisation of Payment Institutions
10. Applications for authorisation.
11. Initial capital.
12. Own funds.
13. Calculation of amount of own funds.
14. Calculation of own funds — Method A.
15. Calculation of own funds — Method B.
16. Calculation of own funds — Method C.
17. Calculation of own funds — scaling factor k.
18. Decision to grant or refuse authorisation.
19. Conditions for granting of authorisation.
20. Bank may require adjustments to applicant’s business plan.
21. Communication of the decision.
Chapter 3
Conditions of Authorisation
22. Requirements of this Chapter to be conditions of authorisation.
23. Maintenance of own funds.
24. Safeguarding of users’ funds.
25. Maintenance of authorisation.
26. Accounting and audit.
27. Activities in which a payment institution may engage.
28. Use of agents.
29.Establishment of branch in the State by payment institution authorised in another Member State.
30. Outsourcing of functions.
31. Liability.
32. Record-keeping.
33.Obligation to give notice of intention to commence providing payment services in another Member State.
Chapter 4
Withdrawal of authorisation
34. Withdrawal of authorisation.
Chapter 5
Small Payment Institutions
35.Small payment institutions — waiver of application of certain provisions of Chapter 2.
36. Requirement to apply for authorisation in certain circumstances.
37. Withdrawal of waiver.
Part 3
Payment Systems
38. Definition (Part 3).
39. Application of Part II of Central Bank Act 1997 to payment systems.
40. Bank’s powers in relation to payment systems.
41. Court’s additional powers in relation to payment systems.
Part 4
Transparency of Conditions and Information Requirements for Payment Services
Chapter 1
General Rules
42. Scope of this Part.
43. Application of this Part.
44. Operation of other legislative provisions.
45. Charges for information.
Chapter 2
Single Payment Transactions
46. Single payment transactions.
47. General information to be supplied in advance.
48. Information and conditions.
49. Information for payer after receipt of payment order.
50. Information for payee after execution of payment transaction.
Chapter 3
Framework Contracts
51. Scope of this Chapter.
52. General information to be supplied in advance.
53. Information to be provided.
54. Access to information and conditions of framework contracts.
55. Changes in conditions of framework contracts.
56. Termination.
57. Information before execution of individual payment transactions.
58. Information for the payer on individual payment transactions.
59. Information for the payee on individual payment transactions.
60.Information requirements for low-value payment instruments and electronic money.
Chapter 4
Common Provisions
61. Currency and currency conversion.
62. Information on additional charges or reductions.
63. Manner in which information to be given.
Part 5
Rights and Obligations in Relation to the Provision and Use of Payment Services
Chapter 1
Common Provisions
64. Scope.
65. Application of this Part.
66. Charges applicable.
67.Right of payment service provider and user to agree on application of certain provisions of these Regulations.
Chapter 2
Authorisation of Payment Transactions
68. Consent and withdrawal of consent.
69. Limits of the use of payment instruments.
70. Obligations of payment service users in relation to payment instruments.
71.Obligations of the payment service provider in relation to payment instruments.
72.Rectification of unauthorised, etc., payment transactions dependent on notice.
73.Evidence on authentication and execution of payment transactions.
74.Payment service provider’s liability for unauthorised payment transactions.
75.Payer’s liability for certain unauthorised payment transactions.
76. Refunds for payment transactions initiated by or through a payee.
77.Requests for refunds for payment transactions initiated by or through a payee.
78. No liability in certain circumstances.
79. Other compensation not prevented.
Chapter 3
Execution of payment transactions
80. Receipt of payment orders.
81. Refusal of payment orders.
82. Irrevocability of payment orders.
83. Amounts transferred and amounts received.
84. Execution time and value date.
85. Payment transactions to payment account.
86. Absence of payee’s payment account with the payment service provider.
87. Cash placed on a payment account.
88. Value date and availability of funds.
89. Incorrect unique identifiers.
90. Non-execution or defective execution.
91. Right of recourse.
92. No liability in certain circumstances.
93. Other compensation not prevented.
Chapter 4
Data Protection
94. Processing of personal data.
Part 6
Powers and Duties of the Bank
Chapter 1
Supervisory Powers and Duties
95. Bank as competent authority.
96. Supervision.
97. Bank’s power to give directions.
98. Exchange of information.
Chapter 2
Powers of Authorised Officers
99. Interpretation (Chapter 2).
100. Power to appoint authorised officers.
101. Powers of authorised officers.
102. Warrants.
Chapter 3
Out-of-Court Complaint and Redress Procedures
103. Out-of-court redress.
Chapter 4
Appeals
104. Appealable decisions.
Part 7
Offences
105. Offence — operation as a payment institution without authorisation, etc.
106. Offence — false or misleading information in application.
107. Offence — misappropriation of users’ funds.
108. Offence — failure to inform Bank of relevant changes, etc.
109. Offence — failure to keep appropriate records.
110. Offences — obstruction of authorised officer, etc.
111.Offence — provision of false or misleading information under Regulation 96(1)(a).
112. Penalties.
113. Prosecution of offences.
114.Offences — directors and others of bodies corporate and unincorporated bodies.
Part 8
Transitional
115. Payment service providers active before 25 December 2007.
116.Payment service providers active before 25 December 2007 included in consolidated supervision of another undertaking.
117.Certain small payment service providers active before commencement of these Regulations.
Part 9
Amendment and Revocation of Other Legislation
118. Amendments of Central Bank Act 1942.
119.Amendment of the European Communities (Licensing and Supervision of Credit Institutions) Regulations 1992.
120.Revocation of European Communities (Cross-Border Credit Transfers) Regulations 1999.
121.Amendment of European Communities (Protection of Consumers in Respect of Contracts Made by Means of Distance Communication) Regulations 2001.
122.Amendments of European Communities (Distance Marketing of Consumer Financial Services) Regulations 2004.
SCHEDULE 1
Payment Services
SCHEDULE 2
Amendment of other Legislation
Part 1
Amendments of Central Bank Act 1942
Part 2
Amendments of European Communities (Licensing and Supervision of Credit Institutions) Regulations 1992
Part 1 Preliminary
Citation.
1. These Regulations may be cited as the European Communities (Payment Services) Regulations 2009.
Commencement.
2. (1) Part 1 and Part 2 (except for Chapter 1) come into operation on the day after the making of these Regulations is notified in Iris Oifigiúil.
(2) The remainder of these Regulations come into operation on 1 November 2009.
Interpretation.
3. (1) In these Regulations—
“the Bank” means the Central Bank and Financial Services Authority of Ireland;
“competent authority”, in relation to any other Member State means the body or bodies charged by law in the Member State with the supervision of payment institutions;
“court” means the High Court;
“electronic money” has the same meaning as in the European Communities (Electronic Money) Regulations 2002 (S.I. No. 221 of 2002);
“Member State” means a Member State of the European Communities and includes a contracting party to the Agreement on the European Economic Area signed at Oporto on 2 May 1992 2 (as adjusted by the Protocol signed at Brussels on 17 March 1993 3 ), as amended from time to time;
“micro enterprise” has the meaning given by Commission Recommendation 2003/361/EC of 6 May 2003 4 concerning the definition of micro, small and medium-sized enterprises;
“money-laundering” means:
(a) the conversion or transfer of property, knowing that the property is derived from criminal activity or from an act of participation in criminal activity, for the purpose of concealing or disguising the illicit origin of the property or of assisting any person who is involved in the commission of the activity to evade the legal consequences of his or her action;
(b) the concealment or disguise of the true nature, source, location, disposition, movement, rights with respect to, or ownership of property, knowing that the property is derived from criminal activity or from an act of participation in criminal activity;
(c) the acquisition, possession or use of property, knowing, at the time of receipt, that the property was derived from criminal activity or from an act of participation in criminal activity, or;
(d) participation in, association to commit, attempts to commit and aiding, abetting, facilitating and counselling the commission of any of the actions mentioned in the subparagraphs (a) to (c),
even if the activities that generated the property were carried out outside the State;
“payment account” means an account held in the name of one or more payment service users that is used for the execution of payment transactions where the holder of the account is entitled to place, transfer or withdraw funds without any restrictions;
“payment service”, subject to paragraph (2), means each business activity listed in Schedule 1;
“Payment Services Directive” means Directive 2007/64/EC of the EuropeanParliament and of the Council of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC1;
“the Register” means the Register maintained by the Bank under Regulation 9;
“registered” means entered in the Register;
“terrorist financing” means the provision or collection of funds, by any means, directly or indirectly, with the intention that they should be used or in the knowledge that they are to be used, in full or in part, in order to carry out any of the offences mentioned or referred to in Articles 1 to 4 of Council Framework Decision 2002/475/JHA of 13 June 2002 on combating terrorism 5 .
(2) In these Regulations (other than in the definition in paragraph (1) and in Regulation 5) a reference to a payment service is a reference to a payment service to which these Regulations apply.
(3) Unless the contrary intention appears, a word or expression used in these Regulations and also in the Payment Services Directive has in these Regulations the same meaning as it has in that Directive.
Bank to be competent authority.
4. (1) The Bank is the competent authority in the State for the purposes of the Payment Services Directive.
(2) Paragraph (1) does not imply that the Bank is required to supervise any business activity of a payment institution other than the provision of payment services and the activities mentioned in Regulation 27(1)(a).
Application of certain provisions of these Regulations.
5. Part 4, Regulations 64 to 87 and Regulations 89 to 94 apply to the provision of a payment service only if—
(a) one payment service provider involved is in the State, and
(b) any other payment service provider involved is in the State or another Member State.
Payment transactions, etc., to which these Regulations do not apply.
6. These Regulations do not apply to—
(a) payment transactions made exclusively in cash directly by the payer to the payee,
(b) payment transactions from a payer to a payee through a commercial agent authorised to negotiate or conclude the sale or purchase of goods or services on behalf of the payer or the payee,
(c) the business of physical transport (including collection, processing and delivery) of banknotes and coins,
(d) non-professional cash collection and delivery within the framework of a non-profit or charitable activity,
(e) the provision of cash back at the point of sale (that is, the service of providing, on request by a payer just before the execution of a payment transaction, cash to the payer by a payee as part of a payment transaction in connection with the purchase of goods or services),
(f) money exchange business (that is, cash-to-cash operations, where the funds concerned are not held on a payment account),
(g) payment transactions based on any of the following kinds of document drawn on a payment service provider with a view to placing funds at the disposal of a payee:
(i) paper cheques in accordance with the Geneva Convention of 19 March 1931 providing a uniform law for cheques;
(ii) paper cheques similar to those referred to in sub-subparagraph (i) governed by the laws of Member States not party to that Convention, including paper cheques within the scope of the Bills of Exchange Act 1882 (45 & 46 Vict. c.61);
(iii) paper-based drafts in accordance with the Geneva Convention of 7 June 1930 providing a uniform law for bills of exchange and promissory notes;
(iv) paper-based drafts similar to those referred to in sub-subparagraph (iii) governed by the laws of Member States not party to that Convention;
(v) paper-based vouchers;
(vi) paper-based traveller’s cheques;
(vii) paper-based postal money orders (as defined by the Universal Postal Union),
(h) payment transactions carried out within a payment or securities settlement system between settlement agents, central counterparties, clearing houses or central banks and other participants in the system, and payment service providers,
(i) payment transactions related to securities asset servicing, including dividends, income or other distributions, or redemption or sale, carried out by persons referred to in subparagraph (h) or by investment firms, credit institutions, collective investment undertakings or asset management companies providing investment services and any other entities allowed to have the custody of financial instruments,
(j) services provided by technical service providers that support the provision of payment services without them at any time entering into possession of the funds to be transferred (including processing and storage of data, trust and privacy protection services, data and entity authentication, the provision of information technology, communications networks, and the provision and maintenance of terminals and devices used for payment services),
(k) services based on instruments that can be used to acquire goods or services only in the premises used by the issuer or under a commercial agreement with the issuer either within a limited network of service providers or for a limited range of goods or services,
(l) payment transactions executed by means of a telecommunication, digital or IT device, where the goods or services purchased are delivered to and are to be used through a telecommunication, digital or IT device, on the condition that the telecommunication, digital or IT operator does not act only as an intermediary between the payment service user and the supplier of the goods and services,
(m) payment transactions carried out between payment service providers, their agents or branches for their own account,
(n) payment transactions between a parent undertaking and its subsidiary or between subsidiaries of the same parent undertaking, without any intermediary intervention by a payment service provider other than an undertaking belonging to the same group, or
(o) the provision of a cash withdrawal facility by means of automated teller machines, where the provider—
(i) acts on behalf of one or more card issuers,
(ii) is not party to any framework contract with a person who withdraws cash, and
(iii) does not conduct other payment services.
Relationship with Consumer Credit Act 1995.
7. Nothing in these Regulations affects the operation of the Consumer Credit Act 1995 (No. 24 of 1995).
Part 2 Payment Service Providers
Chapter 1 Right to Provide Payment Services
Persons that may provide payment services.
8. (1) A person shall not provide a payment service unless the person is—
(a) a credit institution within the meaning of Directive 2006/48/EC of the European Parliament and of the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions (including a branch, within the meaning of Article 4(3) of that Directive, located in a Member State of a credit institution having its head office in or, in accordance with Article 38 of that Directive, elsewhere than in a Member State),
(b) an electronic money institution (within the meaning of the European Communities (Electronic Money) Regulations 2002 (S.I. No. 221 of 2002)),
(c) An Post in its capacity as a provider of banking and giro services, or the postal authority of another Member State in its capacity as the provider of a giro service,
(d) the Bank, the European Central Bank, or the central bank of another Member State, that is not acting in its capacity as a monetary authority,
(e) a Member State, or a regional or local authority of a Member State, that is not acting in its capacity as a public authority,
(f) a credit union (within the meaning of the Credit Union Act 1997 (No. 15 of 1997)),
(g) a payment institution authorised under Chapter 2 or by Regulation 115 whose authorisation has not been revoked,
(h) a person that has been registered after qualifying as a small payment institution under Regulation 35,
(i) a person for the time being permitted under Part 8 to provide the payment service, or
(j) a payment institution authorised as such in another Member State pursuant to a law giving effect to the Payment Services Directive.
(2) A payment institution referred to in paragraph (1)(j) shall not provide, in the State, a payment service unless the Bank has been given notice in accordance with Article 25 of the Payment Services Directive.
(3) A payment institution authorised under Chapter 2 or Regulation 115 to provide a payment service shall not provide, in the State or in another Member State, a payment service that is not covered by its authorisation.
(4) A payment institution authorised by the law of another Member State to provide a payment service shall not provide, in the State, a payment service that is not covered by its authorisation.
(5) A person referred to in paragraph (1)(h) shall not provide a payment service other than one it is registered to provide.
(6) A person referred to in paragraph (1)(i) shall not provide a payment service other than one it is permitted under Part 8 to provide.
The Register.
9. (1) The Bank shall maintain a public register (in these Regulations called “the Register”) of—
(a) payment institutions and their agents and branches,
(b) credit unions, and
(c) persons who have been registered after qualifying as a small payment institution under Regulation 35, and their agents and branches.
(2) The Register shall specify the payment services for which a payment institution is authorised or for which a person referred to in paragraph (1)(c) has been registered.
(3) Payment institutions, credit unions and persons referred to in paragraph (1)(c) shall be listed in the Register separately.
(4) The Bank shall make the Register publicly available for consultation and accessible online, and shall keep the Register up to date.
Chapter 2 Authorisation of Payment Institutions
Applications for authorisation.
10. (1) An application for authorisation as a payment institution shall be in the form directed by the Bank and shall contain or be accompanied by—
(a) a programme of operations, setting out in particular the type of payment services envisaged,
(b) a business plan including a forecast budget calculation for the first three financial years that demonstrates that the applicant is able to employ the appropriate and proportionate systems, resources and procedures to operate soundly,
(c) evidence that the applicant holds initial capital in accordance with Regulation 11,
(d) in the case of an applicant to which Regulation 24(2) applies, a description of the measures taken, in accordance with Regulation 24, for protecting payment service users’ funds,
(e) a description of the applicant’s governance arrangements and internal control mechanisms (including its administrative, risk-management and accounting procedures) that demonstrates that those governance arrangements, control mechanisms and procedures are proportionate, appropriate, sound and adequate,
(f) a description of the internal control mechanisms that the applicant has established to comply with its obligations in relation to money-laundering and terrorist financing and its obligations under Regulation (EC) No 1781/2006 of the European Parliament and of the Council of 15 November 2006 on information on the payer accompanying transfers of funds,
(g) a description of the applicant’s structural organisation, including, if applicable, a description of the intended use of agents and branches and a description of any outsourcing arrangements, and of its participation in a national or international payment system,
(h) the name of each person holding in the applicant, directly or indirectly, a qualifying holding (within the meaning of Regulation 3 of the European Communities (Markets in Financial Instruments) Regulations 2007 (S.I. No. 60 of 2007), the size of each such holding, and evidence of each such person’s suitability taking into account the need to ensure the sound and prudent management of a payment institution,
(i) the name of each director or other person responsible for the management of the applicant and, where relevant, each person responsible for the management of the proposed payment services activities of the applicant, and evidence that each such person is of good repute and possesses appropriate knowledge and experience to perform payment services as determined by the home Member State of the payment institution,
(j) the name of the person who will carry out for the applicant the functions of audit required by the Companies Acts,
(k) the applicant’s legal status and memorandum and articles of association or other constitutional documents, and
(l) the address of the applicant’s head office.
(2) The applicant shall provide a description of its audit arrangements and the organisational arrangements it has set up with a view to taking all reasonable steps to protect the interests of its users and to ensure continuity and reliability in the performance of payment services.
(3) The Bank may request from an applicant, by notice in writing, any further information that it requires for the purposes of considering the application.
(4) If the Bank makes a request for further information under paragraph (3), the Bank is not obliged to consider the application until the applicant concerned provides the information so requested.
Initial capital.
11. (1) The Bank shall not authorise an applicant as a payment institution unless the applicant holds initial capital of at least—
(a) where the applicant proposes to provide only the payment service listed in point 6 of Schedule 1, €20,000,
(b) where the applicant proposes to provide the payment service listed in point 7 of Schedule 1, €50,000, and
(c) where the applicant proposes to provide a payment service listed in any one or more of points 1 to 5 of Schedule 1, €125,000.
(2) For the purposes of calculating an applicant’s initial capital, only the elements of its own funds described in subparagraphs (a) and (b) of Regulation 3(1) of the European Communities (Capital Adequacy of Credit Institutions) Regulations 2006 (S.I. No. 661 of 2006) shall be taken into account.
Own funds.
12. (1) The Bank shall not authorise an applicant as a payment institution unless the applicant holds own funds of at least—
(a) the higher of—
(i) the amount required by virtue of Regulation 11 as its initial capital, and
(ii) the amount calculated by whichever of Methods A, B and C the Bank directs the institution, under Regulation 13(1), to use, or
(b) if the Bank so permits under paragraph (3), the amount required by virtue of Regulation 11 as the applicant’s initial capital.
(2) Methods A, B and C are set out in Regulations 14, 15 and 16 respectively.
(3) The Bank may permit an applicant, on a case by case basis, not to hold own funds in accordance with paragraph (1)(a) if the payment institution is included in the consolidated supervision of a parent credit institution and meets the following conditions:
(a) there is no current or foreseen material practical or legal impediment to the prompt transfer of own funds or repayment of liabilities by the parent credit institution;
(b) either the parent credit institution satisfies the Bank regarding the prudent management of the payment institution and has declared, with the consent of the Bank, that it guarantees the commitments entered into by the payment institution, or the risks in the payment institution are of negligible interest;
(c) the risk-evaluation, measurement and control procedures of the parent credit institution cover the payment institution;
(d) the parent credit institution holds more than 50% of the voting rights attaching to shares in the capital of the payment institution, or has the right to appoint or remove a majority of the members of the management body of the payment institution.
(4) On the basis of an evaluation of the risk-management processes, risk-loss database and internal control mechanisms of a payment institution, the Bank may require an applicant to hold an amount of own funds that is up to 20% higher than, or permit it to hold an amount of own funds that is up to 20% lower than, the amount that results from the application of the method directed by the Bank under Regulation 13(1).
Calculation of amount of own funds.
13. (1) Subject to Regulation 12(3), the Bank shall direct an applicant in writing to employ Method A, Method B or Method C to calculate the amount of own funds that the applicant must hold.
(2) Regardless of the method that an applicant is to use in calculating own funds, in doing so, the applicant may take into account only components referred to in Regulations 3 and 9 of the European Communities (Capital Adequacy of Credit Institutions) Regulations 2006 (S.I. No. 661 of 2006), subject to Regulations 7 and 8 and the limits set out in Regulation 11, of those Regulations.
(3) Regardless of the method that an applicant is to use in calculating own funds, in doing so—
(a) where the applicant belongs to the same group as another payment institution, credit institution, investment firm, asset management company or insurance undertaking, the applicant shall not take into account elements that also form part of a calculation of own funds for another member of the group, and
(b) where the applicant carries out activities other than providing payment services, it shall not, in calculating own funds, take into account elements that are properly attributable to any of those other activities.
Calculation of own funds — Method A.
14. For Method A, the amount is at least 10% of the applicant’s fixed overheads for the preceding year. The Bank may vary that requirement for an applicant for a particular year in the event of a material change in the applicant’s business since the previous year. If at the date of the calculation an applicant has not completed a full year’s business the amount is 10% of the corresponding fixed overheads as projected in its business plan unless the Bank has required an adjustment to that business plan in accordance with Regulation 20.
Calculation of own funds — Method B.
15. (1) For Method B, the amount is that calculated by the formula—
SE k
where—
(a) SE is—
(i) for PV up to €5 million, 4.0% of PV,
(ii) for PV between €5 million and €10 million, €200,000 plus 2.5% of (PV — €5 million),
(iii) for PV between €10 million and €100 million, €325,000 plus 1% of (PV — €10 million),
(iv) for PV between €100 million and €250 million, €1,225,000 plus 0.5% of (PV — €100 million), and
(v) for PV over €250 million, €1,975,000 plus 0.25% of (PV — €250 million),
(where PV is one-twelfth of the total amount of payment transactions executed by the applicant in the previous year), and
(b) k has the meaning given by Regulation 17.
(2) For the purpose of calculating SE for an applicant, a step in any of sub-subparagraphs (i) to (iv) in paragraph (1)(a) includes its upper limit but not its lower limit.
Calculation of own funds — Method C.
16. (1) For Method C the amount is the higher of—
(a) the amount calculated by the formula—
MF k,
or
(b) 80% of the annual average of own funds (calculated using Method C) over the previous 3 financial years.
(2) In paragraph (1)—
(a) MF is the sum of—
(i) 10% of the tranche of RI up to €2.5 million,
(ii) if RI exceeds €2.5 million, 8% of the tranche of RI between €2.5 million and €5 million,
(iii) if RI exceeds €5 million, 6% of the tranche of RI between €5 million and €25 million,
(iv) if RI exceeds €25 million, 3% of the tranche of RI between €25 million and €50 million, and
(v) if RI exceeds €50 million, 1.5% of the tranche of RI over €50 million,
where RI is the sum of the following:
(vi) the interest income of the applicant concerned;
(vii) its interest expenses;
(viii) commissions and fees it receives;
(ix) its other operating income,
and
(b) k has the meaning given by Regulation 17.
(3) For the purposes of a calculation using method C—
(a) in calculating RI—
(i) each element mentioned in the definition of RI in paragraph (2)(a) shall be included with its proper positive or negative sign,
(ii) income from extraordinary or irregular items may not be used,
(iii) expenditure on the outsourcing of services rendered by third parties may be used to reduce RI if the expenditure is incurred from an undertaking subject to supervision under these Regulations or the law of another Member State giving effect to the Payment Services Directive,
(iv) RI is to be calculated over the previous financial year on the basis of the twelve-monthly observation at the end of the previous financial year, and
(v) if audited figures are not available, business estimates may be used, and
(b) a step in any of sub-subparagraphs (i) to (iv) in paragraph (2)(a) includes its upper limit but not its lower limit.
Calculation of own funds — scaling factor k.
17. The scaling factor k to be used in Methods B and C is:
(a) in the case of an applicant that provides only the payment service listed in point 6 of Schedule 1, 0.5,
(b) in the case of an applicant that provides the payment service listed in point 7 of Schedule 1, 0.8, and
(c) in the case of an applicant that provides a payment service listed in any one or more of points 1 to 5 of Schedule 1, 1.
Decision to grant or refuse authorisation.
18. (1) The Bank may—
(a) grant an authorisation to operate as a payment institution,
(b) refuse to grant such an authorisation, or
(c) grant such an authorisation subject to a specified condition or requirement.
(2) If the Bank proposes to refuse to grant authorisation as a payment institution, it shall give the applicant concerned written notice of its intention to refuse, setting out a statement of the reasons for the proposed refusal and specifying a period (not less than 21 calendar days) within which the applicant may make written submissions in relation to the proposed refusal.
(3) If the Bank proposes to grant authorisation as a payment institution subject to a specified condition or requirement, it shall give the applicant concerned written notice of its intention to do so, setting out a statement of the reasons for the proposed condition or requirement and specifying a period (not less than 21 calendar days) within which the applicant may make written submissions in relation to the proposed condition or requirement.
(4) In making its decision on an application referred to in paragraph (2) or (3), the Bank shall take into account any submissions made by the applicant.
Conditions for granting of authorisation.
19. (1) The Bank shall grant an authorisation only to a legal person established in the State that has its head office and its registered office in the State.
(2) The Bank shall grant an authorisation if the information and evidence accompanying the application complies with all the requirements of Regulation 10 and if the Bank’s overall assessment, having scrutinised the application, is favourable. Before granting an authorisation, the Bank may consult other relevant public authorities.
(3) The Bank shall grant an authorisation only if, taking into account the need to ensure the sound and prudent management of a payment institution, the payment institution has robust governance arrangements for its payment services business, including—
(a) a clear organisational structure with well-defined, transparent and consistent lines of responsibility,
(b) effective procedures to identify, manage, monitor and report the risks to which it is or might be exposed, and
(c) adequate internal control mechanisms, including sound administrative and accounting procedures.
Those arrangements, procedures and mechanisms shall be comprehensive and proportionate to the nature, scale and complexity of the payment services provided by the payment institution.
(4) Where a payment institution provides any payment service and is also engaged in other business activities, the Bank may require the payment institution to establish a separate entity for the payment services business if the non-payment services activities of the payment institution impair or are likely to impair either the financial soundness of the payment institution or the ability of the Bank to monitor the payment institution’s compliance with its obligations under these Regulations.
(5) The Bank shall refuse to grant an authorisation if, taking into account the need to ensure the sound and prudent management of a payment institution, it is not satisfied as to the suitability of any shareholder or member that has a qualifying holding.
(6) Where close links exist between a payment institution and another person, the Bank shall grant an authorisation only if those links do not prevent the effective exercise of its supervisory functions.
(7) The Bank shall grant an authorisation only if the laws, regulations or administrative provisions of a third country that govern a person with whom the payment institution has close links, or difficulties involved in the enforcement of those laws, regulations or administrative provisions, do not prevent the effective exercise of its supervisory functions.
(8) For the purposes of paragraphs (6) and (7) “close links” exist between two or more persons if—
(a) they are linked by—
(i) participation in ownership, direct or by way of control, of 20% or more of the voting rights or capital of an undertaking, or
(ii) a control relationship (that is, the relationship between a parent undertaking and a subsidiary, or a similar relationship between a person and an undertaking), or
(b) they are permanently linked to the same third person by a control relationship.
Bank may require adjustments to applicant’s business plan.
20. The Bank may, as a condition of granting an authorisation to an applicant, require the applicant to make a specified adjustment to the business plan submitted with its application. If the Bank requires such an adjustment to a business plan, references in these Regulations to the business plan are taken to be references to the plan as adjusted.
Communication of the decision.
21. Within three months of the receipt of an application (or, if the application is incomplete, of all the information required for the decision), the Bank shall inform the applicant concerned whether the authorisation has been granted or refused. The Bank shall give reasons if it refuses to grant the authorisation.
Chapter 3 Conditions of Authorisation
Requirements of this Chapter to be conditions of authorisation.
22. It is a condition of the authorisation of a payment institution that the institution complies at all times with the requirements of Regulations 23 to 33.
Maintenance of own funds.
23. (1) It is a condition of the authorisation of a payment institution that the institution maintains its own funds at—
(a) the higher of—
(i) the amount required by virtue of Regulation 11 as its initial capital, or
(ii) the amount calculated by whichever of Methods A, B and C the Bank permits the institution, under paragraph (2), to use, or
(b) in the case of a payment institution that the Bank permits, under paragraph (5), not to make a calculation by any of methods A, B or C, the amount required by virtue of Regulation 11 as its initial capital.
(2) Subject to paragraph (5), the Bank shall direct a payment institution in writing to employ Method A, Method B or Method C to calculate the amount of own funds that the payment institution must hold.
(3) The Bank may—
(a) direct a payment institution under paragraph (2) to employ a method of calculation other than the method it directed a payment institution to employ for the purposes of its application for authorisation, and
(b) direct a payment institution under paragraph (2) to employ a method of calculation other than the method specified in such a direction previously given.
(4) Methods A, B and C are set out in Regulations 14, 15 and 16 respectively. For the purposes of calculating the own funds of a payment institution, a reference in Regulation 14, 15 or 16 to an applicant is to be read as a reference to the payment institution concerned.
(5) The Bank may permit a payment institution, on a case by case basis, not to make any calculation by Method A, B or C if the payment institution is included in the consolidated supervision of a parent credit institution and meets the following conditions:
(a) there is no current or foreseen material practical or legal impediment to the prompt transfer of own funds or repayment of liabilities by the parent credit institution;
(b) either the parent credit institution satisfies the Bank regarding the prudent management of the payment institution and has declared, with the consent of the Bank, that it guarantees the commitments entered into by the payment institution, or the risks in the payment institution are of negligible interest;
(c) the risk-evaluation, measurement and control procedures of the parent credit institution cover the payment institution;
(d) the parent credit institution holds more than 50% of the voting rights attaching to shares in the capital of the payment institution, or has the right to appoint or remove a majority of the members of the management body of the payment institution.
(6) For the purposes of calculating the amount of own funds that a payment institution is required to hold, references in Regulations 13 to 17 to an applicant are to be read as references to the payment institution concerned.
(7) Where a payment institution is required to calculate own funds by means of Method C, it shall not allow its own funds to fall below 80% of the average of the own funds calculated using that Method over the previous 3 years.
(8) On the basis of an evaluation of the risk-management processes, risk-loss database and internal control mechanisms of a payment institution, the Bank may require the payment institution to hold an amount of own funds that is up to 20% higher than, or permit it to hold an amount of own funds that is up to 20% lower than, the amount that results from the application of the method directed by the Bank under paragraph (2).
Safeguarding of users’ funds.
24. (1) In this Regulation “users’ funds” means funds that have been received by a payment institution from payment service users or through another payment service provider for the execution of payment transactions.
(2) A payment institution that is engaged in a business activity referred to in Regulation 27(1)(c) shall safeguard users’ funds in either of the following ways:
(a) users’ funds—
(i) shall not be mixed at any time with the funds of any person other than the payment service users on whose behalf the funds are held, and
(ii) if still held by the payment institution and not yet delivered to the payee or transferred to another payment service provider by the end of the business day after the day of receipt, shall be deposited in a separate account in a credit institution or invested in assets accepted by the Bank as secure, liquid and low-risk;
(b) users’ funds shall be insured by an insurance company, or guaranteed by a credit institution, that does not belong to the same group as the payment institution, payable in the event that the payment institution is unable to meet its financial obligations, for an amount equal to that which would have been segregated if the method set out in subparagraph (a) had been used.
(3) No liquidator, receiver, administrator, examiner or creditor of a payment institution, nor the Official Assignee in Bankruptcy, has any recourse or right against users’ funds held in accordance with paragraph (2)(a)(ii) received from payment service users or through another payment service provider for the execution of payment transactions until all proper claims of payment service users or of their heirs, successors or assigns against users’ funds relating to such payment transactions have been satisfied in full.
(4) Where a payment institution that is required to safeguard users’ funds receives funds from a payment service user and part of those funds is to be used for future payment transactions and the remainder for non-payment services, the payment institution shall protect the part of the funds to be used for future payment transactions in accordance with paragraph (2). Where that part is variable or not known in advance, the payment institution may safeguard a representative part likely to be used for payment services if such a representative part can be reasonably estimated on the basis of historical data to the satisfaction of the Bank.
(5) The Bank may require a payment institution that is not engaged in other business activities referred to in Regulation 27(1)(c) to comply with the requirements of paragraph (2).
(6) The Bank may limit the application to a payment institution of a requirement under this Regulation to users’ funds of payment service users each of whom has deposited more than €600 with the institution.
Maintenance of authorisation.
25. Where any change affects the accuracy of information and evidence provided by a payment institution in its application for authorisation in accordance with Regulation 10, the payment institution shall without undue delay inform the Bank in writing accordingly.
Accounting and audit.
26. (1) For supervisory purposes, a payment institution shall provide separate accounting information for payment services and other activities, and shall provide an auditor’s report in relation to all such accounting information.
(2) The obligations of an auditor of the holder of a licence under section 47 of the Central Bank Act 1989 (No. 16 of 1989) shall be taken to apply to the auditor of a payment institution. For that application—
(a) references in that section to the holder of a licence shall be taken to be references to a payment institution,
(b) a reference in that section to depositors shall be taken to be a reference to payment service users, and
(c) references in that section to the Central Bank Acts 1942 to 1989 shall be taken to be references to these Regulations.
Activities in which a payment institution may engage.
27. (1) Apart from the provision of payment services a payment institution may engage in the following activities:
(a) the provision of operational and closely related ancillary services such as ensuring the execution of payment transactions, foreign exchange services, safekeeping activities, and the storage and processing of data;
(b) the operation of payment systems;
(c) business activities other than the provision of payment services.
(2) When a payment institution engages in the provision of one or more payment services, it may hold only payment accounts used exclusively for payment transactions. The receipt of funds by a payment institution from a payment service user with a view to the provision of a payment service does not constitute—
(a) the taking of a deposit or other repayable funds, or
(b) electronic money.
(3) A payment institution may grant credit related to a payment service referred to in point 4, 5 or 7 of Schedule 1 only if the following conditions are met:
(a) the credit shall be ancillary and granted exclusively in connection with the execution of a payment transaction;
(b) notwithstanding any law in relation to providing credit by means of credit cards, the credit shall be repaid within a short period that is not to be longer than twelve months;
(c) credit shall not be granted from funds received or held for the purpose of executing a payment transaction;
(d) the own funds of the payment institution shall at all times and to the satisfaction of the Bank be appropriate in view of the overall amount of credit granted.
(4) A payment institution shall not engage in the business of taking deposits or other repayable funds.
Use of agents.
28. (1) If a payment institution intends to provide a payment service through an agent it shall, at least 30 days before the agent commences to provide the service, notify the Bank in writing of the following:
(a) the name and address of the agent;
(b) a description of the internal control mechanisms that will be used by the agent to comply with the payment institution’s obligations in relation to money laundering and terrorist financing;
(c) the names of directors and persons responsible for the management of the agent, and
(d) evidence that they are fit and proper persons.
(2) When the Bank receives the information required by paragraph (1) it may list the agent in the Register.
(3) Before listing the agent in the Register, the Bank may, if it considers that the information provided to it is incorrect, take action to verify the information.
(4) If, after taking action to verify the information, the Bank is not satisfied that the information provided to it pursuant to paragraph (1) is correct, it may refuse to list the agent in the Register.
(5) If a payment institution wishes to provide payment services in another Member State by engaging an agent, before the Bank registers the agent, the Bank shall inform the competent authorities of the host Member State of its intention to register the agent and shall take their opinion into account.
(6) A payment institution shall ensure that any agent acting on its behalf informs payment service users that it is acting on behalf of the payment institution.
Establishment of branch in the State by payment institution authorised in another Member State.
29. (1) If a payment institution authorised in another Member State wishes to engage an agent or establish a branch in the State, and the Bank has reasonable grounds to suspect that, in connection with the intended engagement of the agent or establishment of the branch—
(a) money laundering or terrorist financing is taking place, has taken place or has been attempted, or
(b) the engagement of the agent or establishment of the branch could increase the risk of money laundering or terrorist financing,
it shall so inform the competent authorities of the payment institution’s home Member State.
(2) If a payment institution authorised in the State wishes to engage an agent or establish a branch in another Member State, and the competent authorities of that Member State inform the Bank that those competent authorities have reasonable grounds to suspect that, in connection with the intended engagement of the agent or establishment of the branch—
(a) money laundering or terrorist financing is taking place, has taken place or has been attempted, or
(b) the engagement of the agent or establishment of the branch could increase the risk of money laundering or terrorist financing,
the Bank may refuse to register the agent or branch.
Outsourcing of functions.
30. (1) For the purposes of this Regulation, an operational function is important if a defect or failure in its performance would materially impair—
(a) the continuing compliance of the payment institution concerned with the requirements of its authorisation or its other obligations under these Regulations,
(b) its financial performance, or
(c) the soundness or continuity of its payment services.
(2) If a payment institution intends to outsource an operational function of the provision of payment services, it shall notify the Bank in writing accordingly at least 30 days before the outsourcing is to commence.
(3) The Bank may direct a payment institution not to outsource an important operational function if the Bank is of the opinion that the outsourcing would:
(a) result in the delegation by senior management of its responsibility;
(b) alter the relationship and obligations of the payment institution towards its payment service users under these Regulations;
(c) undermine the conditions with which the payment institution is to comply in order to be authorised and remain so;
(d) remove or modify any other condition of the payment institution’s authorisation;
(e) materially impair the quality of the payment institution’s internal control, or
(f) materially impair the ability of the Bank to monitor the payment institution’s compliance with its obligations under these Regulations.
Liability.
31. (1) If a payment institution relies on a third party for the performance of an operational function, the payment institution shall take reasonable steps to ensure that the third party complies with the requirements of these Regulations so far as those requirements are capable of application to the third party.
(2) A payment institution remains fully liable for any acts of its employees, or any agent, branch or entity to which activities are outsourced.
Record-keeping.
32. A payment institution shall keep all appropriate records for the purpose of this Part for at least five years.
Obligation to give notice of intention to commence providing payment services in another Member State.
33. (1) A payment institution intending to commence providing payment services in another Member State (whether by means of establishing a branch or by way of an agency) shall so notify the Bank in writing at least one month before the date that it proposes to commence providing payment services in the other Member State.
(2) Within one month of receiving the notification referred to in paragraph (1), the Bank shall inform the competent authorities of the host Member State of—
(a) the name and address of the payment institution,
(b) the names of the individuals to be responsible for the management of the branch,
(c) its organisational structure, and
(d) the kind of payment services it intends to provide in the host Member State.
(3) The Bank shall cooperate with the competent authorities of the host Member State.
(4) The Bank shall notify the competent authorities of the host Member State whenever it intends to carry out an on-site inspection in the territory of the latter. However, if it so wishes, the Bank may delegate to the competent authorities of the host Member State the task of carrying out on-site inspections of the institution concerned.
(5) The Bank shall provide the competent authorities of the host Member State with all essential and relevant information, in particular information about infringements or suspected infringements by an agent, a branch or an entity to which activities are outsourced. The Bank shall communicate all relevant information upon request, and all essential information on its own initiative.
(6) Paragraphs (1) to (4) do not affect any obligation of the Bank to supervise or monitor a payment institution’s compliance with the requirements of any law in relation to money-laundering or terrorist financing.
Chapter 4 Withdrawal of authorisation
Withdrawal of authorisation.
34. (1) The Bank may withdraw an authorisation issued to a payment institution—
(a) if the institution—
(i) does not engage in the business of providing payment services in accordance with the authorisation within 12 months, expressly renounces the authorisation or ceases to engage in that business for more than six months,
(ii) obtained the authorisation through false statements or any other irregular means,
(iii) would constitute a threat to the stability of the payment system by continuing its payment services business, or
(b) on being satisfied on reasonable grounds that—
(i) the holder of the authorisation has contravened or is contravening, or has failed or is failing to comply, with a provision of this Part, a condition of the authorisation or a requirement imposed by or under this Part,
(ii) if the holder of the authorisation is a partnership, the partnership is dissolved by the death or bankruptcy of a partner or because of the operation of the Partnership Act 1890,
(iii) the winding-up of the holder of the authorisation has commenced,
(iv) the holder of the authorisation is so structured, or the business of the holder is so organised, that the holder is no longer capable of being regulated to the satisfaction of the Bank,
(v) the circumstances under which the authorisation was granted have changed to the extent that an application for authorisation would be refused had it been made in the changed circumstances,
(vi) the holder of the authorisation suspends payments due to creditors, or is unable to meet any other obligations to creditors of the holder,
(vii) if the holder of the authorisation is a branch or subsidiary of a body corporate that has its head office in another Member State, the authority of that other Member State that performs functions similar to those of the Bank under this Part has terminated the authority of that body to carry on a regulated business in that other country,
(viii) the holder of the authorisation, or an officer of the holder, is convicted of—
(I) an offence against this Part or against any other designated enactment or designated statutory instrument, or
(II) an offence involving fraud, dishonesty, breach of trust, money laundering or financing terrorism,
or
(ix) that the holder of the authorisation has failed to comply with a condition, requirement or direction imposed under these Regulations and the Bank is of the opinion that the stability and soundness of the holder is or has been materially affected by the failure.
(2) In paragraph (1)(b)(viii)(I), “designated enactment” and “designated statutory instrument” have the same respective meanings as in the Central Bank Act 1942 (No. 22 of 1942).
(3) Before withdrawing an authorisation, the Bank shall—
(a) give written notice of the proposed withdrawal to the institution concerned, setting out a summary of the relevant evidence and the reasons for the proposal and specifying a reasonable period (not less than 21 calendar days) within which the institution may make written representations concerning the proposal, and
(b) consider any representations made by the institution within the specified period.
(4) The Bank shall notify the payment institution concerned in writing of the withdrawal of an authorisation, setting out the reasons for the withdrawal.
(5) The Bank shall give public notice of the withdrawal of an authorisation.
(6) If the Bank withdraws an authorisation it shall remove from the Register the entries in relation to the payment institution concerned and any agent of it.
(7) Withdrawal of an authorisation under this Regulation takes effect on and from the date of the notice of withdrawal or, if a later date is specified in the notice, on and from that date, irrespective of whether an appeal against the withdrawal is made under Part VIIA of the Central Bank Act 1942.
Chapter 5 Small Payment Institutions
Small payment institutions — waiver of application of certain provisions of Chapter 2.
35. (1) A person qualifies as a small payment institution for the purposes of these Regulations if—
(a) the average amount of payment transactions executed by the person and any agent for which it bears full responsibility during the previous 12 months, or
(b) the average amount of payment transactions likely to be executed by the person within the next 12 months, assessed on the projected total amount of payment transactions in its business plan,
is not more than €3 million per month.
(2) The Bank may waive the application to a person of all or part of the procedure and conditions set out in Chapters 2 and 3, and may register the person as a small payment institution, if—
(a) the person satisfies the Bank that the person qualifies as a small payment institution,
(b) none of the individuals responsible for the management or operation of the person’s business has been convicted of any offence relating to money laundering or terrorist financing or any other financial crime,
(c) if the person is a body corporate, it has its head office in the State, and
(d) if the person is an individual, he or she has his or her place of residence in the State.
(3) A person registered as a small payment institution under paragraph (2) shall be taken to be a payment institution for the purposes of these Regulations except that—
(a) its registration as a payment institution is valid only in the State, and
(b) it is not entitled to provide payment services in any other Member State.
(4) The Bank may direct that a person registered as a small payment institution may engage only in a specific payment service or a specific activity referred to in subparagraph (a), (b) or (c) of Regulation 27(1).
(5) A person registered as a small payment institution in accordance with paragraph (2) shall notify the Bank of any change that may affect whether it continues to qualify as a small payment institution.
Requirement to apply for authorisation in certain circumstances.
36. (1) If a person registered as a small payment institution in accordance with Regulation 35 no longer qualifies as a small payment institution, or (in the case of a person subject to a direction under paragraph 35(4)) proposes to engage in a business activity other than the one specified in the relevant direction, the person shall apply for authorisation under Chapter 2 within 30 calendar days.
(2) If a person referred to in paragraph (1) applies for authorisation in accordance with that paragraph, within the period of 30 calendar days mentioned in that paragraph, it may continue providing payment services until the Bank notifies it of its decision on the application. If such a person fails to apply for authorisation in accordance with that paragraph, it shall cease to provide payment services at the end of that period of 30 calendar days.
Withdrawal of waiver.
37. (1) The Bank may withdraw a waiver granted to a person (in this paragraph called the “undertaking”) under Regulation 35(2)—
(a) if the undertaking—
(i) does not begin to engage in the business of providing payment services in accordance with the waiver within 12 months, expressly renounces the waiver or ceases to engage in that business for more than 6 months,
(ii) obtained the waiver through false statements or any other irregular means,
(iii) no longer qualifies as a small payment institution, or
(iv) would constitute a threat to the stability of the payment system by continuing its payment services business, or
(b) on being satisfied on reasonable grounds that—
(i) the undertaking has contravened or is contravening, or has failed or is failing to comply with, a provision of this Part, a condition of the authorisation or a requirement imposed by or under this Part,
(ii) in the case of a partnership, the partnership is dissolved by the death or bankruptcy of a partner or because of the operation of the Partnership Act 1890, or
(iii) the winding-up of the undertaking has commenced, or
(iv) the undertaking is so structured, or its business is so organised, that the person is no longer capable of being regulated to the satisfaction of the Bank, or
(v) the circumstances under which the waiver was granted have changed to the extent that an application for authorisation would be refused had the application been made in the changed circumstances, or
(vi) the undertaking suspends payments due to creditors, or is unable to meet any other obligations to its creditors, or
(vii) if the undertaking is a branch or subsidiary of a body corporate that has its head office in another country that is an EEA country, the authority of that other country that performs functions similar to those of the Bank under this Part has terminated the authority of that body to carry on a regulated business in that other country, or
(viii) the undertaking or an officer of it is convicted of—
(I) an offence against this Part or against any other designated enactment or designated statutory instrument, or
(II) an offence involving fraud, dishonesty, breach of trust, money laundering or financing terrorism.
(ix) the undertaking has failed to comply with a condition, requirement or direction imposed under these Regulations and the Bank is of the opinion that the stability and soundness of the person is or has been materially affected by the failure.
(2) Before withdrawing a waiver, the Bank shall—
(a) give written notice of the proposed withdrawal to the person concerned, setting out a summary of the relevant evidence and the reasons for the proposal and specifying a reasonable period (not less than 21 calendar days) within which the person may make written representations concerning the proposal, and
(b) consider any representations made by the person within the specified period.
(3) The Bank shall notify the person concerned in writing of the withdrawal of a waiver, setting out the reasons for the withdrawal.
(4) The Bank shall give public notice of the withdrawal of a waiver.
(5) If the Bank withdraws a waiver it shall remove from the Register the entries in relation to the person concerned.
(6) Withdrawal of a waiver under this Regulation takes effect on and from the date of the notice of withdrawal or, if a later date is specified in the notice, on and from that date, irrespective of whether an appeal against the revocation is made under Part VIIA of the Central Bank Act 1942.
Part 3 Payment Systems
Definition (Part 3).
38. In this Part “payment system” has, except where the context requires otherwise, the meaning given by Article 4(6) of the Payment Services Directive.
Application of Part II of Central Bank Act 1997 to payment systems.
39. (1) Part II of the Central Bank Act 1997 (No. 8 of 1997) applies in relation to a payment system in accordance with this Regulation.
(2) For the purposes of that application, a reference in a provision of Part II of the Central Bank Act 1997 to a payment system shall be read as a reference to a payment system within the meaning given by Regulation 38.
(3) In deciding whether to approve the rules of a payment system, the Bank shall ensure that the rules on access by payment service providers are objective, non-discriminatory and proportionate and do not inhibit access more than is necessary to protect against specific risks such as settlement risk, operational risk and business risk and to protect the financial and operational stability of the payment system.
(4) A payment system shall not impose on a payment service provider, a payment service user or another payment system—
(a) any rule restricting effective participation in another payment system,
(b) any rule that discriminates between payment service providers in relation to their rights, obligations and entitlements, or
(c) any restriction on the basis of institutional status.
(5) Paragraphs (1) to (4) do not apply to—
(a) a payment system that is a relevant system within the meaning given by the European Communities (Settlement Finality) Regulations 2008 (S.I. No. 88 of 2008),
(b) a payment system composed exclusively of payment service providers belonging to a group composed of entities linked by capital where one of the linked entities has effective control over the other linked entities; or
(c) a payment system where a sole payment service provider (whether as a single entity or as a group)—
(i) acts or can act as the payment service provider for both the payer and the payee and is exclusively responsible for the management of the system, and
(ii) licenses other payment service providers to participate in the system and the latter have no right to negotiate fees between or amongst themselves in relation to the payment system although they may establish their own pricing in relation to payers and payees.
Bank’s powers in relation to payment systems.
40. (1) If the Bank considers that a rule of a payment system contravenes Regulation 39(4), the Bank may direct the operator of the payment system by notice in writing to make a specified modification to the rules of the payment system within a specified period.
(2) If a payment system operator to which a direction is given under paragraph (1) does not comply with the direction within the period specified in it for that purpose, the Bank may apply to the High Court for an order directing the payment system operator to comply with the direction.
Court’s additional powers in relation to payment systems.
41. A payment service provider may apply to the High Court for a declaration that a rule of a payment system contravenes Regulation 39(4).
Part 4 Transparency of Conditions and Information Requirements for Payment Services
Chapter 1 General Rules
Scope of this Part.
42. (1) This Part applies to single payment transactions and to framework contracts and payment transactions covered by them. The parties to a payment transaction or framework contract may agree that this Part does not, or particular provisions of it do not, apply to the transaction or contract if the payment service user is not a consumer.
(2) This Part applies to a micro enterprise in the same way as to a consumer.
(3) For the purposes of this Part, an undertaking shall be taken to be a micro enterprise—
(a) for the purposes of a single payment transaction if it satisfies the definition in Regulation 3 at the time of initiation of the transaction, or
(b) for the purposes of a framework contract if it satisfies that definition at the time of entering into the framework contract.
Application of this Part.
43. (1) This Part applies in relation to a payment only if the payer’s payment service provider and the payee’s payment service provider are both located in Member States, or the only payment service provider in the payment transaction is located in a Member State.
(2) This Part applies to payment services denominated in euro or a currency of a Member State outside the euro area.
Operation of other legislative provisions.
44. (1) Subject to paragraph (2), nothing in this Part affects the operation of any other law giving effect to an Act of the European Communities that imposes additional requirements in relation to the giving of prior information.
(2) If both this Part and the European Communities (Distance Marketing of Consumer Financial Services) Regulations 2004 (S.I. No. 853 of 2004) apply in relation to a payment transaction or framework contract, the requirements of Regulation 6 of those Regulations (to the extent that that Regulation requires the supply of the information specified in points (a) to (i), (p), (q) and (t) to (w) of Schedule 1 to those Regulations) are superseded by the requirements of—
(a) in a case to which Chapter 2 applies, Regulations 47 and 48, or
(b) in a case to which Chapter 3 applies, Regulations 52 and 53.
Charges for information.
45. (1) A payment service provider shall not charge a payment service user for providing information in accordance with this Part.
(2) A payment service provider and a payment service user may agree on charges for additional or more frequent information, or transmission by a means other than that specified in the relevant framework contract, provided at the payment service user’s request.
(3) If a payment service provider imposes a charge for information in accordance with paragraph (2), the charge shall be appropriate and in line with the payment service provider’s actual costs.
Chapter 2 Single Payment Transactions
Single payment transactions.
46. This Chapter applies to single payment transactions not covered by a framework contract.
General information to be supplied in advance.
47. (1) Before a payment service user is bound by a single-payment service contract or offer, the payment service provider concerned shall make available to the payment service user the information specified in Regulation 48.
(2) If a single-payment service contract has been concluded at the request of a payment service user using a means of distance communication which does not enable the payment service provider concerned to comply with paragraph (1), the payment service provider shall comply with that paragraph immediately after the execution of the relevant payment transaction.
(3) A payment service provider may comply with paragraph (1) by supplying a copy of the relevant draft single payment service contract or the relevant draft payment order that includes the information specified in Regulation 48.
Information and conditions.
48. (1) A payment service provider shall provide or make available to a payment service user the following information:
(a) a specification of the information or unique identifier that must be provided by the user for a payment order to be properly executed;
(b) the maximum execution time for the payment service to be provided;
(c) all the charges payable by the user to the provider and, where any such charge can be broken down into components, a statement of those components;
(d) if a currency conversion is involved, the actual or reference exchange rate to be applied to the payment transaction.
(2) A payment service provider shall also provide or make available to a payment service user any information specified in Regulation 53 that is relevant in the particular case.
Information for payer after receipt of payment order.
49. Immediately after a payer’s payment service provider receives a payment order, the provider shall provide or make available to the payer the following information:
(a) a reference enabling the payer to identify the payment transaction concerned and, where required by any law relating to money-laundering or the prevention of terrorist financing or otherwise appropriate, information relating to the payee;
(b) the amount of the payment in the currency used in the payment order;
(c) all the charges payable by the payer to the provider and, where any such charge can be broken down into components, a statement of those components;
(d) if a currency conversion is involved, the exchange rate used in the transaction by the payer’s payment service provider or a reference to it, if different from the rate notified in accordance with Regulation 48(1)(d), and the amount of the payment after that currency conversion; and
(e) the date of receipt of the payment order.
Information for payee after execution of payment transaction.
50. Immediately after the execution of a payment transaction, the payee’s payment service provider shall provide or make available to the payee the following information:
(a) a reference enabling the payee to identify the transaction and, where required by any law relating to money-laundering or the prevention of terrorist financing or otherwise appropriate, the payer and any information transferred with the transaction;
(b) the amount of the payment in the currency in which the funds are at the payee’s disposal;
(c) all the charges payable by the payee to the provider and, where any such charge can be broken down into components, a statement of those components;
(d) where applicable, the exchange rate used in the transaction by the payee’s payment service provider, and the amount of the payment before that currency conversion; and
(e) the credit value date.
Chapter 3 Framework Contracts
Scope of this Chapter.
51. (1) This Chapter applies to payment transactions covered by a framework contract.
(2) When a payment order for a single payment transaction is transmitted by means of a payment instrument covered by a framework contract, the payment service provider is not obliged to provide or make available information that has already been given to the payment service user on the basis of a framework contract with another payment service provider, or will be given to him or her according to that framework contract.
General information to be supplied in advance.
52. (1) In good time before a payment service user is bound by a framework contract or offer, the payment service provider concerned shall provide the payment service user on paper or on another durable medium with the information specified in Regulation 53.
(2) If a framework contract has been concluded at the request of a payment service user using a means of distance communication that does not enable the payment service provider concerned to comply with paragraph (1), the payment service provider shall comply with that paragraph immediately after the conclusion of the contract.
(3) A payment service provider may comply with paragraph (1) by supplying a copy of a draft framework contract including the information specified in Regulation 53.
Information to be provided.
53. A payment service provider shall provide a payment service user with the following information:
(a) contact details of—
(i) in the case of a payment service provider that is registered in the State, the Bank and either the Register or any other public register of the authorisation of the payment service provider, or
(ii) in the case of a payment service provider that is registered in another Member State, the competent authorities and the register established in that Member State,
including any relevant website addresses;
(b) about the provider—
(i) the provider’s name, the geographical address of its head office and, where applicable, the geographical address of its agent or branch in the State, and any other address, including electronic mail address, necessary for communication with the provider, and
(ii) the provider’s registration number or other means of identification in the Register;
(c) about using the payment service—
(i) a description of the main characteristics of the payment service to be provided,
(ii) a specification of the information or unique identifier that must be provided by the user for a payment order to be properly executed,
(iii) the form of, and procedure for, giving consent to the execution of a payment transaction and withdrawal of such consent,
(iv) a statement of the form and procedure for giving consent to the execution of a payment transaction, and the withdrawal of such a consent, in accordance with Regulations 68 and 82,
(v) a reference to the time of receipt of a payment order (as determined in accordance with Regulation 80) and the cut-off time, if any, established by the provider,
(vi) the maximum execution time for the payment services to be provided, and
(vii) whether spending limits for the use of the payment instrument can be agreed;
(d) about charges, interest and exchange rates—
(i) all charges payable by the user to the provider and, where each such charge can be broken down into components, a statement of those components,
(ii) where applicable, the interest and exchange rates to be applied or, if reference interest and exchange rates are to be used, the method of calculating the actual interest, and the relevant date and index or base for determining such reference interest or exchange rate, and
(iii) if so agreed, a statement that changes in reference interest or exchange rate are applicable immediately and information requirements related to such changes,
(e) about communication—
(i) if applicable, the means of communication, including the technical requirements for the user’s equipment, agreed between the parties for the transmission of information or notifications,
(ii) how, and how often information required by these Regulations is to be provided or made available,
(iii) the language or languages in which the framework contract will be concluded and of communication during the contractual relationship, and
(iv) a statement of the user’s right to receive a copy of the terms of the contract and information,
(f) about safeguards and corrective measures—
(i) where a payment instrument is involved, a description of the steps that the user is to take in order to keep the payment instrument safe and how to notify the payment service provider on becoming aware of the loss, theft or misappropriation of the payment instrument or its use in an unauthorised way,
(ii) if so agreed, the conditions under which the payment service provider reserves the right to block a payment instrument,
(iii) the liability of the payer for any unauthorised payment transaction, including a statement of the amount of that liability,
(iv) how and within what period the user is to notify the provider of any unauthorised or incorrectly executed payment transaction and the provider’s liability for any unauthorised payment transaction,
(v) the liability of the payment service provider for the execution of payment transactions, and
(vi) the conditions for refund;
(g) about how to change or terminate the framework contract—
(i) if agreed, a statement that the user will be taken to have accepted any change in the conditions, unless he or she notifies the provider that he or she does not accept it before the date of its proposed entry into force,
(ii) the duration of the contract, and
(iii) the right of the payment service user to terminate the contract and any agreement relating to termination;
(h) about redress—
(i) details of any contractual provision that specifies either the law applicable to the contract or the court that has jurisdiction, and
(ii) the out-of-court complaint and redress procedures available to the payment service user.
Access to information and conditions of framework contracts.
54. At any time during the contractual relationship a payment service user has the right to receive, on request, a statement of the terms of the framework contract and the information specified in Regulation 53 on paper or on another durable medium.
Changes in conditions of framework contracts.
55. (1) Subject to paragraphs (3), (4) and (5), a payment service provider shall notify users of the payment service of any proposed change in a framework contract or in the information referred to in Regulation 53 at least two months before the proposed date of effect of the change.
(2) In the case of a framework contract that provides for the payment service user concerned to be taken to have accepted any change in the terms of the contract that has been notified to him or her, when the payment service provider concerned notifies the payment service user of a proposed change the payment service provider shall inform the payment service user that—
(a) he or she is to be taken to have accepted the change if he or she does not notify the payment service provider that he or she does not accept it before the proposed date of its entry into force, and
(b) he or she has the right to terminate the contract immediately and without charge before the proposed date of the application of the change.
(3) A payment service provider may apply a change in the interest rate or exchange rate applicable immediately and without notice, if so agreed upon in the framework contract and if the change is based on an agreed reference interest or exchange rate.
(4) A payment service provider may apply without notice a change in an interest rate or exchange rate that is more favourable to payment service users.
(5) A payment service provider shall notify the payment service user of any change in the interest rate at the earliest opportunity, unless the parties have agreed on how and how often that information is to be provided or made available.
(6) Any change in the interest or exchange rate used in payment transactions shall be implemented and calculated in a manner that does not discriminate against particular payment service users.
Termination.
56. (1) A payment service user may terminate a framework contract at any time, unless the parties have agreed on a period of notice. Such a period of notice may not exceed one month.
(2) A payment service provider shall not impose a charge for the termination of a framework contract concluded for a fixed period exceeding 12 months or for an indefinite period if the contract has been in effect for 12 months or longer. In all other cases any charge for the termination of a framework contract shall be appropriate and in line with the payment service provider’s costs.
(3) If agreed in the relevant framework contract, a payment service provider may terminate a framework contract concluded for an indefinite period by giving at least two months’ notice.
(4) If a framework contract is terminated, the payment service provider concerned shall impose charges for payment services that are levied on a regular basis only proportionally up to the termination of the contract. If such charges are paid in advance, the payment service provider shall reimburse the payment service user concerned proportionally for any payment attributable to a time after the termination.
(5) Nothing in this Regulation affects the operation of any other law rendering a framework contract unenforceable or void.
Information before execution of individual payment transactions.
57. If a payer requests a payment service provider to make an individual payment transaction under a framework contract, the payment service provider shall at the payer’s request provide information on—
(a) the maximum execution time for the transaction, and
(b) all the charges payable by the user to the provider and, where any such charge can be broken down into components, a statement of those components.
Information for the payer on individual payment transactions.
58. (1) If a payer requests a payment service provider to make an individual payment transaction under a framework contract, after the amount of the transaction is debited from the payer’s account or, where the payer does not use a payment account, after the receipt of the payment order, the payment service provider shall provide the payer without undue delay with the following information:
(a) a reference enabling the payer to identify the transaction and, where required by or under any law relating to money-laundering or the prevention of terrorist financing or otherwise appropriate, information relating to the payee;
(b) the amount of the transaction in the currency in which the payer’s payment account is debited or the currency used for the payment order;
(c) the total charge payable for the transaction by the user to the provider and, where the total charge can be broken down into components, a statement of those components, or the interest payable by the payer; and
(d) where a currency conversion is involved, the exchange rate used in the transaction by the payment service provider, and the amount of the payment after that currency conversion; and
(e) the debit value date or the date of receipt of the payment order.
(2) A framework contract may include a condition that the information required by paragraph (1) is to be provided or made available periodically (at least once a month) and in an agreed manner that allows the payer to store the information and reproduce it unchanged.
Information for the payee on individual payment transactions.
59. (1) After the execution of an individual payment transaction under a framework contract, the payee’s payment service provider shall provide the payee without undue delay with the following information:
(a) a reference enabling the payee to identify the transaction and, where required by or under any law relating to money-laundering or the prevention of terrorist financing, the payer, and any information transferred with the transaction;
(b) the amount of the payment in the currency in which the payee’s payment account is credited;
(c) the total charge payable for the transaction by the user to the provider and, where the total charge can be broken down into components, a statement of those components or the interest payable by the payee;
(d) where a currency conversion is involved, the exchange rate used in the transaction by the payee’s payment service provider, and the amount of the payment before that currency conversion; and
(e) the credit value date.
(2) A framework contract may include a condition that the information referred to in paragraph (1) is to be provided or made available periodically (at least once a month) and in an agreed manner that allows the payee to store the information and reproduce it unchanged.
Information requirements for low-value payment instruments and electronic money.
60. (1) In this Regulation “low-value payment instrument” means a payment instrument that, according to the relevant framework contract—
(a) is not prepaid, relates to payment transactions not wholly within the State, and—
(i) concerns only payment transactions none of which exceeds €30,
(ii) has a spending limit of €150, or
(iii) does not store more than €150 at any time,
(b) is not prepaid, relates to payment transactions wholly within the State, and—
(i) concerns only payment transactions none of which exceeds €60,
(ii) has a spending limit of €300, or
(iii) does not store more than €300 at any time, or
(c) is prepaid and—
(i) concerns only payment transactions none of which exceeds €500,
(ii) has a spending limit of €500, or
(iii) does not store more than €500 at any time.
(2) In relation to a low-value payment instrument—
(a) despite Regulations 52, 53 and 57, the payment service provider need provide the payer only with information on the main characteristics of the payment service, including the way in which the payment instrument can be used, liability, charges levied and other material information needed to make an informed decision and an indication of where the other information specified in Regulation 53 is easily accessible,
(b) the payment service provider and payer may agree that, despite Regulation 55, the payment service provider need not propose changes in the conditions of the framework contract in the way provided for in Regulation 52(1), and
(c) the payment service provider and payer may agree that, despite Regulations 58 and 59, after the execution of a payment transaction—
(i) the payment service provider need provide or make available only a reference enabling the payment service user to identify the payment transaction, the amount of the payment transaction and any charges (or, in the case of several payment transactions of the same kind to the same payee, information on the total amount and charges for those transactions), and
(ii) the payment service provider need not provide or make available information referred to in subparagraph (i) if the payment instrument is used anonymously or if the payment service provider is not otherwise technically able to provide it, but the payment service provider shall provide the payer with a way of verifying the amount of funds stored.
Chapter 4 Common Provisions
Currency and currency conversion.
61. (1) Payments shall be made in the currency agreed between the parties.
(2) If before the initiation of a payment transaction a payment service provider or payee offers a payer the service of currency conversion, and the conversion is to be made by the payee or at the point of sale, the party offering the currency conversion service shall disclose to the payer all charges and the exchange rate to be used for converting the payment. If the payer accepts the offer, the payer shall be taken to agree to the currency conversion service on that basis.
Information on additional charges or reductions.
62. (1) Where a payee imposes a charge or offers a reduction for the use of a particular payment instrument, the payee shall so inform the payer concerned before the initiation of a relevant payment transaction.
(2) Where a payment service provider or a third party imposes a charge for the use of a particular payment instrument, the provider or third party shall so inform the payment service user concerned before the initiation of a relevant payment transaction.
Manner in which information to be given.
63. (1) Where a provision of this Part requires a payment service provider to give information to a payment service user, the payment service provider shall provide or make available the information—
(a) in an easily accessible manner,
(b) in easily understandable words and in a clear and comprehensible form,
(c) in Irish or English, as agreed between the payment service provider and the payment service user, or in any other language agreed between them, and
(d) if the payment service user so requests, on paper or on another durable medium.
(2) For the purposes of paragraph (1)(d), a durable medium is one that enables a payment service user to store information addressed personally to him or her in a way accessible for future reference for a period of time adequate to the purposes of the information and allows the stored information to be reproduced unchanged.
Part 5 Rights and Obligations in Relation to the Provision and Use of Payment Services
Chapter 1 Common Provisions
Scope.
64. In the case of a payment service user that is not a consumer, the parties to a payment transaction or a framework contract may agree that any one or more of Regulation 66(1), Regulation 68(4), and Regulations 73, 75, 76, 77, 82 and 90 do not apply in whole or in part. The parties may also agree on a period different from that specified in Regulation 72.
Application of this Part.
65. (1) This Part (except Regulation 88) applies in relation to a payment only if the payer’s payment service provider and the payee’s payment service provider are each located in a Member State, or the only payment service provider in the payment transaction is located in a Member State.
(2) This Part applies to payment services denominated in euro or a currency of a Member State outside the euro area.
Charges applicable.
66. (1) A payment service provider shall not charge a payment service user for the fulfilment of its information obligations or corrective and preventive measures under this Part unless a provision of this Part so permits. Any charges imposed shall be agreed between the payment service user and the payment service provider and shall be appropriate and in line with the payment service provider’s actual costs.
(2) If a payment transaction does not involve any currency conversion, the payee shall pay the charges levied by his or her payment service provider, and the payer shall pay the charges levied by his or her payment service provider.
(3) A payment service provider shall not prevent a payee from requesting a payer to pay a charge or from offering a payer a reduction for the use of a particular payment instrument.
Right of payment service provider and user to agree on application of certain provisions of these Regulations.
67. (1) In this Regulation “low-value payment instrument” means a payment instrument that, according to the relevant framework contract—
(a) where the payment instrument is not prepaid, and relates to payment transactions not wholly within the State—
(i) concerns only payment transactions none of which exceeds €30,
(ii) has a spending limit of €150, or
(iii) does not store more than €150 at any time.
(b) where the payment instrument is not prepaid, and relates to payment transactions wholly within the State—
(i) concerns only payment transactions none of which exceeds €60,
(ii) has a spending limit of €300, or
(iii) does not store more than €300 at any time, and
(c) where the payment instrument is prepaid—
(i) concerns only payment transactions none of which exceeds €500,
(ii) has a spending limit of €500, or
(iii) does not store more than €500 at any time.
(2) In relation to low-value payment instruments, a payment service provider may make any one or more of the following agreements with a payment service user:
(a) if the relevant payment instrument cannot be blocked or its further use prevented, that Regulation 70(1)(b), subparagraphs (c), (d) and (e) of Regulation 71(1) and paragraphs (3) and (4) of Regulation 75 do not apply;
(b) if the relevant payment instrument is used anonymously or the payment service provider is not in a position, for other reasons intrinsic to the instrument, to prove that a payment transaction was authorised, that Regulations 73 and 74 and paragraphs (1) and (2) of Regulation 75 do not apply;
(c) if the non-execution of a payment order is apparent from the context, that despite paragraphs (1) to (3) of Regulation 81, the payment service provider need not notify the payment service user of the refusal of a payment order;
(d) despite Regulation 82, that the payer may not revoke the payment order after transmitting the payment order or giving his or her consent to execute the payment transaction to the payee;
(e) despite Regulations 85 and 86, that other execution periods apply.
Chapter 2 Authorisation of Payment Transactions
Consent and withdrawal of consent.
68. (1) A payment transaction is authorised only if the payer concerned has consented to its execution. A payer can authorise a payment transaction before or, if agreed between the payer and the payment service provider concerned, after the execution of the payment transaction.
(2) Consent to execute a payment transaction or a series of payment transactions is valid only if given in a form agreed between the payer and payment service provider concerned.
(3) In the absence of consent, a payment transaction is unauthorised.
(4) A payer may withdraw his or her consent at any time before the time of irrevocability under Regulation 82. A payer may withdraw his or her consent to execute a series of payment transactions with the effect that any future payment transaction is unauthorised.
(5) The procedure for giving consent shall be as agreed between the payer and the payment service provider.
Limits of the use of payment instruments.
69. (1) If a specific payment instrument is used for the purposes of giving consent, the payer and the payment service provider concerned may agree on a spending limit for payment transactions executed through that payment instrument.
(2) If agreed in the relevant framework contract, a payment service provider may reserve the right to block a payment instrument for objectively justified reasons related to the security of the payment instrument, any suspicion of unauthorised or fraudulent use of the payment instrument or, in the case of a payment instrument with a credit line, a significantly increased risk that the payer may be unable to fulfil his or her obligation to pay.
(3) In such cases the payment service provider shall inform the payer in an agreed manner of the blocking of the payment instrument and the reasons for it, if possible before the payment instrument is blocked and at the latest immediately after the blocking, unless giving such information would compromise the security of the payment service provider or is prohibited by another law.
(4) The payment service provider shall unblock the payment instrument or replace it with a new payment instrument once the reasons for blocking no longer exist.
Obligations of payment service users in relation to payment instruments.
70. (1) The obligations of a payment service user entitled to use a payment instrument are—
(a) of using the payment instrument in accordance with the terms governing its issue and use, and
(b) of notifying the payment service provider that issued the instrument, or an entity specified by that payment service provider, without undue delay on becoming aware of the loss, theft or misappropriation of the payment instrument or its unauthorised use.
(2) For the purposes of paragraph (1)(a), a payment service user shall, as soon as he or she receives a payment instrument, take all reasonable steps to keep its personalised security features safe.
Obligations of the payment service provider in relation to payment instruments.
71. (1) The payment service provider that issues a payment instrument has the following obligations:
(a) that of making sure that the personalised security features of the payment instrument are not accessible to anyone other than the payment service user entitled to use the instrument;
(b) that of not sending an unsolicited payment instrument unless a payment instrument already given to the same payment service user is to be replaced;
(c) that of ensuring that appropriate means are available at all times to enable the payment service user concerned to give a notification under Regulation 70(1)(b) or ask for the unblocking of the instrument;
(d) on request, to provide the payment service user with the means to prove, for 18 months after giving such a notification, that he or she did so; and
(e) that of preventing the use of the instrument once such a notification has been given.
(2) Nothing in paragraph (1) detracts from the obligations of a payment service user under Regulation 70.
(3) A payment service provider bears the risk of sending a payment instrument to the payer or of sending any personalised security features of it.
Rectification of unauthorised, etc., payment transactions dependent on notice.
72. A payment service user is entitled to rectification from a payment service provider of an unauthorised or incorrectly executed payment transaction giving rise to a claim (including a claim referred to in Regulation 90) only if he or she notifies the payment service provider without undue delay on becoming aware of the transaction, and no later than 13 months after the debit date, unless the payment service provider is obliged to provide or make available information on the transaction in accordance with Part 4 and has failed to do so.
Evidence on authentication and execution of payment transactions.
73. (1) If a payment service user denies having authorised an executed payment transaction or claims that a payment transaction was not correctly executed, it is for the payment service provider concerned to prove that the transaction was authenticated, accurately recorded, entered in the accounts and not affected by a technical breakdown or some other error or failure.
(2) If a payment service user denies having authorised an executed payment transaction, the use of a payment instrument recorded by the payment service provider is not in itself necessarily sufficient to prove either that the payment transaction was authorised by the payer or that the payer acted fraudulently or intentionally or failed, because he or she acted with gross negligence, to fulfil one or more of his or her obligations under Regulation 70.
Payment service provider’s liability for unauthorised payment transactions.
74. (1) In the case of an unauthorised payment transaction, the payer’s payment service provider shall, if the payer concerned has given notice in accordance with Regulation 72, refund to the payer immediately the amount of the transaction and, if necessary, restore the debited payment account to the state it would have been in had the transaction not taken place.
(2) Paragraph (1) does not affect any other right that the payer concerned may have to obtain compensation (including damages).
(3) Paragraph (1) does not apply to electronic money if the payer’s payment service provider cannot freeze the payment account or block the payment instrument.
Payer’s liability for certain unauthorised payment transactions.
75. (1) Despite Regulation 74, and subject to paragraphs (2) to (5), a payer shall bear the loss relating to unauthorised payment transactions on the payer’s account, up to €75 in total, if the transaction results from—
(a) the use of a lost or stolen payment instrument, or
(b) if the payer has failed to keep a payment instrument’s personalised security features safe, its misappropriation.
(2) A payer shall bear all the losses relating to an unauthorised payment transaction if he or she incurred them by acting fraudulently or by failing, intentionally or by acting with gross negligence, to fulfil one or more of his or her obligations under Regulation 70.
(3) A payer shall not bear any financial consequences resulting from the use of a lost, stolen or misappropriated payment instrument after giving notice in accordance with Regulation 70(1)(b), unless he or she has acted fraudulently.
(4) If a payment service provider does not provide appropriate means for a payer to give notice at any time of a lost, stolen or misappropriated payment instrument, a payer is not liable for the financial consequences of the use of such a payment instrument, unless he or she has acted fraudulently.
(5) Paragraph (1) does not apply to electronic money if the payer’s payment service provider cannot freeze the payment account or block the payment instrument.
Refunds for payment transactions initiated by or through a payee.
76. (1) A payer is entitled to a refund from the payment service provider concerned of an authorised payment transaction initiated by or through a payee that has already been executed, if—
(a) the authorisation did not specify the exact amount of the payment transaction when the authorisation was made, and
(b) the amount of the payment transaction exceeded the amount the payer could reasonably have expected taking into account his or her previous spending pattern, the conditions of the relevant framework contract and the circumstances of the case.
(2) At a payment service provider’s request, a payer shall provide factual information relating to the circumstances of the case.
(3) The refund is to be of the full amount of the payment.
(4) In the case of a direct debit the payer and payment service provider concerned may agree in the relevant framework contract that the payer is entitled to a refund from the payment service provider even if the conditions in paragraph (1) are not met.
(5) For the purposes of paragraph (1)(b), a payer may not rely on currency exchange considerations if the reference exchange rate agreed with the payment service provider concerned was applied.
(6) A payer and payment service provider may agree in a framework contract that the payer has no right to a refund where—
(a) the payer has consented to the execution of the payment transaction in advance directly to the payment service provider, and
(b) where applicable, the payment service provider or the payee concerned provided or made available to the payer information on the transaction in an agreed manner at least four weeks before the due date.
Requests for refunds for payment transactions initiated by or through a payee.
77. (1) A payer may request a refund under Regulation 76 up to eight weeks after the date on which the relevant funds were debited.
(2) Within ten business days of receiving a request for a refund, the payment service provider concerned shall either refund the full amount of the payment transaction or provide reasons for refusing the refund, and contact details for the Bank and the Financial Services Ombudsman.
(3) A payment service provider may not refuse a refund in a case to which Regulation 76(4) applies.
No liability in certain circumstances.
78. A payment service provider is not liable under this Chapter in abnormal and unforeseeable circumstances beyond its control, the consequences of which would have been unavoidable despite all efforts to the contrary, or that arise from other legal obligations.
Other compensation not prevented.
79. Nothing in this Chapter affects a person’s right to compensation in accordance with the law applicable to the relevant contract.
Chapter 3 Execution of payment transactions
Receipt of payment orders.
80. (1) The time of receipt of a payment order by the payment service provider of the payer concerned is the time when it is received by that provider (whether transmitted directly by the payer or indirectly by or through a payee). If the time of receipt is not on a business day for that payment service provider, the order is to be taken to have been received on the next business day.
(2) A payment service provider may establish a cut-off time near the end of a business day beyond which any payment order received is to be taken to have been received on the next business day.
(3) If the payment service user that initiates a payment order agrees with a payment service provider that the payment order is to be executed on a specific day or at the end of a specified period or on the day on which the payer concerned has set funds at the payment service provider’s disposal, the time of receipt is to be taken to be the agreed day. If the agreed day is not a business day for the payment service provider, the payment order is to be taken to have been received on the next business day.
Refusal of payment orders.
81. (1) If a payment service provider refuses to execute a payment order, the provider shall give the payment service user notice of the refusal and, if possible, the reasons for it and the procedure for correcting any factual mistakes that led to it, unless prohibited by any other law.
(2) A payment service provider shall give or make available the notice in an agreed manner at the earliest opportunity, and in any case, within the period specified in, or determined in accordance with, Regulation 85.
(3) A framework contract may include a condition that the payment service provider concerned may charge for such a notification in the case of a refusal that is objectively justified.
(4) A payer’s payment service provider shall not refuse to execute an authorised payment order in a case where all the conditions set out in the relevant framework contract are met regardless of whether the payment order is initiated by a payer or by or through a payee. However, this paragraph does not require a payment service provider to make a payment that is prohibited by another law.
(5) For the purposes of Regulations 85 and 90 a payment order execution of which has been refused shall be taken not to have been received.
Irrevocability of payment orders.
82. (1) Subject to paragraphs (2) to (5), a payment service user may not revoke a payment order after it is received by the payer’s payment service provider.
(2) If a payment transaction is initiated by or through the payee, the payer may not revoke the relevant payment order after transmitting it or giving the payee his or her consent to execute the transaction.
(3) However, in the case of a direct debit the payer may revoke the relevant payment order until the end of the business day before the day agreed for debiting the funds. Such a revocation does not affect any right of the payer to a refund.
(4) In a case to which Regulation 80(3) applies, the payment service user concerned may revoke a payment order until the end of the business day before the agreed day.
(5) After the time limits specified in paragraphs (1) to (4), a payment order may be revoked only if the payment service user and payment service provider concerned so agree. In the cases referred to in paragraphs (2) and (3), the payee’s agreement is also required. If so agreed in the relevant framework contract, the payment service provider may charge for revocation under this Regulation.
Amounts transferred and amounts received.
83. (1) In the execution of a payment transaction, the payer’s payment service provider, the payee’s payment service provider and any intermediary shall transfer the full amount of the payment transaction and shall not deduct any charge from the amount transferred.
(2) However, the payee and the payee’s payment service provider may agree that the payment service provider may deduct its charge from the amount transferred before crediting it to the payee. In such a case, the full amount of the payment transaction and the charge shall be shown separately in the information given to the payee.
(3) If any charge other than one referred to in paragraph (2) is deducted from the amount transferred, the payer’s payment service provider shall ensure that the payee receives the full amount of the payment transaction initiated by the payer. In the case of a payment transaction initiated by or through the payee, the payee’s payment service provider shall ensure that the full amount of the payment transaction is received by the payee.
Execution time and value date.
84. (1) Regulations 85 to 88 apply to—
(a) payment transactions in euro, and
(b) payment transactions involving only one conversion between euro and another currency of a Member State if—
(i) the currency conversion is carried out in that other Member State and
(ii) in the case of a cross-border payment transaction, the cross-border transfer takes place in euro.
(2) Regulation 88 applies to other payment transactions to which these Regulations apply.
(3) Regulations 85 to 87 apply to other payment transactions to which these Regulations apply unless otherwise agreed between the payment service user and payment service provider concerned. However, when a payment service user and payment service provider agree on a longer period than laid down in Regulation 85, for intra-Community payment transactions the period shall not exceed 4 business days after the time of receipt of the relevant payment order.
Payment transactions to payment account.
85. (1) Subject to paragraph (2), a payer’s payment service provider shall ensure that, after the time of receipt of a payment order, the amount of the relevant payment is credited to the payee’s payment service provider’s account by the end of the next business day.
(2) A payer and a payment service provider may agree on a period of no longer than 3 business days instead of the period specified in paragraph (1).
(3) Paragraph (2) and any agreement made in reliance on it cease to have effect at the end of 31 December 2011.
(4) The periods specified in paragraphs (1) and (2) are extended by one business day in relation to paper-initiated payment transactions.
(5) The payment service provider of the payee concerned shall value-date the payment and make the amount of the payment available to the payee’s payment account, in accordance with Regulation 88, after the payment service provider has received the funds.
(6) A payee’s payment service provider shall transmit a payment order initiated by or through the payee to the payer’s payment service provider concerned within the period agreed between the payee and the payee’s payment service provider so as to enable settlement, as far as direct debit is concerned, on the agreed due date.
Absence of payee’s payment account with the payment service provider.
86. Where a payee does not have a payment account with a payment service provider, a payment service provider who receives funds for the payee shall make the funds available to the payee within the period specified in or determined in accordance with Regulation 85.
Cash placed on a payment account.
87. (1) Where a consumer places cash on a payment account with a payment service provider in the currency of that account, the payment service provider shall ensure that the amount is made available and value-dated immediately after the time of receipt of the funds.
(2) Where a payment service user that is not a consumer places cash on a payment account with a payment service provider in the currency of that account, the payment service provider shall ensure that the amount is made available and value-dated on the next business day after the receipt of the funds.
Value date and availability of funds.
88. (1) The credit value date for the payee’s payment account is not to be later than the business day on which the amount of the payment transaction is credited to the payee’s payment service provider’s account. A payee’s payment service provider shall ensure that the amount of a payment transaction is at the payee’s disposal immediately after that amount is credited to the payee’s payment service provider’s account.
(2) The debit value date for the payer’s payment account is not to be earlier than the time at which the amount of the payment transaction is debited to that payment account.
Incorrect unique identifiers.
89. (1) If a payment order is executed in accordance with the correct unique identifier, the payment order is to be taken to have been executed correctly so far as the order required payment to the payee specified by the unique identifier.
(2) If a unique identifier provided by a payment service user is incorrect, the payment service provider concerned is not liable for non-execution or defective execution of the relevant payment transaction. However, the payer’s payment service provider concerned shall make reasonable efforts to recover the funds involved in the transaction.
(3) If so agreed in the relevant framework contract, a payment service provider may charge a payment service user for recovery.
(4) If a payment service user provides information additional to the information or unique identifier that must be provided by the user for a payment order to be properly executed, the payment service provider concerned remains liable only for the execution of payment transactions in accordance with the unique identifier so provided.
Non-execution or defective execution.
90. (1) Where a payment order is initiated by the payer concerned, the payer’s payment service provider is liable to the payer for correct execution of the relevant payment transaction, unless the payment service provider can prove to the payer and, where relevant, to the payee’s payment service provider that the payee’s payment service provider received the amount of the payment. If so, the payee’s payment service provider is liable to the payee for the correct execution of the transaction.
(2) Where a payment service provider is liable to a payer under paragraph (1), it shall without undue delay refund to the payer the amount of the non-executed or defective payment transaction and, where applicable, restore the debited payment account to the state in which it would have been had the defective payment transaction not taken place.
(3) Where a payment service provider is liable to a payee under paragraph (1), it shall immediately place the amount of the payment transaction at the payee’s disposal and, where applicable, credit the corresponding amount to the payee’s payment account.
(4) In the case of a non-executed or defectively executed payment transaction where the payment order was initiated by the payer, the payer’s payment service provider—
(a) regardless of liability under paragraphs (1) to (3), shall on request immediately try to trace the payment transaction, and
(b) shall notify the payer of the outcome.
(5) Where a payment order is initiated by or through the payee concerned, the payee’s payment service provider is liable to the payee for correct transmission of the payment order to the payer’s payment service provider in accordance with Regulation 85(6). Where a payee’s payment service provider is liable under this paragraph, it shall immediately re-transmit the payment order in question to the payer’s payment service provider.
(6) A payee’s payment service provider is liable to the payee for handling a payment transaction in accordance with Regulation 88. Where a payee’s payment service provider is liable under this paragraph, it shall ensure that the amount of the payment transaction is at the payee’s disposal immediately after that amount is credited to the payee’s payment service provider’s account.
(7) In the case of a non-executed or defectively executed payment transaction for which the payee’s payment service provider is not liable under paragraphs (5) and (6), the payer’s payment service provider is liable to the payer. Where a payer’s payment service provider is so liable it shall, as appropriate and without undue delay, refund to the payer concerned the amount of the non-executed or defective payment transaction and restore the debited payment account to the state in which it would have been had the defective payment transaction not taken place.
(8) In the case of a non-executed or defectively executed payment transaction where the payment order is initiated by or through the payee concerned, the payee’s payment service provider shall, regardless of liability under paragraphs (5) to (7), on request, try immediately to trace the payment transaction and notify the payee of the outcome.
(9) A payment service provider is liable to its payment service users for any charges for which those users are responsible, and for any interest to which those users are subject, as a consequence of non-execution or defective execution of a payment transaction.
(10) Nothing in this Regulation affects the operation of any of Regulations 72, 89(1), 89(4) or 92.
Right of recourse.
91. Where the liability of a payment service provider under Regulation 90 is attributable to another payment service provider or to an intermediary, that payment service provider or intermediary shall compensate the first payment service provider for any losses incurred or sums paid in accordance with that Regulation.
No liability in certain circumstances.
92. A payment service provider is not liable under this Chapter in abnormal and unforeseeable circumstances beyond its control, the consequences of which would have been unavoidable despite all efforts to the contrary, or that arise from other legal obligations.
Other compensation not prevented.
93. Nothing in Regulations 89 to 92 affects a person’s right to compensation in accordance with the law applicable to the relevant contract.
Chapter 4 Data Protection
Processing of personal data.
94. The processing, within the meaning of the Data Protection Acts 1988 and 2003, of personal data by a payment system or payment service provider is permitted for the purposes of the prevention, investigation and detection of payment fraud.
Part 6 Powers and Duties of the Bank
Chapter 1 Supervisory Powers and Duties
Bank as competent authority.
95. The powers of the Bank extend to cover infringement or suspected infringement of Parts 4 and 5 by payment service providers authorised in the State and agents and branches in the State of payment service providers authorised in another Member State.
Supervision.
96. (1) The Bank—
(a) may require a payment service provider to provide any information needed to monitor the institution’s compliance with these Regulations,
(b) may carry out on-site inspections at—
(i) the premises of a payment service provider,
(ii) any agent or branch providing payment services under the responsibility of a payment service provider,
(iii) the premises of any entity to which a payment service provider’s activities are outsourced, and
(iv) any premises at which payment services are, or are suspected of being, conducted,
and
(c) may issue recommendations and guidelines.
(2) The Bank may take steps to ensure that a payment institution maintains sufficient capital for payment services, in particular where the non-payment services activities of a payment institution impair or are likely to impair the financial soundness of the payment institution.
Bank’s power to give directions.
97. (1) If the Bank considers it necessary to do so in the interests of the proper and orderly supervision of payment services the Bank may give a direction in writing to—
(a) a payment institution,
(b) another person registered to provide payment services in the State, or
(c) any other person involved in or connected with the provision of a payment service in the State.
(2) A direction under paragraph (1)—
(a) takes effect on the date, or on the occurrence of the event, specified in the direction for the purpose, and
(b) ceases to have effect on the earlier of—
(i) the date, or the occurrence of the event, specified in the direction for the purpose, or
(ii) the expiration of the period of 12 months immediately following the day on which it took effect.
(3) If a direction under this Regulation has not been complied with or is unlikely to be complied with, the Bank may apply to the court in a summary manner for such order as the court thinks appropriate by way of enforcement of the direction.
Exchange of information.
98. (1) The Bank shall cooperate with the competent authorities of other Member States and with the European Central Bank and the central banks of other Member States and other relevant competent authorities designated under the laws of other Member States applicable to payment service providers.
(2) The Bank may exchange information with—
(a) the competent authorities of other Member States responsible for the authorisation and supervision of payment institutions,
(b) the European Central Bank and the central banks of other Member States, in their capacity as monetary and oversight authorities, and, where appropriate, other public authorities responsible for overseeing payment and settlement systems, and
(c) relevant authorities of other Member States designated under laws giving effect to the Payment Services Directive and other Acts of the European Communities applicable to payment service providers (for example, Acts applicable to the protection of individuals with regard to the processing of personal data and to money laundering andterrorist financing).
Chapter 2 Powers of Authorised Officers
Interpretation (Chapter 2).
99. In this Chapter “relevant records” means books, records or other documents related to the business of a payment services provider.
Power to appoint authorised officers.
100. (1) The Bank may, in writing—
(a) authorise a person as an authorised officer, and
(b) revoke such an authorisation.
(2) The appointment of an authorised officer may be for a specified period or indefinite.
(3) The Bank shall furnish an authorised officer with a certificate of his or her appointment as an authorised officer.
(4) The appointment of a person as an authorised officer ceases—
(a) if the Bank revokes the appointment, at the time of revocation,
(b) if the person dies, at the time of his or her death,
(c) if the appointment is for a specified period, at the end of that period, or
(d) if the person is, when appointed, an officer of the Bank, and the person ceases to be such an officer, when he or she so ceases.
Powers of authorised officers.
101. (1) An authorised officer may, for the purpose of carrying out an investigation under this Part, do all or any of the following at any reasonable time during normal business hours—
(a) enter any premises (other than a private dwelling) at which the officer has reasonable grounds to believe that the business of a payment services provider is, or has been, carried on, or on which there are relevant records;
(b) search and inspect such premises and any relevant records on the premises,
(c) secure for later inspection such premises or any part of such premises in which relevant records are kept or in which the officer has reasonable grounds for believing relevant records are kept,
(d) require a person who carries on the business of a payment services provider and any person employed in connection with such a business to produce to the officer relevant records, and if any such record is in a non-legible form, to reproduce it in a legible form or to give the officer such information as the officer reasonably requires in relation to entries in the relevant records,
(e) inspect and take copies of relevant records inspected or produced to the officer (including, in the case of information in a non-legible form, a copy of all or part of the information in a permanent legible form),
(f) remove and retain any of the relevant records inspected or produced under these Regulations for such period as may be reasonable to allow their further examination,
(g) require a person to give to the officer information (including information by way of a written report) that the officer reasonably requires in relation to activities covered by this Chapter and to produce to the officer any relevant records that the person has or has access to,
(h) require a person by whom or on whose behalf data equipment is or has been used, or any person who has charge of, or is otherwise concerned with the operation of, the data equipment or any associated apparatus or material, to give the officer all reasonable assistance in relation the operation of that equipment, and
(i) require a person to explain entries in any relevant records.
(2) When exercising a power of an authorised officer, an authorised officer shall produce the certificate, together with some form of personal identification, if requested to do so by a person affected by the exercise of that power.
(3) An authorised officer shall not enter a private dwelling (other than a part of the dwelling used as a place of work) except with the consent of the occupier.
(4) If a person from whom production of a relevant record is required claims a lien over it, the production of it does not affect the lien.
(5) An obligation to produce a relevant record or report or to provide information or assistance under this Regulation applies to—
(a) a liquidator or receiver of, or a person who is or has been an officer or employee or agent of, a payment service provider, or
(b) any other person who appears to the Bank or the authorised officer to have a relevant record or report in his or her possession or under his or her control or the ability to provide information or assistance, as the case may be.
(6) An authorised officer may, if the officer considers it necessary, be accompanied by a member of the Gárda Síochána when exercising a power under this Chapter.
Warrants.
102. (1) If an authorised officer, while in the exercise of the authorised officer’s powers under Regulation 101—
(a) is prevented from entering any premises, or
(b) believes that there are relevant records in a private dwelling,
he or she may apply to a judge of the District Court for a warrant authorising the entry by the authorised officer into the premises or the dwelling.
(2) If on an application under paragraph (1) a judge of the District Court is satisfied, on the information of the applicant authorised officer, that the applicant authorised officer—
(a) has been prevented from entering the premises concerned, or
(b) has reasonable grounds for believing that there are relevant records in the private dwelling concerned,
the judge may issue a warrant under his or her hand authorising the applicant authorised officer, accompanied, if the judge considers it appropriate, by a specified number of members of the Gárda Síochána, to enter, if need be by force, at any time within 4 weeks from the date of issue of the warrant, the premises or private dwelling and there exercise the powers set out in Regulation 101.
Chapter 3 Out-of-Court Complaint and Redress Procedures
Out-of-court redress.
103. (1) The Financial Services Ombudsman has jurisdiction over the settlement of disputes between payment service users (being payment service users that are consumers or the operators of undertakings that were at the relevant time micro enterprises) and payment service providers concerning rights and obligations arising under these Regulations.
(2) In the case of a cross-border dispute, the Financial Services Ombudsman shall cooperate actively with equivalent bodies in other EEA Member States in resolving them.
Chapter 4 Appeals
Appealable decisions.
104. The following decisions of the Bank are appealable decisions for the purposes of Part VIIA of the Central Bank Act 1942 (No. 22 of 1942):
(a) a decision under Regulation 18—
(i) refusing to grant an authorisation to operate as a payment institution, or
(ii) granting such an authorisation subject to conditions or requirements;
(b) a decision under Regulation 34 to withdraw such an authorisation;
(c) a decision under Regulation 35(4) to require a person registered as a small payment institution in accordance with Regulation 35(2) to engage only in a specified activity;
(d) a decision under Regulation 37 to withdraw a waiver granted under Regulation 35(2);
(e) a decision under Regulation 97 to give a direction to a person;
(f) a decision under Regulation 115(3) to revoke an authorisation granted under Regulation 115(2).
Part 7 Offences
Offence — operation as a payment institution without authorisation, etc.
105. A person who contravenes any of paragraphs (1) to (6) of Regulation 8 commits an offence.
Offence — false or misleading information in application.
106. (1) A person commits an offence if the person—
(a) knowingly or recklessly makes a false or misleading statement in an application for authorisation to operate as a payment institution, or
(b) makes a false or misleading statement to the Bank in relation to—
(i) the obtaining of an authorisation to operate as a payment institution, or
(ii) an approval, waiver or permission from the Bank concerning the operation of a payment institution.
Offence — misappropriation of users’ funds.
107. A person who is a director, officer or employee of a payment institution commits an offence if he or she fraudulently misappropriates users’ funds.
Offence — failure to inform Bank of relevant changes, etc.
108. A payment institution that fails to comply with Regulation 25 commits an offence.
Offence — failure to keep appropriate records.
109. A payment institution that fails to comply with Regulation 32 (whether by not keeping appropriate records or by not holding such records for the period required by that Regulation) commits an offence.
Offences — obstruction of authorised officer, etc.
110. (1) A person who obstructs or interferes with an authorised officer in the exercise of the authorised officer’s powers under these Regulations commits an offence.
(2) A person who without reasonable excuse refuses or fails to comply with a request or requirement of an authorised officer made in accordance with these Regulations commits an offence.
(3) A person who gives an authorised officer information that the person knows or reasonably ought to know is false or misleading in a material particular commits an offence.
Offence — provision of false or misleading information under Regulation 96(1)(a).
111. A payment institution commits an offence if the payment institution gives the Bank, in purported compliance with a requirement of the Bank under Regulation 96(1)(a), information that the payment institution knows or reasonably ought to know is false or misleading.
Penalties.
112. A person who commits an offence under these Regulations is liable—
(a) on summary conviction, to a fine of up to €5,000 or imprisonment for up to 6 months, or both, or
(b) on conviction on indictment, to a fine of up to €500,000 or imprisonment for up to 3 years, or both.
Prosecution of offences.
113. (1) Summary proceedings for an offence under these Regulations may be brought and prosecuted by the Bank.
(2) Summary proceedings for an offence under these Regulations may be instituted within 12 months after the date of the offence.
Offences — directors and others of bodies corporate and unincorporated bodies.
114. Where an offence under these Regulations is committed by a body corporate or by a person purporting to act on behalf of a body corporate or on behalf of an unincorporated body of persons, and is proved to have been committed with the consent or connivance, or to be attributable to any wilful neglect, of a person who, when the offence is committed, is—
(a) a director, manager, secretary or other officer of the body, or a person purporting to act in that capacity, or
(b) a member of the committee of management or other controlling authority of the body, or a person purporting to act in that capacity,
that person is taken to have also committed the offence and may be proceeded against and punished accordingly.
Part 8 Transitional
Payment service providers active before 25 December 2007.
115. (1) A person (not being an individual nor a person to which regulation 116 or 117 applies) that commenced before 25 December 2007, in accordance with the law of the State as then in force, to carry on the activities of a payment institution in the State may continue to provide that service until 30 April 2011.
(2) If a person referred to in paragraph (1) satisfies the Bank that the person complies with the requirements in Regulations 10 and 19, the Bank shall grant authorisation to the person and shall register the person. The Bank shall notify the person before granting the authorisation.
(3) The Bank may revoke an authorisation granted under paragraph (2) as if the authorisation had been granted under Chapter 2 of Part 2.
Payment service providers active before 25 December 2007 included inconsolidated supervision of another undertaking.
116. (1) A financial institution that is included in the consolidated supervision of a parent undertaking and commenced the provision of a payment service before 25 December 2007 may continue to provide that payment service if—
(a) it notifies the Bank before 25 December 2009 that it intends to continue providing that payment service, and
(b) it includes with the notification the information required by subparagraphs (a), (d), (g) to (i), (k) and (l) of Regulation 10(1).
(2) Where the Bank is satisfied that those requirements are complied with, the Bank shall register the financial institution concerned. The Bank may exempt the financial institution from the requirement to comply with Regulation 10.
Certain small payment service providers active before commencement of these Regulations.
117. (1) A person who—
(a) in accordance with the law in force in the State before 25 December 2007, commenced before the commencement of these Regulations to carry on the activities of a payment institution in the State, and
(b) qualifies as a small payment institution under Regulation 35(1),
may continue to provide payment services within the State until 25 December 2010.
(2) The Bank may direct that a person referred to in paragraph (1) may engage only in a specific payment service or a specific activity referred to in subparagraph (a), (b) or (c) of Regulation 27(1).
(3) If a person referred to in paragraph (1) notifies the Bank that the person intends to continue to provide a payment service, and satisfies the bank that it qualifies as a small payment institution, the Bank shall register the person as a small payment institution.
Part 9 Amendment and Revocation of Other Legislation
Amendments of Central Bank Act 1942.
118. (1) The Central Bank Act 1942 (No. 22 of 1942) is amended as set out in Part 1 of Schedule 2.
Amendment of the European Communities (Licensing and Supervision of Credit Institutions) Regulations 1992.
119. The European Communities (Licensing and Supervision of Credit Institutions) Regulations 1992 (S.I. No. 395 of 1992) are amended as set out in Part 2 of Schedule 2.
Revocation of European Communities (Cross-Border Credit Transfers)Regulations 1999.
120. The European Communities (Cross-Border Credit Transfers) Regulations 1999 (S.I. No. 231 of 1999) are revoked.
Amendment of European Communities (Protection of Consumers in Respect of Contracts Made by Means of Distance Communication) Regulations 2001.
121. Regulation 10 of the European Communities (Protection of Consumers in Respect of Contracts Made by Means of Distance Communication) Regulations 2001 (S.I. No. 207 of 2001) is revoked.
Amendments of European Communities (Distance Marketing of ConsumerFinancial Services) Regulations 2004.
122. Regulation 29 (as amended by the European Communities (Distance Marketing of Consumer Financial Services) (Amendment) Regulations 2005 (S.I. No. 63 of 2005)) of the European Communities (Distance Marketing of Consumer Financial Services) Regulations 2004 (S.I. No. 853 of 2004) is revoked.
SCHEDULE 1 Payment Services
1. Services enabling cash to be placed on a payment account as well as all the operations required for operating a payment account.
2. Services enabling cash withdrawals from a payment account as well as all the operations required for operating a payment account.
3. Execution of payment transactions, including transfers of funds on a payment account with the user’s payment service provider or with another payment service provider:
(a) execution of direct debits, including one-off direct debits,
(b) execution of payment transactions through a payment card or a similar device,
(c) execution of credit transfers, including standing orders.
4. Execution of payment transactions where the funds are covered by a credit line for a payment service user:
(a) execution of direct debits, including one-off direct debits,
(b) execution of payment transactions through a payment card or a similar device,
(c) execution of credit transfers, including standing orders.
5. Issuing and/or acquiring of payment transactions.
6. Money remittance.
7. Execution of payment transactions where the consent of the payer to execute a payment transaction is given by means of any telecommunication, digital or IT device and the payment is made to the telecommunication, IT system or network operator, acting only as an intermediary between the payment service user and the supplier of the goods and services.
SCHEDULE 2 Amendment of other Legislation
Part 1 Amendments of Central Bank Act 1942
Regulation 118
Item
Provision amended
Amendment
1
Section 33AK(10), paragraphs (n) and (o)
Substitute:“(n)Directive 2004/39/EC of the European Parliament and of the Council of 21 April 2004 on markets in financial instruments,(o)the Supplemental Directive and the MiFID Regulation as defined in section 3(1) of the Markets in Financial Instruments and Miscellaneous Provisions Act 2007 (No. 37 of 2007), and(p)Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC.”.
2
After section 33AN, insert:“Application of Part to credit unions pursuant to Payment Services Directive.33ANB.—(1) This Part applies in relation to—(a)the commission or suspected commission by a credit union of a contravention of—(i)a provision of the European Communities (Payment Services) Regulations 2009 (S.I. No. 383 of 2009),(ii)any direction given to the credit union under a provision of those Regulations,(iii)any condition or requirement imposed on the credit union under a provision of those Regulations or under any direction given to the credit union under such a provision, or(iv)any obligation imposed on the credit union by those Regulations or by the Regulatory Authority pursuant to a power exercised under those Regulations, and(b)participation, by a person concerned in the management of a credit union, in the commission by the credit union of such a contravention.(2) For those purposes—(a)a reference in this Part to a

regulated financial service provider includes a reference to a credit union,(b)a reference in this Part to a prescribed contravention includes a reference to a contravention, by a credit union, of a provision, direction, condition, requirement or obligation referred to in subsection (1), and(c)a reference in this Part to a person concerned in the management of a regulated financial service provider includes a reference to a person concerned in the management of a credit union.(3) Nothing in this section limits the application of this Part in relation to matters other than those referred to in subsection (1).(4) However, for the purposes of the application of subsections (3)(c) and (5)(b) of section 33AQ in relation to a contravention by a credit union of a provision, direction, condition, requirement or obligation referred to in subsection (1)—(a)the prescribed amount shall be taken to be €500,000 in all circumstances, and(b)any prescription

of a higher amount by regulations for the purposes of either of those subsections shall be disregarded.(5) This section has effect notwithstanding anything to the contrary in section 184 of the Credit Union Act 1997.”.
3
Schedule 2 Part 2
At the end, insert—
“S.I. No. 383 of 2009
European Communities (Payment Services) Regulations 2009
The whole instrument (other than Part 3)”.
Part 2 Amendments of European Communities (Licensing and Supervision of Credit Institutions) Regulations 1992
Regulation 119
Item
Provision amended
Amendment
1
Schedule, points 4 and 5
Substitute:“(4) Payment services (as defined in Article 4(3) of Directive 2007/64/EC6 of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market)(5) Issuing and administering other means of payment (for example, travellers’ cheques and bankers’ drafts) insofar as this activity is not covered by point 4”.
6 OJ L 319, 5.12.2007, p. 1.
GIVEN under my Official Seal,
25 September 2009.
BRIAN LENIHAN,
Minister for Finance.
EXPLANATORY NOTE
(This note is not part of the Instrument and does not purport to be a legal interpretation)
This Statutory Instrument transposes Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market amending Directive 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC.
The Directive establishes a harmonised legal framework for the provision of payment services in the European Union / European Economic Area. The Directive:
•establishes who may provide payments services;
•introduces an authorisation and supervision framework for a new category of payment services provider called a payment institution;
•establishes transparency and information requirements to ensure that payment service providers give requisite information to payment service users; and
•sets out the respective rights and obligations of payment service providers and payment service users.
The Statutory Instrument designates the Financial Regulator as the competent authority for the purposes of the Payment Services Directive. However, for Part 3 of the Statutory Instrument, which concerns access to payment systems, the Central Bank shall be the competent authority.
1 Official Journal L 319, 05/12/2007 p. 1–36.

2 OJ. L 1, 3 January 1994, p. 3.

3 OJ. L 1, 3 January 1994, p. 572.

4 OJ L 124, 20 May 2003, p. 36–41.

5 OJ L 164, 22.6.2002, p. 3–7

6 OJ L 319, 5.12.2007, p. 1.

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