Key Benefits:
Interested audiences: credit institutions, electronic currency institutions, customers of such persons or persons using the services of such institutions.
Purpose: Emission and management of electronic currency and provision of payment services by electronic currency institutions.
Entry into force: the text comes into force on the day after its publication.
Notice: This Order establishes the prudential regime of electronic currency institutions and transposes into domestic law the Directive 2009/110/EC of the European Parliament and the Council of 16 September 2009 on access to the activity of electronic currency institutions and its exercise and the prudential supervision of these institutions.
References: the provisions of this Order may be consulted on the Legifrance website ( http://www.legifrance.gouv.fr).
Minister of Economy and Finance,
Having regard to Directive 2006/48/EC of the European Parliament and the Council of 14 June 2006 on access to the activity of credit institutions and its exercise;
Having regard to Directive 2007/64/EC of the European Parliament and the Council of 13 November 2007 on domestic payment services, amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC;
Having regard to Directive 2009/110/EC of the European Parliament and of the Council of 16 September 2009 on access to the activity of electronic currency institutions and its exercise and the prudential supervision of those institutions, amending Directives 2005/60/EC and 2006/48/EC and repealing Directive 2000/46/EC;
Vu le Trade code ;
Vu le monetary and financial code ;
Vu la Act No. 2013-100 of 28 January 2013 bringing various provisions to adapt legislation to European Union economic and financial law;
Having regard to the decision of 20 February 2007 on the requirements of equity applicable to credit institutions and investment companies;
In view of the decision of 2 July 2007 on the cantonment of customer funds of investment companies;
Considering the Order of 29 October 2009 on prudential regulation of payment establishments;
Considering the decision of 26 October 2010 on the national file of credit repayment incidents to individuals;
Having regard to the amended Regulation No. 90-02 of the Banking Regulation Committee of 23 February 1990 on its own funds;
Having regard to Regulation No. 91-05 of the Banking Regulation Committee of 15 February 1991 amended on the solvency ratio;
Having regard to the regulation of the amended banking regulation committee of 23 December 1992 relating to the minimum capital of credit institutions;
Having regard to Regulation No. 96-13 of the amended Banking and Financial Regulation Committee of 20 December 1996 relating to the withdrawal of approval and the cancellation of credit institutions;
In light of the amended Regulation No. 96-16 of the Banking and Financial Regulation Committee of 20 December 1996 relating to changes in the status of credit institutions and investment companies other than portfolio management companies;
Having regard to Regulation No. 97-02 of the amended Banking and Financial Regulation Committee of 21 February 1997 on the internal control of credit institutions and investment companies;
In view of the amended Regulation No. 2000-03 of the Banking and Financial Regulatory Committee of 6 September 2000 on Consolidated Supervision and Supplementary Monitoring;
Having regard to the amended Regulation No. 2001-04 of the Banking and Financial Regulation Committee of 29 October 2001 on the compensation of cheques;
Having regard to the amended Regulation No. 2002-01 of the Banking and Financial Regulation Committee of 18 April 2002 relating to cheque vigilance obligations for the purpose of combating money-laundering and the financing of terrorism;
Based on the advice of the Financial Legislation and Regulatory Advisory Committee dated February 25, 2013,
Stop it!
Electronic currency institutions mentioned in theArticle L. 526-1 of the Monetary and Financial Code, below referred to as "subscribed establishments", are required to comply with the provisions of this Order.
Accreditation as an electronic currency establishment is subject to the submission to the prudential control authority of a request that must be made in accordance with the record prepared by the prudential control authority and published in its official registry.
Upon receipt of an application, the Supervisory Authority shall verify that it is in accordance with the record set out in section 2 and, if so, proceed to its instruction.
The Supervisory Authority may request the applicant any additional information necessary for the investigation of the case. This request suspends the deadlines set out in the following paragraph until the requested information is received.
The Supervisory Authority shall notify the applicant of its decision within a period of not more than three months from the date of receipt of the compliant record.
The minimum capital of a subject establishment is 350,000 euros.
For the purposes of the preceding section, the social capital of the subject establishments constituted in the form of a commercial corporation, the reserves whose distribution is prohibited and the sums that may be assimilated.
The modifications to the situation of the subject establishments that relate to the following are subject to prior authorization from the prudential control authority:
the legal form;
― the identity of the partner(s) indefinitely responsible for the debts of the subject establishment;
- measures taken to protect funds collected in exchange for the issuance of electronic currency, including changes in account or guarantor content;
the conditions to which the approval was subordinated.
Except for operations carried out within a group within the meaning ofArticle L. 233-3 of the Commercial Codeany transaction of taking, extension or transfer of participation, directly or indirectly within the meaning of section L. 233-4 of the same code, in a subject establishment is subject to prior authorization from the prudential control authority where it allows a person or group of persons acting in concert within the meaning of the provisions of section L. 233-10 of the same code:
- either to cross, up or down, the thresholds of 10%, 20%, 30% or 50% of the capital or voting rights;
either to acquire or lose, alone or jointly, the effective control over the management of the enterprise.
For the purposes of this section, voting rights are determined in accordance with section 4 of Regulation No. 96-16 of the above-mentioned Banking and Financial Regulatory Committee of 20 December 1996.
When an operation carried out between persons under foreign law transfers the effective control power of a corporation located outside France, whereas it holds directly or indirectly 10%, 20%, 30% or 50% of the capital or voting rights or the effective control power referred to in section 7 on a subject institution, the latter is required to notify the prudential control authority within one month.
The Authority shall review the status of the establishment subject to the consideration of the elements taken into account at the time of the registration, in particular in application of Articles L. 526-7 to L. 526-10 of the monetary and financial code.
The designation of any new person to perform the functions referred to in the 4th of section L. 526-9 orArticle L. 526-10 of the Monetary and Financial Code a subject establishment is notified within five days of the prudential control authority. The Authority may object to this appointment in accordance with the criteria of the 4th of Article L. 526-9 or of theArticle L. 526-10 of the Monetary and Financial Code. The Authority may decide to hear or make the person concerned heard.
Subject institutions shall promptly notify the Autorité de contrôle prudentiel of the administrative, disciplinary, civil or penal sanctions imposed, or the disciplinary or judicial proceedings in progress, against them as well as those against one of the persons referred to in the 4th of Article L. 526-9 or to the article L. 526-10 referred to above, of which they are aware, and which are likely to challenge the assessment carried out by the Authority This notification is accompanied by all the elements to assess the importance of the facts.
Where the Authority is aware of the facts that are likely to challenge the conditions of honorability and competence as well as adequate experience for the exercise of the functions referred to in the 4th of Article L. 526-9 or theArticle L. 526-10 of the Monetary and Financial Code, it may request the establishment of the consequences it intends to draw from these facts with respect to the person performing these functions. The latter is invited to make its observations known to the Authority. In the light of the information and observations provided in the above-mentioned procedures, the Authority may decide either to initiate a procedure for the withdrawal of approval from the subject institution or to exercise its administrative or disciplinary powers.
Termination of functions referred to in 4th of Article L. 526-9 orArticle L. 526-10 of the Monetary and Financial Code is declared within five working days to the prudential control authority.
The amendments made shall be declared within one month to the prudential control authority:
- the transactions mentioned in the 2°, excluding the granting of credits, and 3° of Article L. 526-2 of the Monetary and Financial Code for which the subject establishment has been approved;
- description of the distribution network;
- the name of the name;
- the name or trade name;
at the address of the head office;
- the capital of fixed capital corporations;
- the rules for calculating voting rights;
- the composition of the boards of directors or supervisory boards and directors of the subject establishments;
― the terms and conditions of general management, in accordance with provisions of Article L. 225-51-1 of the Commercial Code ;
- the organization of the executive and supervisory powers, entrusted to a directorate and supervisory board, in accordance with the provisions of section L. 225-57 of the same code.
Requests for authorization, notifications and declarations under this chapter include all the elements of appreciation to inform the Autorité de contrôle prudentiel on the causes, objectives and implications of the amendment concerned.
If required, additional elements may be requested. In this case, the deadlines set out in this section are suspended until such items are received.
The silence kept by the Autorité de contrôle prudentiel on a request in accordance with the requirements of this article beyond the time limits set by this section shall be granted the authorization requested or agreement on the amendment notified.
The Prudential Supervisory Authority shall take action within two months of the receipt of the application for authorization and notification under this chapter or, if the request or notification is incomplete, within the same period of time after the receipt of all necessary information for the purposes of the decision.
The subject establishment that has obtained an authorization to change its situation, pursuant to section 7, shall address the Authority of prudential control, within eight days of the completion of this amendment, a letter by which one of the persons referred to in section L. 526-9 or the person referred to in section L. 526-9 orArticle L. 526-10 of the Monetary and Financial Code the date of the transaction and attests to its compliance with the authorization issued.
Any subordinate institution having its head office in the territory of Metropolitan France, in overseas departments or in Saint-Martin, wishing to establish a branch, to use a person for the distribution of electronic currency, or to intervene in the free provision of services for the first time in another Member State of the European Union or another State Party to the agreement on the European Economic Area to issue and manage electronic currency, according to provisions of articles L. 526-22 to L. 526-24 of the monetary and financial codecommunicates to the Authority the information referred to in Articles 17 to 20.
When an establishment referred to in section 16 wishes to establish a branch, the institution shall communicate to the prudential control authority the following information:
1° Its name and address of its head office;
2° The State in which it intends to intervene;
3° The type of activities the establishment intends to provide on the territory concerned;
4° The address of this branch;
5° Identity of persons responsible for the management of the branch;
6° The organizational structure of the branch;
7° A description of the internal control system, including a description of the anti-money-laundering and counter-financing mechanism applicable to the branch.
When an establishment referred to in Article 16 mandates persons to distribute, within the meaning ofArticle L. 525-8 of the Monetary and Financial Code, from electronic currency, it communicates to the prudential control authority the following information:
1° Its name and address of its head office;
2° The State in which it intends to intervene;
3° The type of activities the establishment intends to provide on the territory concerned;
4° The name, name, name and date of birth of natural persons;
5° The social name and, if applicable, the SIREN number of legal persons;
6° The professional address for natural persons or, for legal persons, the address of the head office and, if different, the address where the activity is exercised on behalf of the electronic currency issuer;
7° A description of the internal control system implemented to ensure, inter alia, that distributors comply with obligations to combat money-laundering and counter-terrorism financing.
When an establishment referred to in Article 16 intervenes in the free provision of services, it shall provide the following information to the Supervisory Authority:
1° Its name and address of its head office;
2° The State in which it intends to intervene;
3° The type of activity the establishment intends to provide on the territory concerned.
This information is accompanied by their certified translations in accordance with the official language of the host State.
Within the month following the receipt of all the information mentioned in articles 17 to 19, the Autorité de contrôle prudentiel shall transmit the information to the competent authority of the host State, notify the establishment concerned and register the branch or register the declaration of free service on the list mentioned in the listArticle L. 612-21 of the Monetary and Financial Code.
The establishment may then operate on a free service basis.
As part of the declarations of free establishment, the institution is informed that it can begin its activities as soon as the competent authority of the host State acknowledges receipt of the information referred to in Articles 17 and 18.
Any change in the information referred to in sections 17 to 19 shall be communicated without delay by the establishment subject to the Autorité de contrôle prudentiel by specifying the date of completion. The prudential control authority shall inform the competent host authority and amend, if necessary, the list referred to in Article L. 612-21 of the above-mentioned code.
In order for an electronic currency institution to have its head office in another Member State of the European Union or another State Party to the Agreement on the European Economic Area to establish a branch, to use a person for the distribution of electronic currency, or to intervene in the free provision of services in order to issue and manage electronic currency in the territory of Metropolitan France, in overseas departments or in Saint-Martin, Articles L. 526-25 and L. 526-26 of the Monetary and Financial Code, the Autorité de contrôle prudentiel must have previously received from the competent authority of the State of origin the information mentioned in articles 23 to 26 accompanied by their certified translations in French.
When an establishment referred to in Article 22 wishes to establish a branch, the competent authority of the country of origin shall communicate to the Authority the following information:
1° The name and address of the head office or, where applicable, the central administration of the electronic currency establishment;
2° The type of activities the establishment intends to provide on the territory of Metropolitan France, overseas departments or Saint-Martin;
3° The address of the branch;
4° Identity of persons responsible for the management of the branch;
5° The organizational structure of the branch;
6° A description of the internal control system including a description of the anti-money laundering and the financing of terrorism.
When an establishment referred to in Article 22 mandates persons located in the territory of Metropolitan France, overseas departments or Saint-Martin to distribute, within the meaning ofArticle L. 525-8 of the Monetary and Financial Codefrom electronic currency, the competent authority of the country of origin shall communicate to the prudential control authority the following information:
1° The name and address of the head office or, where applicable, the central administration of the electronic currency establishment;
2° The type of activities the establishment intends to provide on the territory of Metropolitan France, overseas departments or Saint-Martin;
3° The name, name, name and date of birth of natural persons;
4° The social name of legal persons;
5° The professional address for natural persons or, for legal persons, the address of the head office and, if different, the address where the activity is exercised on behalf of the electronic currency issuer;
6° A description of the internal control system implemented to ensure, inter alia, that distributors comply with obligations to combat money-laundering and counter-terrorism financing.
When an establishment referred to in Article 22 intervenes in the free provision of services, the competent authority of the country of origin shall communicate to the Authority the following information:
1° Its name and address of its head office;
2° The type of activity the establishment intends to provide on the territory concerned.
The competent authority of origin and the institution concerned are notified of the receipt of this information by the prudential control authority as soon as possible.
Accreditation withdrawals issued by the Autorité de contrôle prudentiel in application of Articles L. 526-14 and L. 526-15 of the Monetary and Financial Code are published monthly, if any, with mention of their effective date in the official registry of the prudential control authority.
Radiation pronounced by the prudential control authority in application of theArticle L. 526-18 of the Monetary and Financial Code are published monthly in the official registry of the prudential control authority.
Institutions whose withdrawal or liquidation is in progress are listed in the annex to the list of electronic currency institutions established pursuant to theArticle L. 612-21 of the Monetary and Financial Code and published in the official registry of the prudential control authority.
The withdrawal of approval takes effect upon the expiry of a period fixed by the prudential control authority in accordance with theArticle L. 526-16 of the Monetary and Financial Code, the duration of which may not exceed fifteen months and in the course of which shall intervene, before a date fixed by the Authority, the return of the funds collected for the issuance and management of electronic currency.
When the Supervisory Authority has notified the commencement of a disciplinary procedure, it suspends consideration of the application for withdrawal of approval until the decision to close the proceedings it has initiated.
Any establishment whose withdrawal of licence has been pronounced shall forthwith notify of this decision, by means appropriate to the nature of its clientele, any person who holds in his or her books of funds collected for the issuance and management of electronic currency within the meaning ofArticle L. 526-5 of the Monetary and Financial Code, specifying the date before which the return of funds must take place under section 29.
The subject establishment shall make the decision for withdrawal of approval available on its website, specifying the date referred to in the preceding paragraph.
The subject establishment shall inform its customers of the transfer of funds collected for the issuance and management of electronic currency from a credit institution or other electronic currency establishment in the event of the resumption of the issuance and management of electronic currency by the subject establishment. This transfer is made free of charge to the electronic currency holder.
The funds still in the possession of the establishment subject to the date fixed by the Supervisory Authority, pursuant to section 29, are transferred to the Caisse des dépôts et consignations. The transfer of funds collected is made free of charge to the electronic currency holder.
Fund holders are notified of this transfer by the subject institution. In the event that it is not possible to notify all licensees, the subject institution will put the information online on its website.
Any establishment whose registration is being withdrawn may only carry out electronic currency management and payment services, which are strictly necessary for the performance of its situation.
By derogation from the provisions of the first paragraph, a legal person who has obtained an approval as a payment establishment in place of place of place of place of place of place of place of place of place of place of place of place of place of place of place of place of place of place of place of place of place of place of place of place of place of the corporation in the capacity of an electronic currency establishment may perform the payment services provided by its current approval and which are compatible with its new approval and the services to it, in accordance with the regulations applicable to the provision of such services.
For the purposes of this chapter, equity is determined in accordance with Regulation No. 90-02 of the Banking Regulation Committee of 23 February 1990 referred to above.
For application of theArticle L. 526-27 of the Monetary and Financial Code, the subject establishment calculates the amount of its own funds to be held under the issuance and management of electronic currency as defined in the D method below.
The amount of equity is, at any time, greater than or equal to 2% of the average of the electronic currency in circulation.
The average electronic currency in circulation is the average calculated on the first calendar day of the month and applied for the month concerned. This average is the average of the total amount of the electronic currency liabilities issued at the end of each calendar day for the preceding six months.
The average electronic currency in circulation within the meaning of this chapter is as follows:
(Total EFME(*) to 01/M(**)-6 + Total EFME to 02/M-6 +.... + Total EFME to 31/M-1)
(Total EFME(*) to 01/M(**)-6 + Total EFME to 02/M-6 +.... + Total EFME to 31/M-1)
(number of days between the 1st month M-6 and the last day of the month M-1)
Where the assessment of the risk management processes or the assessment of the databases on the risk of loss or the assessment of the internal control device of the subject establishment justifies it, the prudential control authority may, under the conditions provided for in theArticle L. 511-41-3 of the Monetary and Financial Code, decide that the subject establishment is subject to a requirement of equity that may be up to 20% higher than the amount that would result from the method applicable in accordance with section 35.
Under the same conditions and if the situation so warrants, the Supervisory Authority may authorize the subject establishment to be subject to a requirement of equity that may be up to 20% less than the amount that would result from the method applicable in accordance with section 35.
Subject institutions may choose one of the methods for the protection of funds under sections 38 and 39. They may also choose to combine these two methods according to previously defined criteria and communicated to the Autorité de contrôle prudentiel.
All funds collected in exchange for the issuance of electronic currency by the subject establishments are taken into account.
The subject establishments place the funds collected in exchange for the issuance of electronic currency in one or more accounts specially opened for this purpose, identified separately from any other account used to hold funds belonging to the subject establishment, from an approved credit institution in a Member State of the European Union or in a State Party to the Agreement on the European Economic Area.
Funds are placed on account. The title of these accounts refers to the allocation of the amounts deposited therein.
They may also be invested in financial instruments held in accounts that are specially opened for this purpose with a person mentioned in the accounts 2° to 5° of Article L. 542-1 of the monetary and financial code. These instruments may only be securities issued by one of the entities referred to in Article 3 of the above-mentioned Order of July 2, 2007.
The justification for this obligation must be provided at any time.
The coverage required to 2° of Article L. 526-32 of the monetary and financial code results:
a written undertaking of an authorized credit institution that does not belong to the same group as the subject establishment and conforms to one of the models annexed to this Order;
a written undertaking of an insurance company authorized to do so does not belong to the same group as the establishment subject and conforms to one of the models annexed to this Order.
The subject establishment justifies the prudential control authority of the creation of the coverage and its amount and its regular update according to the evolution of the electronic currency volume.
The prudential control authority may require a reassessment of the amount of the coverage if it appears insufficient to the amount of activity of the establishment of the previous year or envisaged for the following year.
The subsidiary electronic currency establishments of a credit institution, an investment company, a financial company or a joint holding financial company, included in the consolidation scope within the meaning of regulation No. 2000-03 of 6 September 2000 referred to above, are not subject to the individual or, where applicable, sub-consolidated compliance of the requirements in equity set out in section 35 of this Order, subject to such regulation as may be prescribed.
Emission and electronic currency management activities and operations mentioned in theArticle L. 526-2 of the Monetary and Financial Code by an establishment engaged in a hybrid activity shall be subject to prudential supervision in accordance with Chapters I, II and IV of this title. In accordance with Article L. 612-24, the documents and information necessary for the exercise of its control mission shall be delivered to the Authority under conditions fixed by an instruction.
The system of control of internal transactions and procedures defined in section 5 of Regulation No. 97-02 of the above-mentioned Banking and Financial Regulatory Committee of February 21, 1997 incorporates the audit of the obligations provided for in the above-mentioned Regulation.Article L. 526-3 of the Monetary and Financial Code and this chapter.
The internal control system of the subject establishments shall enable them to ensure that the provisions of this chapter are respected on an ongoing basis.
For application Articles L. 526-27 and L. 526-32 of the Monetary and Financial Code, as well as chapters I and II of this title, the institutions subject to activities of a hybrid nature assess the representative share of the funds collected as part of the issuance and management of electronic currency by reporting, on a quarterly basis, the volume of the funds collected in exchange for the effective issuance of electronic currency to that of the funds collected as part of the issuance and management of electronic currency and that may also be earmarked for They perform this calculation over the last four slippery quarters and hold the highest number.
When the subject establishment has not yet completed a full fiscal year as of the date of calculation, the first quarter of the year to come is the number of its activity program increased by 30%, then the first quarter figure increased by 20%, then the first two quarters by holding the highest, increased by 20%, and the first three quarters by holding the highest, increased by 10%.
The prudential control authority may adjust these requirements if the situation warrants it.
Electronic currency institutions that meet the two conditions set out in the following paragraph may, notwithstanding the provisions of section 4, have a minimum capital of 100,000 euros and are not subject to section 35 or to the provisions relating to internal control provided for in the regulation of the Banking and Financial Regulation Committee No. 97-02 of 21 February 1997 referred to above, with the exception of its provisions relating to the risk of money laundering and the financing of capital
The previous paragraph applies only to electronic currency institutions that meet the following two conditions:
―the average electronic currency in circulation does not exceed the amount mentioned in theArticle L. 526-19 of the Monetary and Financial Code ;
- none of the natural persons responsible for the management or exercise of the activity has been convicted of offences related to money laundering, the financing of terrorism or other financial offences.
Subject institutions that benefit from the provisions of section 44 are not authorized to provide payment services or related services to payment services under theArticle L. 526-2 of the Monetary and Financial Codeor to exercise their activity in the territory of another Member State of the European Union or another State Party to the Agreement on the European Economic Area pursuant to Articles L. 526-22 and following of the same Code.
Subject institutions that benefit from the provisions of section 44 shall periodically issue a declaration to the Autorité de contrôle prudentiel whose terms are fixed by an instruction of the Autorité.
The benefit of the derogatory status provided for in Article 44 automatically ceases one month after the Autorité de contrôle prudentiel found that the conditions provided for in the article are no longer met.
When a subject institution wishes to provide, without having previously declared, the payment services referred to in 1° of Article L. 526-2 of the Monetary and Financial Code or the related service of granting credits referred to in 2° of Article L. 526-2 of the same code, it shall inform the Autorité de contrôle prudentiel in the manner set by instruction.
Without prejudice to the legislative and regulatory provisions applicable to the provision of payment services, the subject establishment that provides payment services calculates the amount of the funds specific to the provision of the payment services to be held, according to one of the three methods set out in sections 29 to 31 of the above-mentioned Order of October 29, 2009.
The subject establishment that provides payment services shall at any time comply with the provisions of Chapter I of Title II of the above-mentioned Order dated October 29, 2009 relating to its own funds.
The subject establishment that provides payment services holds an amount of the equity, for the issuance and management of electronic currency and for the provision of payment services, that is at any time greater or equal to the amount of the amounts required under sections 35 and 48.
The provisions of Chapter IV of Title I, Articles 23 to 26 and Title II of the above-mentioned Order of 29 October 2009 apply to electronic currency institutions that provide payment services.
The above-mentioned decision of 29 October 2009 is amended:
1° In Article 7, after the words "of a group" are inserted the words "in the meaning of Article 233-3 of the Commercial Code";
2° In the last sentence of the second paragraph of section 10, the words: "to open a procedure for the withdrawal of approval of the subject establishment or to transmit the file to the prudential Supervisory Authority" are replaced by the words: "to open a procedure for the withdrawal of approval of the subject establishment, or to exercise its administrative or disciplinary police power";
3° In Article 16, the words: ", in Saint-Martin or in Saint-Barthélemy" are replaced by the words: " or in Saint-Martin";
4° Sections 17 and 22, the reference to Article L. 612-2 is replaced by the reference to Article L. 612-21;
5° Section 19 is amended as follows:
(a) In the first paragraph, the words ", in Saint-Martin or in Saint-Barthélemy" are replaced by the words "or in Saint-Martin";
(b) In the third paragraph, the words ", in Saint-Barthélemy" are deleted;
6° In Article 22, the words: "Official Journal" are replaced by the words: "Official Registry of the prudential Control Authority";
7° The a of section 31 is amended as follows:
(a) In the first paragraph, the words: "The applicable indicator is the sum of the following:" are replaced by the words: "The applicable indicator is equal to the sum of the following items observed, at the end of the previous year, on the last twelve months constituting this exercise:"
(b) In the sixth paragraph, the words: "The applicable indicator is calculated on the basis of the twelve-month observation at the end of the previous year. » are deleted;
(c) In the last paragraph, the words: "of the average of the previous three fiscal years for the applicable indicator" are replaced by the words: "of the amount that would have been calculated, by method C, by applying an average indicator calculated on the previous three fiscal years";
8° In section 32, the reference to section L. 613-16 is replaced by the reference to section L. 511-41-3;
9° Section 2 of chapter I of title II is supplemented by article 33 bis as follows:
"Art. 33 bis. - Subsidiary institutions may choose one of the methods for the protection of funds under sections 34 and 35. They may also choose to combine these two methods according to previously defined criteria and communicated to the Autorité de contrôle prudentiel.
"All funds collected for the provision of payment services by the subject establishments are taken into account. »
10° Section 35 is amended as follows:
(a) In the second and third paragraphs, the words "payment" are replaced by the words "subscribed and in accordance with one of the models annexed to this Order";
(b) In the fourth paragraph, the words: "Payment institutions justify" are replaced by the words: "The subject institution justifies" and the word: "annual" is replaced by the words: "regular according to the evolution of the volume of activity";
(c) The last paragraph is deleted;
11° In section 43, the reference to section L. 613-8 is replaced by the reference to section L. 612-24;
12° Appendix 1 is replaced by the following:
“Annex 1
"A stand-alone guarantee model in section 35
"The establishment ...... (1) registered in the register of trade and companies ...... under the number ...... represented by ...... duly authorized under ...... (2);
"After reminding him that he was brought to his knowledge that: ...... (3) below referred to as the "guaranteed establishment", asked the establishment referred to below as "the guarantor" to provide him with his autonomous warranty,
"Declares herewith, pursuant toArticle L. 522-17 of the Monetary and Financial Code and section 35 of the October 29, 2009 Order on the prudential regulation of payment establishments, constitute a guarantor within the meaning ofArticle 2321 of the Civil Code under the following terms and conditions.
“Article 1
« Subject of the guarantee
"This guarantee is a purely financial commitment. It is exclusive of any obligation to do and is consented to within the maximum amount referred to in section 2 to cover the funds received by the secured establishment as a payment institution, either by the users of payment services or by another payment service provider for the execution of payment transactions, in case the secured establishment is not in a position to meet its financial obligations.
"This guarantee does not cover compensation due by the secured establishment to third parties who may be adversely affected by a bad or non-performance of an obligation related to the activity of the third party.
“Article 2
“Amount
“1. Amount
"The maximum amount of the guarantee is (4).
“2. Actualization
"The maximum amount of the guarantee must be updated to comply with the conditions laid down in section 35 of the order as to the minimum amount of the guarantee.
“Article 3
« Duration
“1. Duration
"This warranty undertaking is effective from .... (5). It expires... (6), at 6 p.m.
“2. Renewal
"The warranty is renewed tacitly under the same conditions as the objects of the present, unless one of the parties makes the denunciation of the warranty at least .... (7) months before the due date.
“Article 4
“Enterment of the guarantee
"In the event that the secured establishment is unable to meet its financial obligations related to its payment services activities, this guarantee may be brought into play by the Minister responsible for the economy by registered letter with a request for a notice of receipt addressed to the guarantor to the above address.
“Article 5
"Attribution of jurisdiction
"This guarantee is subject to French law with jurisdiction of the French courts.
"Does at (8), on (9).
13° Appendix 2 is replaced by the following:
“Annex 2
" Bailing model in section 35
"The establishment or undertaking (1) registered in the business register and under the number duly authorized under (2);
"After reminding him that he was brought to his knowledge that: ...... (3) below referred to as the "guaranteed establishment" has asked the above-mentioned establishment or company referred to as the "guarante" to provide him with bail,
"Declares herewith, pursuant to 2° of Article L. 522-17 of the monetary and financial code and section 35 of the Order of October 29, 2009 on the prudential regulation of payment institutions, establish personal and solidarity bonds within the meaning of articles 2288 et seq. of the Civil Code, with the guaranteed establishment, in the terms and conditions below.
“Article 1
« Subject of bail
"This bond is a purely financial commitment. It is exclusive of any obligation to do and is consented to within the maximum amount referred to in section 2 to cover the funds received by the secured establishment as a payment institution, either by the users of payment services or by another payment service provider for the execution of payment transactions, in case the secured establishment is not in a position to meet its financial obligations.
"This deposit does not cover compensation due by the secured establishment to third parties who may be adversely affected by a wrong or non-performance of an obligation related to the activity of the third party.
“Article 2
“Amount
"The maximum amount of bail is (4).
“Article 3
« Duration
“1. Duration
"This guarantee commitment takes effect from ...... (5). It expires... (6), at 6 p.m.
“2. Renewal
"The bond is renewed tacitly under the same conditions as the objects of the present, unless one of the two parties makes the denunciation of the guarantee at least ...... (7) months before the due date.
“Article 4
“Breaking bail
"In the event of an impossibility for the secured establishment to be able to meet its financial obligations related to its payment services activities, this deposit may also be brought into play by the Minister responsible for the economy by registered letter with a request for a notice of receipt addressed to the deposit to the address above indicated.
“Article 5
"Attribution of jurisdiction
"This bail is subject to French law with competence of French courts.
"Does at (8), on (9).
« (1) Name, form, capital, head office of the credit or insurance company and possibly address of its branch.
"(2) Power or authorization with reference to its date.
"(3) The future payment institution (full designation).
« (4) Amount in figures and letters.
« (5) Date of bail.
« (6) Bail expiry date.
" (7) Notice period.
" (8) Place of issuance.
"(9) Date. »
Section 1 of Regulation No. 2001-04 of the Banking and Financial Regulation Committee of 29 October 2001 referred to above, after the words: "as well as to" are inserted the words: "electronic currency establishments and" and the words: "in Article L. 522-1" are replaced by the words: "only in Articles L. 526-1 and L. 522-1".
In section 1 of Regulation No. 2002-01 of the Banking and Financial Regulatory Committee of April 18, 2002, referred to above, after the words "as well as to" are inserted, the words "electronic currency institutions and" and the words "in section L. 522-1" are replaced by the words "only in sections L. 526-1 and L. 522-1".
Section 1 of Regulation No. 92-14 of the Banking Regulation Committee of 23 December 1992 referred to above is repealed.
Regulation No. 2000-03 of the above-mentioned Banking and Financial Regulation Committee of 6 September 2000 is amended as follows:
1° In i of the f of Article 1, after the words: "investment companies" are inserted the words: ", electronic currency institutions";
2° In the b of section 5, the words: "Articles L. 613-8 and L. 613-16" are replaced by the words: "Articles L. 511-41-3, L. 522-15-1, L. 526-10, L. 526-29, L. 612-24 and L. 612-31 to L. 612-33" and the reference to section L. 611-2 is replaced by the reference 61
Regulation No. 97-02 of the Banking and Financial Regulation Committee of 21 February 1997 referred to above is amended as follows:
1° In article 1, the words: " – payment institutions. are replaced by the words: “– Payment institutions; and, after the sixth preambular paragraph, a sub-item shall read:
“– electronic currency institutions. » ;
2° Section 4 is amended as follows:
(a) The a is replaced by the following:
“(a) Executive Body: persons who, in accordance with Article L. 511-13, Article L. 532-2, Article L. 532-2, Sub-paragraph (b) of Article L. 522-6 and 4° of Article L. 526-9 of the Monetary and Financial Code, ensure the effective determination of the direction of the business activity of the business, the person who, in the case of a payment establishment carrying on activities of a hybrid nature within the meaning of section L. 522-3 of the same code or electronic currency establishment carrying on activities of a hybrid nature within the meaning of section L. 526-3 of the same code, is declared responsible for the management of the activities of payment and issuance and currency services-2 4° and 5° of Article L. 542-1 of the monetary and financial code ; »
(b) In q, after the words: "of the above-mentioned monetary and financial code", the words are inserted: "by the use of persons to distribute electronic currency on behalf of the company subject to the meaning of articles L. 525-8 and following of the same code",
(c) At r:
― in the first draw, after the words: "the above-mentioned monetary and financial code," the words are inserted: "the issuance and management of electronic currency within the meaning of Article L. 315-1 of the same code",
– in the second dash, the words: "3 and 7" are replaced by the words: "3, 7 and 8" and, after the words: "Article L. 311-2," are inserted the words: "in Article L. 526-2,"
3° Article 11-7 is amended as follows:
(a) At 4:
The d and e become the e and f respectively;
It is inserted a d as follows:
"(d) Terms and conditions for client identity checks under theArticle L. 561-5 of the Monetary and Financial Code for transactions with electronic currency, defined inArticle L. 315-1 of the Monetary and Financial Codeand, where the derogation provided for in the 5th of section R. 561-16 of the same code is applicable, the steps to be taken to ensure that the conditions required to benefit from the derogation are met pursuant to Article R. 561-17 of the same code; »
In the last paragraph, after the words: "L. 523-1 I of the monetary and financial code", the words "or persons with a view to distributing, on their behalf, the electronic currency, under the conditions laid down to the Articles L. 525-8 et seq. of the Monetary and Financial Code," and, after the words: "as provided by the monetary and financial code", are inserted the words: "and the conditions under which these persons transmit any useful information to them in the fight against money laundering and the financing of terrorism";
(b) The 6 to 10 become the 7 to 11 respectively;
(c) 6 is thus written:
« 6. The procedures provide for information to be collected and retained for transactions with electronic currency defined in theArticle L. 315-1 of the Monetary and Financial Code.
“The information includes:
“(a) Information elements to ensure the traceability of the loads, cash and refunds of the electronic currency units, by the issuing establishment under the terms and conditions specified in theArticle L. 561-12 of the Monetary and Financial Code. The persons to whom an electronic currency issuer is used, to distribute electronic currency on his behalf within the meaning ofArticle L. 525-8 of the Monetary and Financial Codeprovide the necessary assistance to the issuing institution to ensure this traceability;
“(b) Anomalies found that relate to the circulation and repayment of the electronic currency to the issuing institution by the persons to whom it uses to distribute the electronic currency within the meaning of theArticle L. 525-8 of the Monetary and Financial Code.
4° Section 37-1 is amended as follows:
(a) The second paragraph is replaced by the following:
"Payment institutions and electronic currency institutions that intend to outsource operational functions for payment or electronic currency issuance and management services shall inform the Autorité de contrôle prudentiel in advance. » ;
(b) A third preambular paragraph should read:
"Subscribed companies that use agent services under the conditions of I of Article L. 523-1 of the Monetary and Financial Code, or persons for the purpose of distributing electronic currency on their behalf under the conditions of the Articles L. 525-8 et seq. of the Monetary and Financial Codeensure compliance with the provisions of sections 37-1-1 and 37-2, except for a and c of 3 and 4 of section 37-2 of these Regulations. » ;
5° In the second paragraph of Article 45, after the words: "investment companies", the words ", payment institutions and electronic currency institutions" are inserted;
6° Article 46 becomes Article 47;
7° Article 46 reads as follows:
“Art. 46. - With the exception of the provisions relating to the risk of money laundering and the financing of terrorism set out in sections 11-7, 38-1 and 42 and the provisions of section 37-2, except a and c of 3 and 4, these Regulations do not apply to electronic currency establishments with the exemption provided for in the exemption provided for inArticle L. 526-19 of the Monetary and Financial Code. »
Regulation No. 96-13 of the above-mentioned Committee on Banking and Financial Regulation of 20 December 1996 is amended as follows:
1° In Article 1, the word "Newsletter" is replaced, in its two occurrences, by the word "Registration";
2° In Article 3, the reference to Article L. 612-2 is replaced by the reference to Article L. 612-21;
3° Article 11:
(a) In the first paragraph, after the words: "its approval", the words are inserted: ", electronic currency management operations already issued";
(b) A fourth preambular paragraph should read:
"By derogation from the provisions of the first paragraph, a legal person who has obtained an approval as an electronic currency establishment in place of the one available as a credit institution may develop the electronic currency issuance and management operations that its approval in the course of withdrawal allows it to provide and that are compatible with its new approval as well as the related operational or closely related services referred to in the 3rd of Article L. 526-2, » ;
4° In the first paragraph of Article 12, after the words: "L. 321-1 of the monetary and financial code", are inserted the words: ", the issue or management of electronic currency defined in Article L. 315-1 of the same code" and, after the word: "or", are inserted the words: "the supply";
5° In article 14, the words: "whose approval has been withdrawn by the Autorité de contrôle prudentiel" are replaced by the words: "whose approval has been withdrawn" and the words: "it informs the Autorité de contrôle prudentiel qui fixes" are replaced by the words: "it fixes".
The above-mentioned Regulation No. 90-02 of the Banking Regulation Committee of 23 February 1990 is amended as follows:
1° Article 1 is as follows:
"Art. 1st. - I. These Regulations apply:
“– to credit institutions;
“– to the financial companies;
“– to payment institutions;
“– electronic currency institutions;
"– to investment companies, other than portfolio management companies and investment companies that do not own funds or securities owned by the client and that exclusively provide the investment service referred to in the 1 of Article L. 321-1 of the monetary and financial code,
"hereinafter referred to as "subscribed establishments".
“II. - For the purposes of these rules,
"(a) "clean funds": the sum of the core funds defined in Articles 2 and 2 bis and of the supplementary funds defined in Article 4, within the limits provided for in Article 5, the sum of which shall be deducted under the conditions defined in this Regulation the participations, subordinate receivables and any other component of the own funds referred to in Article 6, the securitization positions referred to in Article 6 bis, the commitments referred to in Article 6
"When the calculation of the equity is to be made on a consolidated basis, the rules set out in section 7 apply.
"(b) IFRS standards: IAS/IFRS international accounting standards and SIC/IFRIC interpretations, in their latest version adopted by the European Commission pursuant to European Regulation (EC) No. 1606/2002.
"(c) institutions subject to IFRS standards:
"– establishments subject to prudential supervision on a consolidated basis or under-consolved basis in accordance with Regulation No. 2000-03 of the Banking and Financial Regulatory Committee of 6 September 2000 and which publish consolidated accounts in accordance with international accounting standards as defined in Regulation (EC) No. 1606/2002, as a result of the mandatory or optional application of this regulation;
"– establishments subject to prudential supervision on a sub-consolved basis in the absence of any accounting obligation in this matter, where the consolidated accounts of their parent company are published in IFRS standards under the conditions of the preceding paragraph.
"III. - The equity of the subject establishments shall not at any time become less than the minimum capital amount provided for in the legislation or regulations applicable to them. » ;
2° In the tenth paragraph of Article 2, after the words: "within the expectation of his assignment," the words are inserted: "within the distribution of dividends to be expected";
3° At the I of Article 6 ter, after the words: "articles L. 511-13", are inserted the words: ", L. 522-6, L. 526-9, L. 526-10".
The above-mentioned decision of 20 February 2007 is thus amended:
1° In article 1, after the second paragraph, a paragraph is inserted as follows:
"– electronic currency institutions that provide credits in the provision of related services to the provision of payment services referred to in theArticle L. 526-2 of the Monetary and Financial Code ;
2° In title I, after article 3-5, an article 3-6 is inserted as follows:
"Art. 3-6. - By derogation from section 2-1, electronic currency institutions that provide credits in the provision of related services to the provision of payment services referred to inArticle L. 526-2 of the Monetary and Financial Code must at any time have an amount of equity equal to the sum of the requirements set out in section 42 of the May 2, 2013 Order relating to the prudential regulation of electronic currency institutions and such requirements as determined for the standard approach to credit risk. "
Regulation No. 96-16 of the Committee on Banking and Financial Regulation of 20 December 1996 is amended as follows:
1° At 3° of 2.2 of Article 2, the words: "the Community" are replaced by the words: "the European Union";
2° In the first paragraph of Article 2, the words: "Community" are replaced by the words: "The Union";
3° In article 3, a second paragraph is added:
"It may also ask any subject company to disclose to it all the financial information necessary to carry out its mission regarding its ten largest partners or shareholders each holding less than 10% of the capital but more than 0.5% or the corresponding figure set by the statutes under theArticle L. 233-7 of the Commercial Code.
4° Section 6 is repealed.
In the first draw of Article 1 of the above-mentioned Order of October 26, 2010, after the words: "L. 511-1 of the monetary and financial code," the words "electronic currency institutions referred to in Article L. 526-1 of the same Code" are inserted.
Regulation No. 2002-13 of the Committee on Banking and Financial Regulation of 21 November 2002 on electronic currency and electronic currency institutions is repealed.
In the third paragraph of Article 1 of Regulation No. 91-05 of the Banking Regulation Committee of 15 February 1991 referred to above, the words "and Article 14 of the Regulation of the Banking and Financial Regulation Committee No. 2002-13 relating to electronic currency and electronic currency institutions" are deleted.
The present order will be issued in the Official Journal of the French Republic.
A N N E X E S
A N N E X E 1
CONSTITUTION MODEL
ARTICLE 39
The establishment ...... (1) registered in the register of trade and companies of ...... under the number ...... ... represented by ...... duly authorized under ...... (2);
After reminding him that he was brought to his knowledge that: ... (3) below referred to as the "guaranteed establishment", asked the establishment referred to below as "the guarantor" to provide him with his autonomous warranty,
hereby declares, pursuant toArticle L. 526-32 of the monetary and financial code and Article 39 of the Decree of 2 May 2013 on the prudential regulation of electronic currency institutions, constitute a guarantor within the meaning ofArticle 2321 of the Civil Code under the following terms and conditions.
Article 1
Purpose of the guarantee
This guarantee constitutes a purely financial commitment. It is exclusive of any obligation to do and is consented to within the limit of the maximum amount referred to in section 2 to cover the funds collected by the secured establishment as an electronic currency establishment either electronic currency holders or through another electronic currency issuer in the context of the issuance and management of electronic currency, in case the secured establishment is not in a position to meet its financial obligations.
This guarantee does not cover compensation due by the secured establishment to third parties who may be adversely affected by a wrong or non-performance of an obligation related to the activity of the third party.
Article 2
Amount
2.1. Amount
The maximum amount of the guarantee is (4).
2.2. Actualization
The maximum amount of the guarantee is updated to comply with the conditions laid down in section 39 of the Order as to the minimum amount of the guarantee.
Article 3
Duration
1. Duration
This warranty undertaking shall take effect from .... (5). It expires... (6), at 6 p.m.
2. Renewal
The warranty shall be renewed tacitly under the same conditions as the objects of the present, unless one of the parties makes the denunciation of the warranty at least .... (7) months before the due date.
Article 4
Guarantee implementation
In the event of an impossibility for the secured establishment to be able to meet its financial obligations related to the issuance and management of electronic currency, this guarantee may be brought into play by the Minister responsible for the economy by registered letter with a request for a notice of receipt addressed to the guarantor to the above address.
Article 5
Jurisdiction
This guarantee is subject to French law with competence of the French courts.
Made to (8), on (9).
A N N E X E 2
CAUTION MODEL
The establishment or the company ...... (1) registered in the register of trade and companies of ...... ... under the number ...... ... represented by ...... duly authorized under... (2);
After reminding him that it was brought to his knowledge that: ...... (3) below referred to as the "guaranteed establishment" has requested the establishment or the company referred to below as the "bond" to provide him with bail,
Declares herewith, pursuant to 2° of Article L. 526-32 of the monetary and financial code and Article 39 of the Order dated 2 May 2013 concerning the prudential regulation of electronic currency institutions, establish personal and solidarity bonds, in the sense of articles 2288 et seq. of the Civil Code, with the guaranteed establishment, in the terms and conditions below.
Article 1
Object of bail
This bond is a purely financial commitment. It is exclusive of any obligation to do and is consented to within the limit of the maximum amount referred to in section 2 to cover the funds collected by the secured establishment as an electronic currency establishment either electronic currency holders or through another electronic currency issuer in the context of the issuance and management of electronic currency, in case the secured establishment is not in a position to meet its financial obligations.
This deposit does not cover compensation due by the secured establishment to third parties who may be adversely affected by a wrong or non-performance of an obligation related to the activity of the third party.
Article 2
Amount
The maximum amount of the guarantee is ...... (4). Any payment made by the guarantor will reduce the overall amount of this commitment to competition.
Article 3
Duration
1. Duration
This deposit takes effect from ...... (5). It expires... (6), at 6 p.m.
2. Renewal
The bonding is renewed tacitly under the same conditions as the objects of the present, unless one of the two parties makes the denunciation of the bonding at least ... (7) months before the due date.
Article 4
Bailing
In the event of an impossibility for the secured establishment to be able to meet its financial obligations related to the issuance and management of electronic currency, this deposit may be brought into play by the Minister responsible for the economy by registered letter with a request for a notice of receipt addressed to the deposit at the address above indicated.
Article 5
Jurisdiction
This bail is subject to French law with jurisdiction of the French courts.
Made to (8), on (9).
Done on 2 May 2013.
Pierre Moscovici
