Key Benefits:
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PROPOSED LAW NO. 279 /X
Exhibition of Motives
The present proposed legislation of the legislative authorization has as its purpose to authorize the
Government to regulate access to the business of payment institutions and the provision of
payment services, as well as to define a sanctionatory framework within the framework of
activity of provision of payment services.
The authorized decree-law, which the Government proposes to approve in execution of the authorisation
legislative that it submits to the Assembly of the Republic, comes to transpose to the legal order
internal to Directive No 2007 /64/CE, of the European Parliament and of the Council, of 13 of
November 2007, concerning payment services in the internal market (henceforth
designated by Directive).
In this way, it is intended to transpose to the domestic legal order the new framework
community in respect of payment services, which has in view to ensure conditions
of a level playing field among all payment systems in the community space
and preserve consumer choice in better conditions of safety, efficacy and
cost efficiency.
The draft decree-authorized law is organised in five titles, having the aspects
essentials of the community scheme being transposed in the headings II and III, in broad tuning
with the systematic organization adopted by the Directive itself.
Title II regulates the matters relating to providers of payment services,
covering subjects relating to access to the activity of provision of these services and to the
conditions of access and exercise of the activity of the payment institutions, which
correspond to the new type of payment service providers introduced by the
Directive. Among other aspects of the discipline of payment institutions, they highlight
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the rules on the authorisation and registration process, the standards relating to its supervision
and the provisions that concretize the designated Community passport.
Title III addresses, on the one hand, the duties of pre-contractual and post-contractual information
and, on the other hand, of the standards that must conform to the rights and contractual obligations
of users and providers of payment services.
Specifically, the proposed scheme is to regulate the activity of the providers of
payment services that have as the main activity the provision of services of
payment to users of such services. They are excluded from the scope of
of the scheme, namely, the payment transactions carried out in cash given already
there is a single market for cash payments, and payment transactions
upon cheques on paper support, given that such operations, listening to their nature
intrinsic, cannot be treated in such an efficient way as other means of
payment. This does not prejudice the circumstance of any transfers of funds
are found to be subject to the provisions of Parliament Regulation No 1781/2006
European and of the Council of November 15, 2006 on the information on the
ordering that accompany the transfers of funds.
The draft decree-authorized law discriminates against the categories of entities that may
legitimately provide payment services. On a par with credit institutions, including the
electronic money institutions, and of the entity to whom it is dealed with the
universal postal service, a new category of providers of service providers has been introduced
payment formed by the payment institutions.
The conditions for the granting and maintenance of the authorisation for the exercise of the activity
of the payment institutions include prudential requirements commensurate with the risks
operational and financial assumed in the exercise of the activity. The requirements imposed on
payment institutions reflect the fact that this entities preset an activity
more specialised, which carries, therefore, more limited and likely risks of
monitoring and monitoring than those inherent in the wide range of activities provided,
for example, by credit institutions. Thus, expressly vetted to the institutions of
payment for the acceptance of users ' deposits, only by finding authorised to
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use funds received from users, for the provision of payment services. In
credit granting matter, payment institutions can only grant credit
(inter alia, through the opening of credit lines or the issuance and of the cards of
credit) in the event that this is strictly related to payment services. Thus,
only when credit is granted to facilitate payment services, whether from short
term, either for a term not exceeding twelve months, and is mainly refunded
using the own funds of the payment institution or other funds coming from
of capital markets, may the payment institutions be allowed to grant
credit.
Payment institutions are required to adopt measures that guarantee the
segregation between the clients ' funds and the respective funds, as well as having to
appropriate internal control mechanisms to comply with the obligations in respect of
of fighting against money laundering and the financing of terrorism.
The draft decree-authorized law comes to subject institutions of payment to standards
of accounting applicable to credit institutions, imposing, equally, the realization of
audit or legal certification of accounts of the respective accounting information.
It is further important to highlight the allocation to the Bank of Portugal of competence to carry out the
prudential and behavioural supervision of payment institutions.
Title III of the draft decree-authorized law comes to enshrine a set of rules
designed to ensure the transparency of conditions and information requirements that
governing payment services. In the exercise of one of the legislative options provided for in the
Directive, the diploma in transposition comes to equate microenterprises to consumers,
allowing those entities to benefit from the same level of tutelage as the Directive assigns
to consumers, particularly with regard to information.
From this regime it follows that the information to be provided to users must be
proportional to the respective needs and communicated under a uniform format. Is
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expressly consecrated the right of the consumer to receive the information free of charge
pertinent before being bound by any contract for the provision of services of
payment.
However, the information requirements applicable to a single payment transaction are
different from those applicable to a framework contract that provides for a series of operations of
payment. In practice, the framework contracts and the payment transactions by these
covered are more common and significant from an economic point of view than those
payment transactions of an isolated character. Therefore, the information requirements
prior to respect of those are quite exhaustive, the information being given
necessarily premised on paper or in another lasting support. In the operations of
payment of an isolated character, only the essential information shall be provided by
initiative of the provider of the payment service. As usually the payer is
gift when you give the order of payment, it is not necessary to demand that the information be
provided on paper support or in another lasting support. However, should the consumer the
request, essential information should be provided on paper support or in another
lasting support.
At any time in the course of the contractual relationship, the user of the service of
payment has the right to receive, at your request, the prior information and the contract-
frame, on paper support or in another lasting support, so as to be able to compare the
services and the conditions practiced by the different providers of payment services and,
in the event of a dispute, check your rights and contractual obligations.
With respect to the execution of operations, the payment service user has still
right to receive the basic information about the payment operations performed, without
additional charges. In the same way, the subsequent monthly information on the
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payment transactions made under a framework contract shall be provided
for free. However, taking into account the importance of price transparency and the
different needs of consumers, the parties may agree that they are
charged charges for more frequent or additional information.
In order to facilitate the mobility of customers, the users of the payment service have the
possibility of solving a framework contract, elapsed one year, without incurration in charge
of resolution. Pre-notice may not be agreed for a period longer than one month
when the complaint is carried out by the user of the payment service, nor by a
period less than two months when the one is by the provider.
Low-value payment instruments are subject to information requirements
less demanding, which guarantee, however, a level of protection proportional to the risks
limited of these instruments.
Regarding the charges, none of the intermediaries involved in the execution of
payment transactions shall be authorized to make deductions to the amount
transferred. However, the beneficiary must have the possibility to enter into an agreement
express with your payment service provider under which the latter
can deduct your charges. However, in order to allow the beneficiary to
check if the amount due is paid correctly, the subsequent information on the
payment transaction must indicate not only the total amount of the funds transferred
as also the amount of possible charges.
In relation to unauthorised payment transactions, the service provider of
payment shall immediately reimburse the user of the amount of the transaction of
unauthorized payment.
In order to encourage the user of payment services to be communicated, without delay
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unjustified, to the respective provider, any theft or loss of an instrument of
payment, thereby reducing the risk of unauthorized payment operations, the
user will only be responsible for a limited amount, save in the case of acting
fraudulent or gross negligence on their part. In addition, from the moment it
has notified the provider of the payment service that its instrument of
payment may be the subject of fraudulent use, the User shall not be obliged to
bear any additional losses resulting from the unauthorized use of that
instrument.
In the case of the implementation deadline, the transposition diploma assigns to the provider of
payment services of the payer the responsibility for ensuring that the amount
object of the transaction will be credited to the account of the payment service provider of the
beneficiary until the end of the first working day following receipt of the order of payment.
However, if the consumer carries out a cash deposit in a payment account
along with the provider of that payment service and in the currency of that payment account, the
payment service provider shall ensure that the amount is made available
immediately after the moment of receipt of the funds and with date-value coincident with
that moment.
On internal transfers and in the absence of stipulation to the contrary, the amounts in
money must be credited to the beneficiary's account on the day itself, if the transfer if
carry out between seated accounts at the same payment service provider, the
date value and the date of making available that of the moment of credit.
The liability of the payment service provider is established by the execution
correct of payment, in particular with respect to the totality of the amount of the transaction
of payment and time of execution, and full liability for any failure of the
other parties in the payment chain, up to the beneficiary's account. In consequence of this
liability, if it is not credited to the totality of the amount to the service provider
of payment of the beneficiary, the payment service provider of the payer shall
rectify the payment transaction or, without unwarranted delay, reimburse the payer the
amount corresponding to such an operation, without prejudice to any other requests for
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reimbursement that may be submitted pursuant to national law.
Finally, appropriate procedures are established for the handling of complaints
relating to payment service providers and to ensure the application of penalties
effective, proportionate and dissuasive. Without prejudice to the right of customers
present an action before the courts, a claim mechanism is to be provided for
for the Bank of Portugal and an extra-judicial redress mechanism of disputes, through the
membership of payment service providers to at least two entities enabled
to carry out arbitrations.
It was heard, on an optional basis, the Bank of Portugal.
Consultation with the National Consumer Council should be triggered.
Thus:
Under the terms of the paragraph d) of Article 197 (1) of the Constitution, the Government presents to the
Assembly of the Republic the following proposal for a law:
Article 1.
Subject of the legislative authorization
The legislative authorization is granted to the government for:
a) Regulate access to the activity of payment institutions and the provision of
payment services;
b) Institute a sanitation and settlement regime of the institutions of
payment;
c) Define the type of crime of breach of duty of secrecy within the framework of the activity
of the payment institutions and supervisory activity of the Bank of
Portugal in this field, and
d) Defining the illicit ones of mere social ordering and the general rules, of nature
substantive and procedural, which prove to be appropriate to ensure respect for the
legal and regulatory standards that discipline the activity of the provision of
payment services.
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Article 2.
Sense and extent of legislative authorization as to the limits to the exercise of the
activity of provision of payment services
In the use of the legislative authorization conferred by the letter (s) a) of the previous article, may the
Government to set limits on the exercise of the activity of providing services of
payment, on the following terms:
a) Identify the payment services included in the scheme to be defined and services
excluded from the scope of that scheme;
b) Reserve the exercise of the activity of providing payment services to
legal persons and, within these, only to certain categories;
c) Require the authorization of the Bank of Portugal for the exercise of the activity of
payment services;
d) Making the exercise of managerial, administration and administrative functions dependent
oversight at payment institutions, as well as the acquisition of
qualified stakes in these institutions, of suitability requirements and of
professional experience;
e) Making it dependent on registration with the Bank of Portugal the exercise of that
activity;
f) Making the exercise of this activity of the requirements check dependent
prudential, organization and conduct, and may be imposed duties of
professional secret;
g) Establish duties relating to the segregation of the estate between the goods of the
payment institutions and the goods of their customers;
h) Ascribe to the Bank of Portugal powers to:
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i) Passing regulatory standards relating to the exercise of the activity of
provision of payment services, and may notably fix
organizational, prudential requirements and relative to the idoneity and
professional experience of holders of qualified participations and the
members of the social bodies;
ii) Exercise, relatively to whom it exercises the activity, all the powers that
be conferred upon you by your organic law;
iii) Require the institutions to submit any necessary information
to the verification of compliance with the provision of the provision of services of
payment;
iv) Carry out inspections of the establishments of the service providers of
payment;
v) Issue specific recommendations and determinations for them to be sanctioned
irregularities detected;
vi) Appreciate the complaints made by users of services of
payment and
vii) Instruct the counterordinance processes by the violation of provisions
imperatives of the regime of access and exercise of the activity of services of
payment;
i) Enforce transparency and information requirements in the provision of services of
payment and
j) Define rights and obligations with respect to the provision of payment services.
Article 3.
Sense and extent of legislative authorization as to the sanitation scheme and
settlement of payment institutions
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In the use of the legislative authorization conferred by the letter (s) b) of Article 1, may the Government
institute a system of sanitation and settlement of payment institutions, in the
following terms:
a) Establish the scheme applicable to the sanitation of payment institutions
with registered office in Portugal;
b) To establish the regime applicable to the dissolution and settlement of institutions of
payment with registered office in Portugal, including branches established in others
Member States.
c) Consecration of the faculty of the Bank of Portugal to apply for the declaration of
insolvency if you check any of the facts mentioned in paragraph 1 of the article
20. of the Code of Insolvency and Business Recovery, approved by the
Decree-Law No 53/2004 of March 18, in its current wording.
Article 4.
Sense and extent of legislative authorization as to the type of rape crime
of the duty of secrecy
In the use of the legislative authorization conferred by the letter (s) c) of Article 1, may the Government
define the type of crime of breach of duty of secrecy within the scope of the activity of the
payment institutions and supervisory activity of the Bank of Portugal in this
domain, specifically, by remission to identical legal prediction applicable to institutions
financial already existing.
Article 5.
Sense and extent of legislative authorization as to the illicit of mere ordinance
social and the general rules, of a substantive and procedural nature, appropriate to guarantee
the respect for legal and regulatory standards that discipline the activity of
provision of payment services
1-In the use of the legislative authorization conferred by the ( d) of Article 1, may the Government
define as counter-ordinations punishable with fine between 3000 a to € 1500000 or of
€ 1000 a € 500000, whichever is applied to the collective ente or the natural person, the
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following offences:
a) The provision of payment services through agents without having to
been given compliance with the legal regime as to this matter;
b) The failure to comply with the legal conditions concerning the commission to third parties of functions
relief operational;
c) The non-constitution of commercial society which has as its exclusive object to
provision of payment services when determined by the Bank of
Portugal;
d) The failure to comply with the duty of file;
e) The violation of the rules on amendment and complaint of contracts-quadro;
f) The realization of payment in fun currency of that which was agreed upon between the
parts;
g) The absence of unlocking or replacement of an instrument of
payment;
h) The refusal to carry out payment orders;
i) Failure to comply with the deadlines for implementation, dates-value and dates of provision;
j) The failure, by providers of payment services, of the duties
concerning the provision of effective and appropriate extrajudicial means of
claim and redress of disputes;
l) The ducts provided for and punished in the sub- a ), b) , d) , f) and i) of Article 210 of the
General Regime of Credit Institutions and Financial Societies, approved
by Decree-Law No. 208/92 of December 31, in its current wording
(RGICSF), when practiced in the framework of the activity of the institutions of
payment.
2-In the use of the legislative authorization conferred by the ( d) of Article 1, may the Government
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define as counter-ordinations punishable with fine between 10000 a to € 5000000 or
from 4000 a to € 2000000, depending on whether it is applied to the collective ente or the natural person,
the following offences:
a) The provision of accounting information to the Bank of Portugal with
failure to comply with the provisions of the relevant legislation;
b) The violation of the legal rules on information and communications requirements;
c) The violation of the rules on charging charges;
d) The carrying out of payment transactions not authorized by the payer, by
there is no or no withdrawal of your consent to the execution of them;
e) The failure to meet the obligations associated with the payment instruments;
f) The failure to comply with repayment and payment obligations;
g) The violation of the limiting standards of the responsibility of the payer;
h) The default of the obligation to pay the full amount to the
beneficiary;
i) The failure to meet the obligations of recovery of funds and tracking
of the payment transactions;
j) The violations of mandatory precepts contained in regulations issued by the
Bank of Portugal;
l) The unauthorised practice, by any individuals or entities, of the activity
of provision of payment services;
m) The exercise, by the payment institutions, of activities not included in your
legal object or the provision of payment services not included in the
respective authorization;
n) The granting of credit, by the payment institutions, out of the conditions and
of the established legal limits;
o) The use, by the payment institutions, of the funds from the
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payment users for distinct purposes of the execution of services of
payment;
p) The violation, by the payment institutions, of the duty to use the accounts of
payment that they are holders exclusively for carrying out operations
of payment;
q) The realization of statutory changes, when not preceded by permission of the
Bank of Portugal;
r) The failure to comply with prudential standards, when it results or may result
serious injury to the financial balance of the entity concerned;
s) The failure to comply with the protection requirements of legally defined funds,
including non-compliance with determinations issued by the Bank of Portugal;
t) The ducts provided for and punished in the sub- c ), e) , f) , g ), l) , m) , o) , p ), q) and r) from the
article 211 of the RGICSF, when practiced in the framework of the activity of the
institutions of payment.
3-In the use of the legislative authorization conferred by the ( d) of Article 1, may the Government
establish the imputability of the illicit of mere social ordering that typify the title
of dolo and negligence, as well as the punishability of the attempt.
4-The Government may establish that to the proceedings relating to the illicit of mere ordering
social, which typify both in the administrative phase and in the judicial phase, are applicable
the special procedural and substantive rules set out in the RGICSF and,
secondarily, the regime applicable to the illicit of mere social ordering.
5-The Government may establish the disclosure regime, by entity responsible for the
supervision of payment institutions and too many providers of services of
payment, in full or by extract, of the decisions which ascribe responsibility for the
counterordinance practice regardless of whether or not such decisions are
definitive, with express mention of this fact.
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6-The Government may establish, for the illicit of mere social ordinance that typify, the
application, cumulatively with the main sanctions, of the following ancillary sanctions:
a) Publication of the condemnatory decision;
b) Seizure and loss of the object of the offence, including the economic product
of this, with observance of the provisions of Articles 22 to 26 of the Decree-Law
n ° 433/82 of October 27, in its current wording;
c) Suspension of the exercise of the right to vote allocated to the partners of the institutions
of payment, for a period of 1 a to 10 years;
d) Inhibition of the exercise of social positions and functions of administration, of
direction, of management or of managerial in credit institutions, societies
financial and payment institutions, for a period of six months to three
years, in the case of offences set out in paragraph 1, or one to ten years, in the case of
offences set out in paragraph 2; and,
e) Interdiction, in whole or in part, for a period up to three years, of the exercise of
activity of provision of payment services.
7-The Government may establish that, without prejudice to the provisions of the b) of the number
previous, if double the economic benefit exceeds the maximum limit of the fine
applicable, this is high for that value.
Article 6.
Duration
The present legislative authorization has the duration of 180 days.
Article 7.
Entry into force
This Law shall come into force on the day following that of its publication.
Seen and approved in Council of Ministers of April 30, 2009
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The Prime Minister
The Minister of the Presidency
The Minister of Parliamentary Affairs
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Thus:
In the use of the legislative authorization granted by the Law No. .../2009, de ..., and in the terms of the
points a) and b) of Article 198 (1) of the Constitution, the Government decrees the following:
Article 1.
Subject
The present decree-law transposes to the domestic legal order Directive No 2007 /64/CE
of the European Parliament and of the Council of November 13, 2007 on services
of payment in the domestic market, amending Directives n. ºs 97 /7/CE, 2002 /65/CE,
2005 /60/CE and 2006 /48/CE and repeal Directive No 97 /5/CE.
Article 2.
Legal regime regulating access to the activity of payment institutions and the
provision of payment services
It is approved in annex to the present decree-law, of which it is an integral part, the scheme
legal that regulates access to the activity of payment institutions and the provision of
payment services.
Article 3.
Amendments to the General Regime of Credit Institutions and Financial Societies
1-The Articles 4, 5, 6, 117, 117 to-and 212 of the General Regime of Credit Institutions
and Financial Societies, approved by the Decree-Law No. 298/92 of December 31,
and amended by the Decrees-Laws paragraphs 246/95, of September 14, 232/96, 5 of
December, 222/99, of June 22, 250/00, of October 13, 285/2001, of 3 of
November, 201/2002, of September 26, 319/2002, of December 28, 252/2003,
of October 17, 145/2006, of July 31, 104/2007, of April 3, 357-A/2007, of
October 31, 1/2008, of January 3, 126/2008, of July 21, 2008 and 211-
A/2008 of November 3 shall be replaced by the following:
" Article 4.
[...]
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1-[...]:
a) [...];
b) [...];
c) Payment services, as defined in Article 4 of the scheme
legal which regulates access to the activity of the institutions of
payment and the provision of payment services;
d) Issuance and management of other means of payment, not covered by the
previous article, such as checks on paper support, cheques from
travel on paper support and letters of credit;
e) [...];
f) [...];
g) [...];
h) [...];
i) [...];
j) [...];
l) [...];
m) [...];
n) [...];
o) [...];
p) [...];
q) [...];
r) [...];
s) [...].
2-[...].
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Article 5.
[...]
They are financial companies the companies other than credit institutions and
whose main activity consists in exerting one or more of the activities
referred to in para. b ), except financial leasing and factoring As well as in the
points d) a i) of paragraph 1 of the previous article.
Article 6.
[...]
1-[...]:
a) [...];
b) [...];
c) [...];
d) [...];
e) [ Repealed ];
f) [...];
g) [...];
h) [...];
i) [...];
l) [...];
m) [...].
2-[...].
3-[...].
4-[...].
Article 8.
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[...]
1-[...].
2-[...].
3-[...].
4-[...]:
a) [...];
b) [...];
c) [...];
d) From the provision of payment services, by institutions of
payment, in accordance with legal and regulatory standards that
governing the respective activity;
e) From the provision of services included in the legal object of the agencies of
exchange, by payment institutions, in accordance with the standards
legal and regulatory governing the respective activity.
Article 117-The
Institutions of Payment
The payment institutions are subject to the supervision of the Bank of
Portugal in the terms of the legal and regulatory standards governing the respective
activity.
Article 212.
[...]
1-[...]:
a) [...];
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b) [...];
c) When the accused is a natural person, inhibition of the exercise of
social positions and functions of administration, management, management or
heads in the institution of credit, financial society or institution of
payment determined or in any credit institutions,
financial companies or institutions of payment, for a period
from six months to three years, in cases provided for in Article 210, or of
one year to ten years, in cases provided for in Article 211;
d) [...].
2-[...]. "
Article 4.
Addition to the Legal Regime of Credit Institutions and Societies
Financial
It is added to the General Regime of Credit Institutions and Financial Societies the article
117.-B, with the previous wording of Article 117-A:
" Article 117-B
Companies relevant to payment systems
1-The Bank of Portugal may subject to its supervision the entities that
have the object of the object to exercise, or that they actually exercise, an activity
especially relevant for the operation of the systems of
payments, specifying the rules and obligations that are to them
applicable, from among those provided for in this Decree-Law for Societies
financial.
2-The entities that carry out any activity within the framework of the systems of
payments must report that fact to the Bank of Portugal and provide-
you all the information that he requests them.
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3-For the purposes of paragraph 1, it is considered to be especially relevant for the
payment systems, namely, the management activity of a
electronic network through which payments are made. "
Article 5.
Amendment to Law No. 25/2008 of June 5
Articles 3 and 24 of Law No. 25/2008 of June 5 laying out measures of a nature
preventive and repressive of combating the laundering of advantages of illicit provenance
and to the financing of terrorism, is replaced by the following:
" Article 3.
[...]
1-[...]:
a) [...];
b) [...];
c) [...];
d) [...];
e) [...];
f) [...];
g) [...];
h) [...];
i) [...];
l) [...];
m) Institutions of payment.
2-[...].
3-[...].
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4-[...].
Article 24.
[...]
1-Financial entities, excluding exchange agencies and the
payment institutions, become authorized to allow the execution of the
identification and diligence duties in relation to the clientele, set out in the
article 7 and in the paragraphs a ) a c ) of Article 9 (1), in a third entity,
pursuant to the terms to be regulated by the respective supervisory authorities,
when this is:
a) A financial entity referred to in Article 3 (1), established
in national territory and that is not a foreign exchange agency or a
payment institution;
b) [...].
2-[...]. "
Article 6.
Amendment to Annex I to Decree -Law No 156/2005 of September 15
Annex I to Decree-Law No. 156/2005 of September 15 is to have the following
wording:
" ANNEX I
[...]
1-[...].
2-[...].
3-[...].
4-Credit institutions, financial companies, payment institutions and
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postal service providers with regard to the provision of services of
payment.
5-[...].
6-[...].
7-[...].
8-[...].
9-[...]. "
Article 7.
Amendment to Decree-Law No 95/2006 of May 29
Articles 2 and 17 of the Decree-Law No. 95/2006 of May 29 on marketing
in the distance of financial services provided to consumers, they go on to the following
wording:
" Article 2.
[...]
For the purposes of this decree-law, it shall be deemed to be:
a) [...];
b) [...];
c) [...];
d) "Provider of financial services" credit institutions and societies
financial, the payment institutions, the financial intermediaries in
securities, insurance and reinsurance companies, mediators of
insurance and pension fund management companies;
e) [...].
Article 17.
[...]
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1-[...].
2-In cases in also the Decree-Law n. th [...], which transposes
the Directive No 2007 /64/CE, of the European Parliament and of the Council, of
November 13, concerning payment services in the domestic market,
articles 47, 48, 52 and 53 of the cited decree-law, prevail over the
provisions on information set out in Articles 9, 11 n. º1,
13., 14, with the exception of points c) a h) of Article 15, with the exception
of the points a) , b) and c) of paragraph 1 and of paragraph 2, and still of Article 16, with
exception of point a) of this decree-law. "
Article 8.
Amendment to Law No. 5/2002 of January 11
Articles 2, 3, 4, 13 and 14 of Law No. 5/2002 of January 11, which sets out
measures to combat organized and economic-financial crime and carry out the
second amendment to Law No. 36/94 of September 29, they are replaced by the following:
" Article 2.
[...]
1-In the phases of inquiry, instruction and judgment of proceedings concerning the
crimes set out in Article 1 the professional secret of the members of the
social organs of credit institutions, financial corporations and
payment institutions, their employees and those of people who
provide service, as well as the secret of the administration officials
tax, give in, if there are reasons to believe that the respective information
have an interest in the discovery of the truth.
2-[...].
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3-[...].
4-[...].
5-When dealing with information relating to defendants in the case or the
legal person, the order provided for in paragraph 2 always takes shape
generic, covering:
a) [...];
b) Information relating to bank accounts or payment accounts and
respective movements of which the accused or legal person is
incumbent or co-holder, or in respect of which he / she possesses powers to
carry out movements;
c) Information relating to banking and financial transactions or the
payment transactions in which the accused or the legal person
be actors;
d) [...];
e) [...].
6-[...].
Article 3.
Procedure relating to credit institutions, financial companies and institutions of
payment
1-Following the order provided for in the preceding article, the judicial authority or,
by his delegation, the criminal police body with competence for the
research, ask for credit institutions, financial companies or
payment institutions the information and supporting documents, or
your copy, which are relevant.
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2-Credit institutions, financial companies and institutions of
payment are required to provide the requested elements, within the time of:
a) [...];
b) [...].
3-[...].
4-[...].
5-[...].
6-Credit institutions, financial companies or institutions of
payment indicate to the Attorney General of the Republic an entity
central responsible for the response to requests for information and
documents.
Article 4.
Control of bank accounts and payment accounts
1-Bank account or payment account control mandates the
respective credit institution or institution of payment to be communicated
any movements on the account to the judicial authority or organ of
criminal police within the twenty-four subsequent hours.
2-Bank account or payment account control is authorized or
ordered, depending on the cases, by order of the judge, when it has large
interest for the discovery of the truth.
3-[...].
4-[...].
5-[...].
Article 13.
[...]
27
1-Who, being a member of the social bodies of credit institutions,
financial companies and payment institutions, their employee or the
they by providing service, or employee of the tax administration, provide
information or to deliver false or deturpted documents in the framework of
procedure ordered in the terms of Chapter II is punishful of
imprisonment of 6 months to 3 years or a fine not less than 60 days.
2-[...].
Article 14.
[...]
1-Constituent counterordinance, punishable with fine of € 750 a € 750000, the
non-compliance with the obligations set out in Chapter II by the
credit institutions, financial companies or institutions of
payment.
2-[...].
3-[...].
4-[...].
5-[...]. "
Article 9.
Abrogation standard
They are revoked:
a) Article 1 (4) of the Decree-Law No. 3/94 of January 11 on the activity
of the exchange agencies, as amended by Decree-Law No. 298/95, of November 18
and by Decree-Law No. 53/2001 of February 15.
28
b) The Decree-Law No. 41/2000 of March 17 on internal transfers and
cross-border held in the currencies of the member states of Space
European Economic.
c) Article 10 of Decree-Law No. 143/2001 on the protection of consumers
in respect of contracts concluded at a distance.
d) The point j) of Article 35 and Article 41 of the Decree-Law No 95/2006 of May 29,
on the distance marketing of financial services provided to
consumers.
e) The Notice of the Bank of Portugal No 3/2001 of March 7, 2001.
Article 10.
Transitional provisions
1-Exchange agencies and issuing companies or credit card management companies that,
before December 25, 2007, they were authorised and registered with a view to
in Portugal payment services within the meaning of this decree-law, may
continue your business in Portugal until April 30, 2011 without the authorisation
provided for in Article 10 of the legal regime regulating access to the activity of the
payment institutions and the provision of payment services, in annex to the
present decree-law.
2-During the transitional period, issuers or cardboard companies of
credit continue to be considered financial companies and to be governed by the willing
in the General Regime of Credit Institutions and Financial Societies and in legislation
specific that are applicable to them.
3-Fishing the period set out in paragraph 1, the companies that have not obtained permission
are prohibited from providing payment services.
Article 11.
29
Entry into force
This decree-law shall come into force on November 1, 2009.
30
Title I
GENERAL AND INTRODUCTORY PROVISIONS
Article 1.
Subject
The present decree-law regulates the access to the activity of payment institutions and the
provision of payment services, transposing to the domestic legal order the Directive
n. 2007 /64/CE of the European Parliament and of the Council of November 13, 2007,
on payment services in the domestic market, which amends the Directives n.
97 /7/CE, 2002 /65/CE, 2005 /60/CE and 2006 /48/CE and repeal Directive 97 /5/CE.
Article 2.
Definitions
For the purposes of this decree-law, it is understood to be:
a) "State-Member State of origin", one of the following States:
i) the Member State in which the registered office of the provider is situated
payment service; or
ii) if the provider of the payment service has not, under its law
national, any registered office, the Member State in which it is located
central administration;
b) "Host Member State", the Member State Distinguished Member of the Member State
of origin in which a payment service provider has an agent or a
branch or where it provides payment services;
c) "Payment Services" means the activities listed in Article 4;
d) "Payment institutions" means the legal persons to whom it has been granted
authorization, pursuant to Article 10, to provide and perform services of
payment throughout the Community;
31
e) "payment operation" means the act, practiced by the payer or by the beneficiary,
of depositing, transferring or raising funds, regardless of any
underlying obligations between the payer and the beneficiary;
f) "System of payments", a system of transfer of funds that is governed by
formal and standardised provisions and common rules regarding treatment,
compensation and settlement of payment transactions;
g) "Payer" means a natural or legal person who holds a payment account
and that authorizes a payment order from that account, or, in the absence of
account of payment, the natural or legal person issuing an order of
payment;
h) "Beneficiary" means a natural or legal person who is the intended recipient of the
funds that have been the subject of a payment transaction;
i) "Provider of payment services" means the entities listed in Article 7;
j) "User of payment services" means a natural or legal person who uses
a payment service for the title of payer or beneficiary or in both
qualities;
l) "Consumer" means a natural person who, in the contracts of payment services
covered by this Directive, acts with objectives that are alheiery to their activities
commercial or professional;
m) "framework contract" means a contract for the provision of payment services that governs the
future execution of individual and successive payment operations and which may
enunciate the obligations and conditions for the opening of a payment account;
n) "Sending funds", a payment service that involves the receipt of funds from
a payer, without the creation of any payment accounts in the name of the
payer or beneficiary, with the sole purpose of transferring the amount
corresponding to a beneficiary or to another service provider of
payment that acts on account of the beneficiary, and the receipt of such funds by
32
account of the beneficiary and the respective provision of the latter;
o) "Payment account", an account held on behalf of one or more users of
payment services that is used for the execution of operations of
payment;
p) "Funds", banknotes and coins, scriptural currency and electronic currency
as defined in point (b) of Article 1 (3) of Directive 2000 /46/CE;
q) "Order of payment", any instruction given by an ordained or a
beneficiary to its payment service provider requiring the execution of
a payment transaction;
r) "Data-value", the date of reference used by a service provider of
payment for the calculation of interest on the funds debited or credited in a
payment account;
s) "Reference exchange rate", the exchange rate used as a basis of calculation of
any foreign exchange operation, which shall be made available by the provider of the
payment service or emanate from a source accessible to the public;
t) "Authentication", a procedure that allows the service provider of
payment check the use of a specific payment instrument,
in particular the personalized security devices;
u) "Reference interest rate", the interest rate used as a basis of calculation of interest
to impute, and shall come from a source accessible to the public and which may
be verified by both parties in a payment service contract;
v) "Unique Identifier", the combination of letters, numbers, or symbols specified to the
user of the payment service by the payment service provider, which the
user of the payment service must provide to identify unequivocally
the other user of the payment service and the respective payment account
33
with a view to a payment transaction;
x) "Agent" means a natural or legal person who provides payment services in
name of a payment institution;
z) "Instrument of payment", any personalized device or set of
procedures agreed upon between the user and the provider of the payment service
and to which the user of payment services scrapes to issue an order of
payment;
aa) "means of distance communication", any means that can be used for the
conclusion of a contract for the provision of payment services without the presence
concurrent physics of the provider and the user of payment services;
bb) "durable support" means any instrument that allows the user of services
of payment store information that is personally directed to you, by
form to which this information can be consulted at a later time during a
period of time appropriate for the purposes of the said information and to allow the
exact reproduction of the stored information;
cc) "Microenterprise", a company that, at the time of the conclusion of the contract of
provision of payment services, be it a company according to the definition
in Article 1 and paragraphs 1 and 3 of Article 2 of the Annex to the Recommendation
2003 /361/CE;
dd) "Payday" day, day on which the payer of the payer's payment service or the
provider of the payment service of the beneficiary involved in the execution of a
payment operation finds itself open for the execution of a transaction of
payment;
ee) "Direct Debit", a payment service that consists of debiting the account of
payment of an payer, being the payment transaction initiated by the
beneficiary on the basis of the consent given by the payer to the beneficiary, to the
34
payment service provider of the beneficiary or the provider of services of
payment of the payer himself;
ff) "Branch", a separate establishment of the central administration that is part of
a payment institution, devoid of legal personality and which performs
directly all or some of the operations inherent in the activity of the institution
of payment; all establishments set up in the Country by an institution with
seat in another member state are considered a single branch;
gg) "Group", related companies to each other on the terms under which the Code of Societies
Commercials characterize this type of relationship, regardless of the respective
sedes if they are located in Portugal or abroad;
hh) "relevant operational function", the function whose failure or failure can impair
severely the compliance, by a payment institution, of the
conditions of authorisation set out in this Decree-law, its results
financial, their soundness or the continuity of their payment services.
Article 3.
Scope of application
1-The present decree-law shall apply to payment services provided in Portugal
by the service providers with registered offices in Portugal and their agents, as well as by the
agents and branches of service providers seated in another Member State.
2-Title III, with the exception of Art. 84, is only applicable when both
providers of payment services, or the single provider, are located in Portugal
or when one of the providers is located in Portugal and the other in another State-
Member of the Community.
3-Unless the provisions of Article 79, Title III shall apply to payment services
35
carried out in euro or in the currency of a Member State not belonging to the Eurozone.
Article 4.
Payment Services
They constitute payment services the following activities:
a) Services allowing to deposit cash in a payment account, as well as
all operations necessary for the management of that account;
b) Services that allow to raise cash from a payment account, as well as
all operations necessary for the management of that account;
c) Execution of payment transactions, including the transfer of funds
deposited in an open payment account with the provider of services of
payment from the user or another payment service provider:
i) implementation of direct debits, particularly of a punctual character,
ii) execution of payment transactions through a payment card
or of a similar device,
iii) execution of bank transfers, including orders of domiciliation;
d) Execution of payment transactions within which the funds are covered
by a line of credit granted to a user of payment services:
i) implementation of direct debits, particularly of a punctual character,
ii) execution of payment transactions through a payment card
or of a similar device,
iii) execution of bank transfers, including orders of domiciliation;
e) Issuance or acquisition of payment instruments;
f) Sending of funds;
g) Execution of payment transactions in which the consent of the payer to
the execution of the payment transaction is communicated through any
36
telecommunication, digital or computer devices, and the payment is
performed to the operator of the network or the telecommunications or informatics system,
acting solely as an intermediary between the user of the service of
payment and the supplier of the goods and services.
Article 5.
Exclusions
This decree-law shall not apply to the following operations:
a) Payment transactions carried out exclusively in cash directly from the
payer to the beneficiary, without any intermediation;
b) Payment transactions of the payer to the beneficiary through an agent
commercial authorized to trade or to complete the sale or purchase of goods or
services on behalf of the payer or the beneficiary;
c) Physical transport on the professional title of banknotes and coins, including the
collection, treatment and delivery of the same and recirculation of banknotes and
currencies;
d) Payment transactions consisting of the collection and delivery of cash to title
non-professional, in the frame of a non-profit activity or
charitable;
e) Cash supply services by the beneficiary to the payer as a part
of a payment transaction, following an express request from the user
of the payment service immediately prior to the execution of the operation of
payment by means of a payment intended for the purchase of goods or services;
f) Currency exchange services, i.e. cash transactions against cash,
when the funds are not held in a payment account;
g) Payment transactions based on any of the following documents
balcony about a payment service provider, with a view to placing funds
37
at the disposal of the beneficiary:
i) Cheques on paper support, governed by the Geneva Convention of 19
of March 1931, which institutes the Uniform Law concerning Cheque;
ii) Cheques on paper support analogous to those referred to in sub-paragraph i) and
governed by the laws of the Member States which are not parties to the
Geneva Convention of March 19, 1931, which institutes the Law
Uniform relative to Cheque;
iii) Withdrawals on paper support governed by the Geneva Convention of 7 of
June 1930, which establishes a Uniform Law concerning Letters and
Livancers;
iv) Withdrawals on paper support analogous to those referred to in sub-paragraph iii) and
governed by the laws of the Member States which are not parties to the
Geneva Convention of June 7, 1930, which establishes a Law
Uniform relating to Letters and Livrands;
v) Tallies on paper support;
vi) Travel checks on paper support.
vii) Postal orders on payment on paper support, as defined
by the Universal Postal Union;
h) Payment transactions carried out within the framework of a payment system or
settlement of transactions on securities between settlement agents,
central counterparties, clearing houses or central banks and others
participants in the system, on the one hand, and providers of payment services, by
another, without prejudice to Article 39;
i) Payment transactions relating to services linked to securities,
including the distribution of dividends and income or other distributions, or
the refund or sale of securities made by persons referred to in
point ( h) or by investment firms, credit institutions, bodies of
38
collective investment or asset management companies that provide services of
investment and any other entities authorized to proceed to the guard of
financial instruments;
j) Services provided by technical service providers, who support the provision of
payment services without entering into the possession, at time some, of the funds
object of the transfer, which consisted in particular of the processing and
storage of data, in the services of protection of trust and privacy,
in the authentication of data and entities, in the provision of communication networks and
informatics or in the supply and maintenance of terminals and devices
used for payment services;
l) Services based on instruments that can be used to acquire goods or
services only in the premises used by the issuer or under an agreement
commercial concluded with the issuer within a restricted network of providers
of services or in relation to a restricted range of goods and services;
m) Payment operations performed through any devices of
digital or computer telecommunications, if the goods or services purchased
are provided to a telecommunications, digital or informatic device and if
intended to be used through that device, provided that the operator of the
telecom, digital or informatic device does not act exclusively on the
quality of intermediary between the user of the payment service and the
supplier of the goods and services;
n) Payment transactions carried out between payment service providers,
your agents or branches by your own account;
o) Payment transactions between a parent company and its subsidiaries, or between subsidiaries of the
same parent company, without any intermediation from a service provider of
payment that is not a company of the same group and
p) Cash withdrawal services offered by providers through boxes
payment automatics, which act on behalf of one or several issuers of
cards and are not parties to the framework contract with the customer withdrawing money from the
39
payment account, on the condition that these providers do not ensure others
payment services listed in the Annex.
Article 6.
Competent authority
1-Compete to the Bank of Portugal to exercise prudential and behavioural supervision in the
scope of this decree-law, by which it shall be, in particular:
a) Grant the authorization for the constitution of payment institutions and revoke it
in the cases provided for in the law;
b) Scrutinizing compliance with the provisions of this decree-lei;
c) Issue the regulatory standards that show necessary for the application of their
provisions;
d) Appreciate the complaints made by users of payment services;
e) To initiate counterordinance processes and apply the respective sanctions.
2-In the exercise of its supervisory powers, can the Bank of Portugal, in
special:
a) Require the payment institutions to submit any information that
consider necessary for the verification of compliance with the standards of the present
decree-lei;
b) Carry out inspections of the establishments of the payment institutions, as well as
to those of branches and agents who provide payment services under their
liability and, still, the establishments of third parties to whom they have been
committed relevant operational functions relating to payment services;
c) Issue specific recommendations and determinations in order to be sane the
irregularities detected.
3-The Bank of Portugal exercises its prudential supervisory competencies in relation
to payment institutions with registered offices in Portugal, including their respective branches and
40
agents established abroad.
4-The Bank of Portugal oversees compliance with Title III standards by part
of payment service providers with registered office in Portugal or established in the Country,
including branches and agents of authorized payment institutions in others
Member States.
5-Article 12 of the General Regime of Credit Institutions and Financial Societies
(RGICSF) is applicable, with the necessary adaptations, to the decisions of the Bank of Portugal
taken in the framework of this decree-law.
6-Article 12 of the RGICSF shall apply to the time limits set out in this Decree-
law.
7-In the application of competition defence legislation to providers of services of
payment and their business associations, as well as payment systems, are
also applicable to Article 87 and Article 88 of the RGICSF, with the necessary adaptations.
Title II
PROVIDERS OF PAYMENT SERVICES
CHAPTER I
Access and general conditions of the activity
Article 7.
Providers of payment services and principle of exclusivity
1-You can only provide the payment services referred to in Article 4 of the present
decree-law the following entities:
a) Credit institutions, including electronic money institutions, with headquarters
41
in Portugal;
b) The payment institutions with registered office in Portugal;
c) The concessionary entity of the universal postal service;
d) Portuguese State, Autonomous Regions, bodies of direct Administration and
indirect state of the State, when acting devoid of powers of public authority.
e) The Bank of Portugal, when it does not exercise public powers of authority.
f) Credit institutions, including electronic money institutions, and the
payment institutions with registered office in another member state of the Community
European, under the terms of this decree-law.
2-The entities referred to in point (f) of the preceding paragraph shall only provide the
payment services that they are authorized to provide in their country of origin.
3-The use of the expression "institution of payment" is exclusively reserved to these
entities, which will be able to include it in their firm or denomination or use in the exercise of their
activity.
4-Payment institutions with registered office in another Member State may use the firm or
denomination they use in their Member State of origin, according to the provisions of the
article 46 of the RGICSF, applicable with the necessary adaptations.
5-The provisions of Article 126 of the RGICSF shall apply, with the necessary adaptations, in
suspected case of suspicion founded of provision of payment services by entity no
enabled.
Article 8.
Institutions of Payment
1-Payment institutions are providers of payment services, subject to the
scheme of this decree-law, which have the object of the provision of one or more services of
payment.
2-Payment institutions may still carry out the following activities:
42
a) Closely related operational and ancillary services with services of
payment, specifically, provision of guarantees of execution of operations of
payment, foreign exchange services and guard services, storage and treatment of
data;
b) Exploitation of payment systems, without prejudice to the provisions of Article 39;
c) Various professional activities of the provision of payment services, in
compliance with the legal provisions applicable to such activities and
d) Activities included in the legal object of foreign exchange agencies, in accordance
with the legal provisions applicable to those institutions.
3-The funds received by the payment institutions and from the users of
payment services can only be used for the execution of payment services,
not constituting receipt of deposits or other reimbursable funds within the meaning of the n.
1 of Article 2 of the RGICSF.
4-Payment accounts held together from payment institutions can only be
used for the provision of payment services.
5-They shall apply to the payment institutions, with the necessary adaptations, the rules
on publicity provided for in Article 77-C of the RGICSF, as well as the powers conferred
to the Bank of Portugal by Article 77-D of the same decree-law.
6-It shall apply to the payment institutions with registered office in Portugal the scheme of
sanitation of credit institutions established in the RGICSF, with the necessary
adaptations.
43
7-A dissolution and the settlement of payment institutions with registered office in Portugal,
including branches established in other Member States, which have per object
exclusive to the provision of payment services, or the activities referred to in the
points a) , b ) and d) of paragraph 2, shall be subject, with due adaptations, to the scheme provided for in the
chapter II of the Decree-Law No. 199/2006 of October 25 on the liquidation of
credit institutions and financial corporations.
8-Payment institutions that shall simultaneously exercise the activities to which
refers to point c) of paragraph 2 shall be subject to the Code of Insolvency and Recovery of
Companies, with the specialities set out in the following numbers.
9-The Bank of Portugal may apply for the declaration of insolvency if you check any
of the facts mentioned in Article 20 (1) of the Code of Insolvency and Recovery of
Companies.
10-Without prejudice to the reporting duties to the Bank of Portugal imposed by the law on
payment institutions, the court in which the declaration of insolvency is required
informs immediately the Bank of Portugal of that fact for the purposes of the possible revocation of the
authorization for the exercise of the activity as an institution of payment.
11-If the authorisation is not revoked by the Bank of Portugal, the declaration of insolvency
implies the expiry of the effects of the permit, by the way of the Bank of Portugal exercising in the
insolvency proceedings the skills conferred on it by Articles 12 and 14 of the
Decree-Law No. 199/2006 of October 25.
Article 9.
Granting of credit
1-Payment institutions can only grant credit in the event that this is
44
related to the payment services listed in paragraphs 4, 5 and 7 of Article 4 and
provided that the following conditions are met:
a) The credit shall be ancillary and granted exclusively in the context of the implementation of the
payment operation;
b) The credit granted in the context of the exercise of the right of establishment and the
freedom to provide services, under Articles 23 and 24, shall be
refunded in a time never exceeding twelve months, notwithstanding the provisions
legal in respect of credit granting through credit cards;
c) Credit may not be granted from the funds received or held for
execution of a payment transaction;
d) The payment institution must have, at all time, own funds
appropriate to the volume of credit granted, in accordance with the
determinations of the Bank of Portugal.
2-The provisions of this decree-law shall be without prejudice to the legal provisions applicable to the
credit to consumption.
3-Payment institutions granting credit under this Article
must report to the Central of Credit Liability, managed by the Bank of
Portugal, the elements of information relating to the operations they carry out, in the terms
and for the effects provided for in the regulatory legislation of the centralization of responsibilities of
credit.
Chapter II
Authorization and registration of payment institutions
Article 10.
Authorization and general requirements
1-A constitution of payment institutions, with a view to the provision of one or more
45
payment services, depends on authorisation to be granted, on a case by case, by the Bank of
Portugal.
2-Portugal-based payment institutions must meet the following
conditions:
a) Adopt the form of anonymous society or by quotas;
b) Having the minimum capital corresponding to the payment services to be provided, in the
terms of Article 29;
c) Having the main and effective head office of the administration located in Portugal;
d) Present solid devices in the matter of government of society, including a
clear organizational structure, with well-defined lines of responsibility,
transparent and coherent;
e) Organizing effective processes of identification, management, control and communication of the
risks to which it is or may come to be exposed;
f) Have appropriate mechanisms for internal control, including procedures
solid administrative and accounting;
g) Having internal control mechanisms to comply with the obligations in
fight against money laundering and the financing of the
terrorism, including the provisions relating to the information on the payer that
accompany the transfers of funds.
3-It also depends on permission from the Bank of Portugal to extend the cast of the
payment services, from among those listed in Article 4, which institutions of
payment already constituted if they are proposing to provide.
Article 11.
Statement of the order
1-The application for permission will be instructed with the following elements:
a) Draft contract of society or amendment to the contract of society, of
46
where it consists of an express reference to payment services, from among the
listed in Article 4, which the payment institution proposes to provide;
b) Programme of activities, geographical deployment, organic structure and means
humans, technicians and materials that will be used, including, being a case of this,
reference to the agents and branches of the institution, as well as third parties to whom hajam
been committed operational functions, and the predictive accounts for each of the
first three years of activity;
c) Declaration of commitment that in the act of the constitution, and as a condition of it,
if it will show itself deposited in a credit institution the amount of the minimum capital
required in Article 29;
d) Identity and the respective supporting elements of the persons who hold,
directly or indirectly, qualified shareholdings within the meaning of paragraph 7 of the article
13. of the RGICSF, as well as the size of the respective shareholdings and evidence of the
your suitability, taking into account the need to ensure sound and prudent management
of the institution of payment;
e) A description of the procedures designed to ensure the protection of funds
of the users of the payment services, pursuant to Article 32;
f) Supporting elements of the existence of solid devices in relation to
government of the society, including a clear organizational structure, with lines of
well-defined, transparent and coherent responsibility, effective processes of
identification, management, control and communication of the risks to which it is or may come to
be exposed and appropriate mechanisms of internal control, including
solid administrative and accounting procedures, owing to the devices,
procedures and mechanisms referred to be complete and proportional to the nature,
level and complexity of the activities of the payment institution;
g) Supporting elements of the existence of internal control mechanisms for
to comply with the obligations in relation to the fight against the bleaching of
47
capitals and the financing of terrorism, including the provisions relating to
information on the payer accompanying the fund transfers;
h) Description of the way in which the structures of the applicant institution are organised,
specifically, where appropriate, description of the intended use of the agents and of the
branches and a description of the provisions on the provision of services by
third parties, as well as their respective participation in national payment system
or international;
i) Supporting elements of the identity of the Directors and the persons responsible
by the management of the payment institution and, where appropriate, of the persons
responsible for the management of the institution's payment services activities
applicant, as well as proof that they are elderly people and possess the
appropriate knowledge and experience required by the Member State of origin
of the requesting institution to perform payment services;
j) Where appropriate, the identity of the official reviewers of accounts and of the societies of
statutory auditors of accounts within the meaning of the [Directive 2006 /43/CE concerning the
official review of annual and consolidated accounts];
l) Address of the central administration of the payment institution.
2-For the purposes of the e) , f) and h) from the previous number, the applicant institution must
present a description of the mechanisms it has created in terms of auditing and organization
with a view to taking all reasonable steps to protect the interests of their
users and ensure the continuity and reliability of the provision of the services of
payment.
3-Applies to the provisions of paragraphs 2 a to 4 of Article 17 of the RGICSF, with the necessary
adaptations, with respect to the information to be submitted by the legal persons who are
holders of qualifying stakes in the institution to constitute.
Article 12.
Suitability and professional experience of the members of the governing bodies, administration and
48
surveillance
1-Applies the provisions of articles 30 to 32 of the RGICSF, with the necessary adaptations,
with regard to the suitability and professional experience of the members of the organs of
administration and oversight of payment institutions.
2-With respect to payment institutions that also exercise the activities
referred to in point (c) of Article 8 (2), the requirements relating to the professional experience
only apply to persons to whom it kayaks to ensure the day-to-day management of the activity of
payments.
Article 13.
Separation of activities
The Bank of Portugal may determine, as a condition for granting the authorization, the
constitution of a commercial corporation that has the sole purpose of the provision of
payment services listed in Article 4, should the activities alheany to the services of
payment exercised or to exercise by the applicant to prejudice or be able to harm:
a) The financial soundness of the payment institution; or
b) The appropriate exercise of the supervisory functions by the Bank of Portugal.
Article 14.
Decision
1-A Decision on the application for authorisation shall be notified to those interested in the time limit
of three months from the receipt of the application or, if it is the case, to the receipt of the
additional information requested from the applicants, but never after decorations
12 months on the date of the initial delivery of the application.
2-Applies to the refusal of authorization the provisions of Article 20 of the RGICSF.
3-A refusal of permission shall be substantiated.
Article 15.
Statutory changes
49
1-Are subject to prior authorization from the Bank of Portugal the changes in the contracts of
society concerning the following aspects:
a) Firm or denomination;
b) Object;
c) Location of the head office, save if the change occurs within the same county or to
limitrof concelho;
d) Social capital, when it deals with reduction;
e) Creation of categories of shares or changes to existing categories;
f) Structure of administration or surveillance;
g) Limitation of the powers of the administration or supervisory bodies;
h) Dissolution.
2-The remaining changes become subject to immediate communication to the Bank of Portugal.
Article 16.
Expiry and revocation of the authorisation
1-Applies to the expiry of the authorization of the payment institutions the provisions of the
article 21 of the RGICSF, constituting also grounds for expiry of the suspension of the
activity for period of more than 6 months.
2-It shall apply to the revocation of the authorization of the payment institutions, with the
necessary adaptations, the provisions of articles 22 and 23 of the RGICSF, considering
still grounds for revocation of the permit the circumstance of the institution constituting
a threat to the stability of the payment system by the fact that it continues to
activity of provision of payment services.
3-Constitute of equal basis for the revocation of the authorization of the serious violation of the
duties laid down in Law No. 25/2008 of June 5, which sets out measures of a nature
preventive and repressive of combating the laundering of advantages of illicit provenance
and to the financing of terrorism.
50
Article 17.
Merger, fission and voluntary dissolution
The provisions of Article 35 and Article 35 (1) of the RGICSF shall apply, with the
necessary adaptations, to the merger, fission and voluntary dissolution of payment institutions.
Article 18.
Agents
1-Payment institutions may provide payment services by means of
agents, taking responsibility for the totality of the acts practiced by them.
2-Should they wish to provide payment services through agents, the
payment institutions with registered office in Portugal must report to the Bank in advance
of Portugal the following information:
a) Name and address of the agent;
b) Description of the internal control mechanisms used by the agent to give
compliance with the provisions of Law No. 25/2008 of June 5, which it establishes
measures of a preventive and repressive nature of combating the bleaching of
advantages of illicit provenance and the financing of terrorism;
c) Identity of persons responsible for the management of the activity of agents and evidence
of the respective idoneity and competence.
3-Received the information listed in the preceding paragraph, the Bank of Portugal
proceeds to the registration of the agent in the special register, pursuant to Articles 20 and 21, to
less than you consider that the same are incorrect, in which case you may take action
seeking to verify the information.
4-The Bank of Portugal will refuse the registration of the agent on the record if, after taking the
measures referred to in the preceding paragraph, consider that the correction of the information
provided in the terms of paragraph 2 has not been sufficiently demonstrated.
5-Payment institutions must ensure that the agents who act on their behalf
51
inform of this fact the users of payment services.
Article 19.
Provision of services by third parties
1-Payment institutions may commit to third parties the operational functions
relating to payment services.
2-The Bank of Portugal must be previously informed of the intention to commit the
third parties operational functions regarding payment services.
3-A payment institution that commits to third parties the performance of functions
relevant operational must safeguard the quality of internal control and ensure that the
Bank of Portugal has conditions to check compliance with all legal provisions
applicable.
4-A The commission to third parties of relevant operational functions shall comply with the following
conditions:
a) The responsibilities of senior executives cannot be committed to
third parties;
b) The institution shall be responsible for compliance with the provisions laid down in this
decree-lei; and
c) The institution is still obliged to comply with the conditions of authorisation.
Article 20.
Subjection to registration
1-Payments institutions cannot start their business while not if
are found to be registered in special register at the Bank of Portugal.
2-The registration will cover all the institutions enabled to provide payment services,
as well as the respective agents and branches.
52
Article 21.
Elements subject to registration and refusal of registration
1-Applies the provisions of articles 65 to 72 of the RGICSF, with the necessary adaptations,
to the register of payment institutions with registered office in Portugal and the respective agents and
branches.
2-The registration of payment institutions should still include elements relating to the
payment services that the institution is authorized to provide.
3-Are publicly accessible and regularly updated on the Bank's website
Portugal the following elements:
a) The identification of authorized payment institutions and the respective agents
and branches; and
b) The payment services understood in the respective authorisation.
Article 22.
Contentious means
To the resources of the decisions of the Bank of Portugal taken in the framework of this Chapter is
applicable, with the necessary adaptations, the provisions of Article 12 of the RGICSF.
Chapter III
Right of Establishment and Freedom of Prestation of Services
Article 23.
General Requirements
1-A payment institution with registered office in Portugal wishing to provide services of
payment for the first time in another Member State, specifically by
establishment of a branch or the hiring of agent, must notify in advance of that
fact the Bank of Portugal, specifying the following elements:
53
a) Country where it is proposed to establish branch, hire agent or, in general, provide
payment services;
b) Name and address of the institution of payment;
c) Organisational structure of the branch or the agent, when the latter is not a person
singular, and probable address of them in the host Member State;
d) Names of persons responsible for the management of the branch or the agent, in the terms
of the preceding paragraph, and evidence of their suitability and competence;
e) Type of payment services to be provided in the territory of the Member State of
reception.
2-Within one month of the receipt of the information referred to in the number
previous, the Bank of Portugal shall communicate them to the competent authorities of the State-
Member of host.
3-In the event of modification of the elements set out in points b) a e) of paragraph 1, the
payment institution will communicate it, in writing, to the Bank of Portugal and to the authority
competent from the host Member State.
4-For control of the requirements set out in paragraph 1, the Bank of Portugal will be able to carry out
inspections in loco in the host Member State or delegate to the realization, in the
terms set out in Article 34 (4).
Article 24.
Registration
If nothing opposes the registration of the branch or the agent in the register in accordance with the provisions of
in Article 21, the Bank of Portugal informs the competent authorities in advance
of the host Member State of its intention to register the branch or the agent and
takes into account the opinion of these entities.
54
Article 25.
Refusal or cancellation of registration
In the case that the competent authorities of the host Member State communicate
to the Bank of Portugal that have sufficient grounds to suspect that it was or is being
carried out an operation or an attempt at money laundering or
financing of terrorism within the meaning of Directive No 2005 /60/CE related to the
project to hire an agent or to open a branch office, or that such
hiring or opening up may increase the risk of money laundering operations
or of financing of terrorism, the Bank may refuse the registration of the branch or the
agent, or cancel it, if it has already been carried out.
Article 26.
Activity in Portugal of payment institutions based in other Member States
1-The payment institutions authorized in another Member State of the European Union,
which do not benefit from the derogation set out in Article 26 of Directive No 2007 /64/CE,
you will be able to provide payment services in Portugal, either through the opening of branches
or the hiring of agents, or in free provision of services, provided that such
services are covered by the authorisation.
2-Should the Bank of Portugal have sufficient grounds to suspect that it was or is the
be carried out an operation or an attempt to bleaching of capital or of
financing of terrorism within the meaning of Directive No 2005 /60/CE related to the
project to hire an agent or to open a branch office in a territory
Portuguese, or that such contracting or opening up may increase the risk of operations of
money-laundering or financing of terrorism, the Bank informs
competent authorities of the Member State of origin.
55
3-Payment institutions authorised in another Member State will be able to start their
activity in Portugal, as soon as the Bank of Portugal receives from the competent authority of the
State-Member State of origin the communications provided for in Article 23 (2) and in the article
24., with the specification of the elements that in the case couberin.
4-In the event of a modification of the elements set out in Article 23 (b) to (e), the
payment institution will communicate it, in writing, to the Bank of Portugal and to the authority
competent from the Member State of origin.
5-The agents of the institutions referred to in paragraph 1 shall inform their customers about the
institution in the name of whom they act.
6-In the exercise of its activity in Portugal, the mentioned institutions are subject
to the provisions dictated by reasons of general interest.
Article 27.
Subsidiaries and branches in third countries
To the establishment of branches and to the constitution of subsidiaries in third countries shall apply,
respectively, the Articles 42 and 42 of the RGICSF, with the necessary adaptations.
Chapter IV
Supervision of Payment Institutions
SECTION I
Prudential standards
Article 28.
General principle
Payment institutions must apply the funds they dispose of in such a way
ensure, at all time, adequate levels of liquidity and creditworthiness.
Article 29.
Minimum capital
1-Portugal-based payment institutions must, at all times, own
56
capital not less than:
a) 20000 €, for the institutions that only provide the payment service
indicated in the paragraph f) of Article 4;
b) EUR 50000, for the institutions that provide the payment service indicated in the
point ( g) of Article 4;
c) 125000 €, for the institutions that provide any of the payment services
indicated in the paragraph a) a e) of Article 4.
2-The minimum capital referred to in the preceding paragraph shall be made up of the elements
defined in the points a) and b) of Article 57 of Directive No 2006 /48/CE.
3-Payment institutions shall constitute special reserves designed to strengthen the
net situation or to cover damages that the profit and loss account cannot support.
Article 30.
Own funds
1-The own funds of the payment institution shall not be less than the value of the
minimum capital required under the previous article or to the amount that result from the
Application of the following article, whicheter is higher.
2-The rules on the composition of the own funds of the payment institutions are
those fixed by warning from the Bank of Portugal.
3-Checking of the decrease in own funds below the limit set out in paragraph 1, the
Bank of Portugal may, whenever circumstances so warrant, grant to the institution
a limited time frame for them to regularize the situation.
4-Should the payment institution belong to the same group as another institution of
payment, credit institution, financial society or insurance company is not
allowed the multiple use of eligible elements for own funds.
5-A multiple use of the elements eligible for own funds is also not
permitted in relation to payment institutions that exercise other distinct activities
57
of the provision of the payment services indicated in Article 4.
6-When a payment institution pursuits other distinct activities of the provision
of the payment services indicated in Article 4, which are also subject to
requirements of own funds, the payment institution must additionally respect such
requirements.
Article 31.
Requirements of own funds
1-The own funds of payment institutions must, in permanence, be equal
or higher than the amount that result from the application of one of the three methods described in
annex to this decree-law.
2-For the purposes of the provisions of the preceding paragraph, it is incumbent upon the Bank of Portugal to define the
method to be applied by each payment institution.
3-Based on an evaluation of the risk management procedures, the relative data
to the risks of losses and internal control mechanisms, the Bank of Portugal may
require or permit, respectively, that the payment institution detain an amount
of own or lower own funds in 20%, at the most, upstream that would result
of the application of the method defined in the terms of the preceding paragraph.
4-Notwithstanding the provisions of the preceding paragraphs and in Articles 29 and 30, the Bank of
Portugal may adopt the procedures laid down in Article 6 in order to ensure that the
payment institutions affect the exploitation of their service provision activity
of payment a sufficient level of own funds, specifically when the
activities referred to in Article 8 (2) prejudice or may impair the soundness
financial institution of the payment institution.
Article 32.
Requirements for protection of funds
58
1-Payment institutions shall ensure the protection of the funds they have been
received from users of payment services, or through another provider of
payment services, for the execution of payment transactions in accordance with a
of the following procedures:
a) Ensuring that the funds:
i) are not, at any time, aggregated with the funds of any
natural or legal natural person distinguished from users of the services of
payment on account of which the funds are held; and
ii) are deposited in a separate account at an institution of credit or
invested in safe, liquid and low-risk assets, in cases where
these funds find themselves still held by the payment institution,
without having been delivered to the beneficiary or transferred to another
payment service provider, by the end of the business day following that
in which they have been received; and
iii) are segregated in accordance with the provisions of paragraph 3 of this Article, in the
interest of the users of the payment service in question, of the credits
of other creditors, in particular in the event of liquidation of the institution of
payment.
b) Ensuring that funds are covered by an insurance policy or other
equated warranty, provided by an insurance company or institution of
credit that does not belong to the same group of the payment institution itself,
in an amount at least equivalent to what would be separated in the absence of the
said insurance policy or other warranty equating, payable in the case of the
institution of payment shall not be able to meet its financial obligations.
59
2-For the purposes of the provisions of the iii . (a) of paragraph 1, in the event of a settlement of the institution
of payment, the amounts delivered by the users of payment services no
can be seized for the mass in liquidation, by watching the respective holders the
right to claim their separation or restitution.
3-Should a payment institution receive funds in which a fraction of these are
used in future payment operations, being the remaining amount used
for various services of the payment services, the part of the funds that is used in
future payment operations shall also be subject to the requirements set out in the n.
1.
4-In case the fraction provided for in the preceding paragraph is variable, or it cannot be determined
in advance, the payment institution must ensure compliance with the requirements
of protection of funds on the basis of a representative fraction that the institution of
payment presuma come to be used for payment services, provided that such
representative fraction can be estimated reasonably on the basis of historical data.
5-The Bank of Portugal assesses the suitability of the estimates carried out and the procedures
implemented by the payment institution in fulfillment of the provisions of the present
article, and may determine the changes or adjustments it considers necessary.
6-The Bank of Portugal sets out, by warning, the remaining technical rules and procedures
necessary for the application of this article, specifically what is meant by assets
safe, liquid and low-risk, for the purpose of the sub-paragraph ii) of the paragraph a) from the
n. 2, as well as the essential conditions of the insurance policy or the equivalent guarantee and
the terms and procedures of the respective actuation, for the purposes of the provisions of the
b ) of paragraph 2.
Article 33.
Accounting and legal review of accounts
60
1-With the exception of payment institutions which presage any of the services of
payment listed in Article 4 and, at the same time, carry out other activities to the
shelter from the point c) of Article 8 (2), shall apply to the payment institutions as
accounting standards set by Notice No. 1/2005, of the Bank of Portugal, for the
credit institutions and financial corporations.
2-For supervisory purposes, payment institutions shall provide the Bank with
Portugal, in terms to be defined by instruction, separate accounting information for the
payment services listed in Article 4 and for the activities referred to in para.
2 of Article 8 para.
3-Accounting information referred to in the preceding paragraph shall be the subject of
audit or legal certification report to be drawn up by official reviewer of accounts or by
society of official auditors of accounts.
4-To the official reviewers of accounts or company of official reviewer of accounts at the service
of a payment institution and external auditors who, by legal requirement, presage
to an institution of payment auditing services shall apply the provisions of Article 121.
of the RGICSF.
5-The Bank of Portugal may require the realization of special audits by entity
independent, by itself assigned, at the expense of the audited payment institution.
SECTION II
Supervision of the Bank of Portugal
Article 34.
Supervisory procedures
1-The Bank of Portugal sail by the observance of the standards of this Title by exercising the
61
competencies set out in Article 6 and adopting the specially foreseen measures
other provisions.
2-Checking in some of the circumstances referred to in Article 13, the Bank of
Portugal may still determine, at any time, that the payment institution
subject to its supervision constitutes a commercial company that has the exclusive object
the provision of payment services listed in Article 4, within the period that for the purpose of
it is fixed to you.
3-Apply subsidiary to the supervision of payment institutions, with the
necessary adaptations, the provisions of the RGICSF, specifically the standards set out in
articles 120, 127 and 128 of that scheme.
4-The Bank of Portugal may carry out inspections in loco in the territory of the Member State
hosting or delegating such an incumbency in the competent authorities of the said
Member State, in one and in another case after notifying such entities.
5-In the exercise of its prudential supervisory functions, the Bank of Portugal cooperates
with the competent authorities of the host Member States and exchange with them
all essential and relevant information, in particular in the case of infringements or
suspected infringement on the part of an agent, a branch or an entity to whom
operational functions have been committed, and they must for that purpose communicate, if such
is requested, all relevant information and, on its own initiative, all the
essential information.
Article 35.
Payment institutions authorised in other Member States
1-The payment institutions authorised in other Member States and which provide
services in Portugal, provided that they are subject to the supervision of the competent authorities of the
countries of origin, are not subject to the prudential supervision of the Bank of Portugal.
62
2-Compete to the Bank of Portugal to collaborate with the competent authorities of the
Member States of origin with regard to the supervision of branches, agents and
third parties with operational functions, which prestakes services in Portugal under the
liability of the payment institutions mentioned in the preceding paragraph.
3-In view of exercising the functions of prudential supervision that are incumbent upon them, the
competent authorities of the Member States of origin, after having informed them of the fact
the Bank of Portugal, can carry out inspections in loco in Portuguese territory.
4-A the request of the competent authorities of the Member States of origin, the realization
of the inspections mentioned in the preceding paragraph may be delegated to the Bank of Portugal.
5-The Bank of Portugal exchanges with the competent authorities of the Member States of
origin all essential and relevant information, in particular in the case of infringements or
of suspected infringement on the part of an agent, a branch or an entity to
who have been committed operational roles, and shall have to this effect communicate, if
this is requested to you, all relevant information and, on your own initiative, all the
essential information.
6-In case of revocation or expiry of the authorization of payment institution in the
Member State of origin, Article 47 of the RGICSF shall apply, with the necessary
adaptations.
7-The provisions of the preceding paragraphs shall be without prejudice to the obligations incumbent upon
Bank of Portugal and the remaining competent Portuguese authorities, by virtue of Law n.
25/2008, of June 5, and of the Decree-Law No. 125/2008 of July 21, which establishes
measures necessary for the implementation of Regulation (EC) No 1781/2006, as regards the
supervision and monitoring of compliance with the standards set out in these decree-laws.
Article 36.
File
63
Without prejudice to other applicable legal provisions, specifically in the context of
prevention of money laundering or the financing of terrorism, the
payment institutions shall keep in file the records of all the operations of
payment and too much documentation relating to the provision of payment services during
the minimum term of five years.
Article 37.
Professional secrecy and Cooperation
1-The professional secrecy regime provided for in articles 78 and 79 of the RGICSF is
applicable to payment institutions, with due adaptations.
2-It is applicable to the Bank of Portugal the provisions of Articles 80 to 82 of the RGICSF, with the
specifics of the following numbers.
3-As a competent supervisory authority for the purposes of this decree-law, the
Bank of Portugal to cooperate and exchange information with the authorities of supervision of the
remaining Member States and, where appropriate, with the European Central Bank and banks
national central, as well as with other competent authorities designated in the terms
of the Community or national legislation applicable to providers of payment services.
4-The Bank of Portugal may also exchange information with the following entities:
a) Public authorities responsible for the supervision of payment systems and
settlement;
b) Other relevant authorities designated in accordance with Directive No 95 /46/CE,
of Directive No 2005 /60/CE and other decree-applicable Community legal laws
to providers of payment services, such as legislation applicable to the
protection of natural persons with regard to the processing of data
personal, as well as money laundering and financing of the
64
terrorism.
Article 38.
Violation of the duty of secrecy
Without prejudice to other applicable sanctions, the breach of duty of secrecy is punishable in the
terms of the Criminal Code.
CHAPTER V
Common provision
Article 39.
Rules on access to payment systems
1-The rules regarding access to payment systems by providers of
payment services authorised or registered that are legal persons must be
objective, non-discriminatory and proportionate, and should not hamper access in
measure that exceeds what is necessary to prevent specific risks, such as the risk of
settlement, operational risk and trade risk, and to safeguard stability
financial and operational of payment systems.
2-The provisions referred to in the preceding paragraph shall not be allowed to impose on the providers of
payment services, users of payment services or other systems of
payment:
a) Restrictions with regard to effective participation in other payment systems;
b) Discrimination between providers of authorized payment services or between
providers of registered payment services, concerning rights,
obligations or advantages assigned to participants or
c) Restrictions based on the society-based form adopted.
3-The provisions of the preceding paragraphs shall not apply:
65
a) To the payment systems designated under the Decree-Law No. 221/2000, of
September 9;
b) To payment systems consisting exclusively of providers of
payment services belonging to a group composed of entities that
possess capital links that confirm to one of the entities connected with a control
effective on the remaining ones;
c) To payment systems in which a single provider of payment services
(be it a singular entity or a group):
i) Acts or can act in the quality of payment service provider so much
for the payer as for the beneficiary and holds the responsibility
exclusive by the management of the system; and
ii) Licenses other payment service providers to participate in the
system, not having the latter right to negotiate commissions with each other
relatively to the payment system, although they can establish the
respective prices with respect to payers and beneficiaries.
4-Compete to the Bank of Portugal, under the assignments conferred on it by the
your organic law, ensure the application of the provisions of this Article, without prejudice to the
competences of the Competition Authority.
66
Title III
PROVISION AND USE OF PAYMENT SERVICES
CHAPTER I
Transparency of the conditions and information requirements applicable to the services of
payment
SECTION I
General rules
Article 40.
Scope of application
1-This Chapter applies to the insulated payment transactions, to the
framework contracts and payment transactions by these covered.
2-The provisions of this Chapter apply to microenterprises in the same way as
to consumers.
3-When the user of the payment service is not a consumer, the parties
may deviate in the whole or in part the provisions of this Chapter.
4-This Chapter applies without prejudice to the provisions of the Decree-Law No. 359/91, of
September 21, as amended by Decree-Law No. 101/2000 of June 2; the other legislation
concerning the conditions for the granting of credit to consumption is applicable in so far as
contains provisions not provided for in this chapter.
Article 41.
Other provisions of national legislation
1-The provisions of this Title shall be without prejudice to any provisions containing
supplementary requirements on pre-contractual information.
67
2-In the situations covered by the Decree-Law No. 95/2006 of May 29, Articles 47,
48, 52 and 53 of this Decree-Law shall prevail over the provisions of Articles 9, 11 para.
1, 13, 14, with the exception of points (c) to h), Article 15, with the exception of points (13) a ), b) and
c) of paragraph 1 and paragraph 2, and still of Article 16, with the exception of point (s) a ), of the cited Decree
Law.
Article 42.
Language and Transparency of information
All information and conditions to be provided by the payment service provider to the
user of payment services under this decree-law must:
a) Be transmitted in Portuguese language, except when it is agreed between the
parts the use of another language;
b) Be set out in easily understandable and clear-minded terms and
intelligible; and
c) Allow for easy reading by an average visual acuity reader, in cases where
are provided through paper support or other lasting support.
Article 43.
Charges of information
1-The provider of the payment service shall not charge to the user of the service of
payment of the charges with the provision of information provided for in this Chapter.
2-The provider and the user of the payment service may agree on the collection of
charges for the provision of additional or more frequent information or by the transmission
by communication routes other than those specified in the framework contract, provided that the
provision or transmission occurs at the request of the user of the payment service.
3-In cases provided for in paragraph 2, charges shall be appropriate and correspond to the
costs actually borne by the provider of the payment service.
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Article 44.
Burden of proof with regard to the information requirements
It is up to the payment service provider to prove that it has complied with the requirements of
information set out in this title.
Article 45.
Derogation from information requirements for low-value payment instruments and
electronic currency
1-In the case of payment instruments which, in accordance with the framework contract, say
respect only to individual payment transactions that do not exceed 30 EUR or that
have an expenditure limit of 150 EUR or allow to store funds whose amount
never exceed 150 EUR:
a) By way of derogation from the provisions of Articles 52, 53 and 57, the provider of the service of
payment is only obliged to provide the payer with information about the main
characteristics of the service, including the way the payment instrument
may be used, the liability, charges invoiced and other information
significant required to make an informed decision, as well as the referral
of the sources where, in an easily accessible manner, any
other information and conditions specified in Article 53;
b) It may be agreed that, by way of derogation from the provisions of Article 55, the provider of
payment services does not have to propose any changes in the conditions of the
framework contract in the terms provided for in Article 55 (1);
c) It may be agreed that, by way of derogation from the provisions of Articles 58 and 59, after the
execution of a payment transaction:
i) The payment service provider provides or makes available only one
reference that allows the user of the service to identify the operation of
payment, their amount and the respective charges or, in the case of several
payment transactions of the same genus carried out at the same
69
beneficiary, a unique reference of identification of the set of these
payment transactions, respective amount and total charges;
ii) The provider of the payment service is not obliged to provide or
make available the information referred to in the previous sub-paragraph if the
payment instrument for use in an anonymous form or if, by
any other reason, the provider of the payment service is not
technically in conditions of doing so; however, the provider of the service of
payment must give the payer the possibility to check the amount
of the accumulated funds.
SECTION II
Payment transactions of an isolated character
Article 46.
Scope of application
1-This chapter applies to non-payment transactions of an isolated character not
covered by a framework contract.
2-Should a payment order for a payment transaction of an isolated character
is transmitted through a payment instrument covered by a contract-
frame, the payment service provider is not obliged to provide or make available
information that has already been or should come to be communicated to the user of the service of
payment under the terms of a framework contract with another service provider of
payment.
Article 47.
Pre-contractual general information relating to insulated payment transactions
1-The payment service provider shall communicate the information and conditions
specified in Article 48 to the user of payment services before this stay
bound by a contract or proposal to provide payment service of a character
isolated.
70
2-The provider of the payment service shall inform the user of the service of
payment of which, at the request of this, the provision of the said information and conditions
shall be carried out on paper support or any other lasting support.
3-If the payment service contract of an isolated character has been concluded, the
request from the user of the payment service, through a means of communication to
distance that does not allow the payment service provider to respect the provisions of the
n. ºs 1 and 2, the latter must comply with the obligations established there immediately after the
execution of the payment transaction.
4-The obligations set out in paragraphs 1 and 2 may be fulfilled upon delivery of
a copy of the draft contract for the provision of payment service of character
isolated or from the draft order of payment that includes the information and conditions
specified in Article 48 para.
Article 48.
Information and conditions relating to insulated payment transactions
1-Payment service providers must provide or make available to the
user of the payment service the following information and conditions:
a) The precise information or the unique identifier to be provided by the user of the
payment service so that a payment order can be executed from
proper form;
b) The maximum period of implementation applicable to the provision of the payment service;
c) All charges to be paid by the user to the provider of the payment service and,
where appropriate, the discrimination of the respective amounts;
d) Where appropriate, the effective exchange rate or the reference exchange rate to
apply to the payment transaction.
2-Where applicable, any other relevant information and conditions specified
in Article 53 shall be made available to the user of the payment service of a
easily accessible form.
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Article 49.
Information to be provided to the payer upon receipt of the order of payment
Immediately upon receipt of the order of payment, the service provider of
payment of the payer must provide to this or put at its disposal, in the terms of the article
42. and of Article 47 (2) the following information:
a) A reference that allows the payer to identify the payment transaction and, if
for the case of this, information relating to the beneficiary;
b) The amount of the payment transaction in the currency used in the order of
payment;
c) The amount of possible charges from the payment transaction that the payer
must pay and, where appropriate, the respective discrimination;
d) Where applicable, the exchange rate applied to the payment transaction by the
payment service provider of the payer, or a reference to the same, if
is different from the rate resulting from point (d) of Article 48 (1), as well as the
amount of the payment transaction after such monetary conversion; and
e) The date of receipt of the order of payment.
Article 50.
Information to be provided to the beneficiary after the execution of the payment transaction
Immediately after the execution of the payment transaction, the service provider of
payment of the beneficiary shall provide to the latter or put at its disposal, pursuant to paragraph 1
of Article 47, the following information:
a) The reference that allows the beneficiary to identify the payment transaction and, if
for the case of this, the payer and possible information transmitted in the context of
payment operation;
b) The amount transferred in the currency in which the funds are made available to the
beneficiary;
72
c) The amount of possible charges from the payment transaction that the beneficiary
must pay and, where appropriate, the respective discrimination;
d) Where applicable, the exchange rate applied to the payment transaction by the
payment service provider of the beneficiary, as well as the amount of the
payment operation before such monetary conversion; and
e) The date-value of the credit.
SECTION III
Contracts-Table
Article 51.
Scope of application
This Section shall apply to the payment transactions covered by a contract-
frame.
Article 52.
Pre-contractual general information
1-The payment service provider shall communicate the information and conditions
specified in Article 53 to the user of payment services before this stay
bound by a framework contract or by a proposed framework contract.
2-A communication shall be carried out on paper support or in any other support
lasting.
3-If the payment framework contract has been concluded, at the request of the user of the
payment service, through a means of distance communication that does not allow the
payment service provider comply with the provisions of paragraph 1, the latter shall comply
the obligations set out in paragraph 1 immediately after the conclusion of the framework contract.
4-The obligations set out in paragraph 1 may also be fulfilled upon delivery
of a copy of the draft framework contract that includes the information and conditions
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specified in Article 53 para.
Article 53.
Information and conditions
They shall be provided to the user of the payment service the following information and
conditions:
a) As for the payment service provider:
i) The name of the provider of the payment service, the geographical address of the
your central administration and, where applicable, the geographical address of your
agent or branch in Portugal, as well as any other addresses,
particularly the e-mail address, useful for the communication
with the provider of the payment service; and
ii) The elements of information concerning the supervisory authorities
competent and for the registration provided for in Article 20 or any other registration
relevant public of authorization of the payment service provider,
as well as the registration number or other form of equivalent identification
in that register;
b) As for the payment service:
i) A description of the main characteristics of the payment service to
provide;
ii) The precise information or the unique identifier to be provided by the user
of the payment service in order that a payment order may be
conveniently executed;
iii) The form and procedures of communicating consent to
carry out a payment transaction and for the withdrawal of that consent
in the terms of Articles 65 and 77;
iv) The reference to the moment of receipt of a payment order, in the
meaning of Article 75, and, if it exists, at the time-limit established by the
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payment service provider;
v) The maximum period of implementation applicable to the provision of the services of
payment; and
vi) Whether there is a possibility of entering into an agreement on spending limits for
the use of the payment instrument, in accordance with Article 1 (1)
66.
c) As for charges, interest and exchange rates:
i) All charges to be paid by the user of the payment service to the
their respective provider and, where appropriate, to the discrimination of the respective
amounts;
ii) Where appropriate, the interest and exchange rates to be applied or, should they be
used interest or reference exchange rates, the method of calculating the
effective interest, as well as the relevant date and index or the basis for
determination of this interest rate or reference exchange rate; and
iii) If this is agreed, the immediate implementation of changes in the interest rate or of
reference exchange and the information requirements for changes
in accordance with Article 55 (4);
d) As for the communication:
i) Where appropriate, the means of communication, including the requirements
technical of the user equipment of the payment service,
agreed between the parties for the transmission of the information provided for in the
this Directive;
ii) The forms of provision or provision of the information in the terms
of this Directive and the respective frequency;
iii) The language or languages in which the framework contract should be concluded and in
that should be processed for communications during the contractual relationship; and
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iv) The user's right of the payment service to receive the terms of the
framework contract and the information and conditions pursuant to Rule 54;
e) The preventive and rectifying measures:
i) Where appropriate, a description of the measures that the user of the service of
payment must take to preserve the security of the instruments of
payment, as well as how to notify the provider of the service of
payment for the purposes of the ( b) of Article 67 (1);
ii) If this is agreed upon, the conditions in which the provider of the service of
payment can reserve the right to block an instrument from
payment under Article 66;
iii) The responsibility of the payer pursuant to Art. 72, specifically
the information relating to the amount concerned;
iv) The forms and timeframe of which the user of the payment service has
to notify the provider of the payment service of any transaction
not authorised or improperly executed, pursuant to Rule 69,
as well as the liability of the payment service provider by
unauthorised transactions, pursuant to Article 71;
v) The liability of the payment service provider by the execution
of the payment transactions pursuant to Art. 86 and 87; and
vi) The conditions for reimbursement under Articles 73 and 74;
f) As for the changes and the complaint of the framework contract:
i) If this is agreed, the information on which the user is deemed to be
payment service accepted the change of the conditions under the terms of the
article 55, unless you have notified the provider of the service of
payment that you do not accept it prior to the date of entry into force of the
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proposal;
ii) The duration of the contract; and
iii) The right that assists the user of the payment service of denouncing the
framework contract and possible agreements relating to the complaint, pursuant to the
n Article 55 (3) and Article 56;
g) As for the repair:
i) Any contractual clause relating to the legislation applicable to the contract-
framework and the competent court; and
ii) The procedures of complaint and extrajudicial repair at the disposal of the
user of the payment service, pursuant to Articles 92 and 93.
Article 54.
Access to information and conditions of the framework contract
In the course of the contractual relationship, the user of the payment service shall have the right to
receive, at your request and at any time, the terms of the framework contract, as well as
the information and conditions specified in Article 53, in support of paper or in
any other lasting support.
Article 55.
Change of the conditions of the framework contract
1-Any change to the framework contract or the specified information and conditions
in Article 53 shall be proposed by the provider of the payment service, in the terms
provided for in Article 52, and no later than two months prior to the proposed date for its
application.
2-If this is applicable under the sub-paragraph i) of the paragraph f) of Article 53, the provider of the
payment service shall inform the user of the payment service of which
considers that the latter has accepted such changes if he has not notified the provider of the
payment service of which you do not accept them prior to the proposed date for entry into force
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of the same.
3-In the case referred to in the preceding paragraph, the provider of the payment service shall
also specify that the user of the payment service has the right to denounce the
contract-framework, immediately and without charge, prior to the proposed date for application
of the changes.
4-Changes in interest or exchange rates can be applied immediately and without
pre-notice, provided that such right has been agreed in the framework contract and changes if
are based on the interest or reference exchange rates agreed upon in the terms of subparagraphs
ii) and iii) of the paragraph c) of Article 53 para.
5-The user of payment services shall be informed the most quickly
possible of any change in the interest rate in the terms set out in Article 52, unless
the parties have agreed on a periodicity or in specific forms for the provision
or provision of the information.
6-Changes in interest or exchange rates that are more favourable to users
of the payment service can be applied without notice.
7-Changes in interest or exchange rates used in payment transactions
must be applied and calculated in a neutral manner, in order not to establish discrimination
among the users of the payment service.
Article 56.
Denunciation of the framework contract
1-The user of the payment service may denounce the framework contract in any
moment saved if the parties have agreed in a period of notice, which they will not be able to
be more than one month.
2-When the user of payment services is a consumer or a
microenterprise, the complaint of the framework contract is always free of charge for the
user.
3-Out of the cases provided for in the preceding paragraph, the complaint of contracts-frame of
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indefinite duration or celebrated for a fixed period of more than 12 months will be exempted
of charges for the user of payment services after the end of the period 12
months. In all other cases, the charges of the complaint shall be appropriate and
match the supported costs.
4-If this is agreed upon in the framework contract, the payment service provider may
report a framework contract of undetermined duration upon a notice of, by the
less, two months, in the terms provided for in Article 52.
5-In cases of change to the framework contract or the information and conditions
specified in Article 53, the user of the payment service shall have the right to
report the framework contract immediately and without charge before the proposed date for the
application of the amendments.
6-The charges regularly invoiced by the provision of payment services are
only due by the user of payment services in the part proportional to the period
elapsed until the date of resolution of the contract; if such charges are paid
beforehand, they must be restituted in the proportional part to the period not yet
elapsed.
Article 57.
Information to be provided prior to the execution of individual payment transactions
In the case of an individual payment transaction carried out under a contract-
framework and initiated by the payer, the payment service provider shall provide, the
order of the payer and in respect of such operation, the following specific information:
a) Maximum period of implementation of the individual payment transaction;
b) Charges that the payer must bear and, where applicable, discrimination of the
respective amounts.
Article 58.
Information to be provided to the payer on individual payment transactions
1-After the amount of an individual payment transaction has been debited in the
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account of the payer, or, if the payer does not use an account, upon receipt of the order
of payment, the payer payment service provider of the payer provides this, without
unjustified delay and in the terms provided for in Article 52, the following information:
a) A reference that allows the payer to identify each payment transaction
and, where appropriate, information relating to the beneficiary;
b) The amount of the payment transaction in the currency in which it is debited in the account of the
ordering or in the currency used in the order of payment;
c) The amount of possible charges of the payment transaction and, where applicable, the
respectivisation, or the interest the payer should pay;
d) Where applicable, the exchange rate applied to the payment transaction by the
payment service provider of the payer, as well as the amount of the
payment operation after such monetary conversion; and
e) The date-value of the debit or the date of receipt of the order of payment.
2-The framework contract may include a clause stipulating that the information referred to
in the preceding paragraph shall be provided or made available periodically at least
once a month and second an agreed form that allows the payer to store and
reproduce information unchanged.
3-The framework contract shall include a stipulation stipulating that, by express request
of the user of payment services, the payment service provider gets
thank you for free of charge the information referred to in paragraph 1 on paper support
once a month.
Article 59.
Information to be provided to the beneficiary about individual payment transactions
1-After the execution of an individual payment transaction, the service provider of
payment of the beneficiary provides to this, without unwarranted delay and in the terms provided for in the
article 52, the following information:
a) A reference that allows the beneficiary to identify the payment transaction and,
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where appropriate, the payer, and possible information transmitted in the context of
payment operation;
b) The amount of the payment transaction in the currency in which it is credited to the account of the
beneficiary;
c) The amount of possible charges of the payment transaction and, where applicable, the
respective discrimination, or the interest that the beneficiary should pay;
d) Where applicable, the exchange rate applied to the payment transaction by the
payment service provider of the beneficiary, as well as the amount of the
payment operation before such monetary conversion; and
e) The date-value of the credit.
2-The framework contract may include a clause stipulating that the information referred to
in paragraph 1 shall be provided or made available periodically at least once by
month and second an agreed form that allows the beneficiary to store and reproduce
information unchanged.
3-The framework contract shall include a stipulation stipulating that, by express request
of the user of payment services, the payment service provider shall provide
free of charge the information referred to in paragraph 1, on paper support, once a month.
SECTION IV
Common provisions
Article 60.
Currency and monetary conversion
1-Payments are made in the currency agreed upon between the parties.
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2-Should a monetary conversion service be proposed prior to the start of the operation of
payment through automatic payment terminal or by the beneficiary, the party that
proposes the monetary conversion service to the payer must provide the following
information:
a) Charges that the payer must bear;
b) Exchange rate to be applied for the purposes of the conversion into the payment transaction.
Article 61.
Information on additional charges or reductions
1-Should the beneficiary cover charges or propose a reduction by the use of a
given instrument of payment, it shall inform the payer of this fact before the beginning of the
payment operation.
2-Should the provider of the payment service or a third party cover charges for
use of a given payment instrument, must inform the user of that fact
of the payment service prior to the start of the payment transaction.
CHAPTER II
Rights and obligations with respect to the provision and use of payment services
SECTION I
Common provisions
Article 62.
Scope of application
1-The provisions of this Chapter apply to microenterprises in the same way as
to consumers.
2-When the user of the payment service is not a consumer, the parties
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may deviate from the application, in whole or in part, from the provisions of Article 63 (3), para.
3 of Article 65 and in Articles 70, 72, 73, 77, and 86, and 86, and, well, agree on a
deadline other than that set out in Article 69 para.
3-This Chapter applies without prejudice to the provisions of the Decree-Law No. 359/91, of
September 21, as amended by Decree-Law No. 101/2000 of June 2; the other legislation
concerning the conditions for the granting of credit to consumption is applicable in so far as
contains provisions not provided for in this chapter.
Article 63.
Charges applicable
1-The payer and the beneficiary may only be required for charges invoiced by the
respective payment service provider.
2-In the event that the payment transaction involves the realization of conversion operations
monetary, the payer and the beneficiary may agree on a division of charges
different from the one set in the previous number.
3-The provider of the payment service may not charge the user of the service of
payment of charges inherent in the performance of your reporting obligations or
of the corrective and preventive measures provided for in this Chapter.
4-Without prejudice to the provisions of the preceding paragraph, the provider and the user of the service of
payment may agree on the charging of charges in the following situations:
a) Notification of justified refusal to carry out a payment order, in the
terms provided for in Article 76 (2);
b) Revocation of a payment order, pursuant to Article 5 (5)
77.
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c) Recovery of funds under the terms set out in Article 85 (3)
5-In cases provided for in the preceding paragraph, charges shall be appropriate and
correspond to the costs actually borne by the provider of the service of
payment.
6-The payment service provider shall not prevent the beneficiary from,
regarding the use of a particular payment instrument,:
a) Offer a reduction by its use; or,
b) Require a charge for their use, save where the beneficiary
impose on the payer the use of a specific payment instrument or
when there is a legal provision that limits this right in the direction of encouraging the
competition or promote the use of effective payment instruments.
Article 64.
Derogation for low-value payment instruments and electronic money
1-In the case of payment instruments which, in accordance with the framework contract, say
respect only to individual payment transactions that do not exceed 30 EUR or that
have an expenditure limit of 150 EUR or allow to store funds whose amount
never exceed 150 EUR, payment service providers may agree with the
respective users in which:
a) Do not apply to ( b ) of Article 67 (1), the points c) and e) of paragraph 1 of the
Article 68 and paragraphs 4 and 5 of Article 72, should the payment instrument not
allow to block such operations nor prevent their subsequent use;
b) Articles 70 and 71 and paragraphs 1 and 2 of Article 72 should not apply.
payment instrument is used in an anonymous form or the provider of the
payment service may not, for other intrinsic reasons to the instrument of
payment, provide proof that the payment transaction has been authorized;
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c) By way of derogation from paragraphs 2 a to 4 of Article 76, the provider of the service of
payment shall not be obliged to notify the user of that service of the refusal of a
payment order, if the non-execution if it can deprehend from the context;
d) By way of derogation from Article 77, the payer shall not be able to revoke the order
of payment after you have communicated this order or your consent to the
beneficiary to carry out the payment transaction;
e) By way of derogation from the provisions of Articles 80 and 81, other time limits apply
execution.
2-Articles 71 and 72 are also applicable to electronic money within the meaning of paragraph 1
of Article 4 of the Decree-Law No 42/2002 of March 2.
SECÇAO II
Authorization of payment transactions
Article 65.
Consent and withdrawal of consent
1-A payment transaction or a set of payment transactions only if
consider it to be authorized if the payer consents to its execution.
2-The consent must be given in advance to the implementation of the transaction, unless it is
agreed between the payer and the respective provider of the payment service that the
even be provided at a later time.
3-The consent referred to in the preceding paragraphs shall be given in the agreed form
between the payer and the respective provider of the payment service; in the event of
failure to comply with the agreed form, the payment transaction is deemed not to have been
authorized.
4-Consent may be withdrawn by the payer at any time, but never
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after the moment of irrevocability established pursuant to Art. 77; the
consent given to the execution of a set of payment transactions may
also be withdrawn, hence resulting that any subsequent payment transaction
should be considered unauthorized.
5-The procedures for communication and withdrawal of consent are agreed upon between
the payer and the provider of the payment service.
Article 66.
Limits on the use of the payment instrument
1-In cases where a specific instrument of payment is used for the purpose of
communication of the consent, the payer and the respective provider of the service of
payment may agree on expense limits for the payment transactions
performed through the payment instrument in question.
2-Mediating stipulation expressed in the framework contract, the provider of services of
payment may reserve the right to block an instrument of payment by
objectively substantiated grounds, which relate to:
a) The security of the payment instrument;
b) The suspicion of unauthorized or fraudulent use of that instrument or,
c) The significant increase in the risk of the payer not being able to comply with its
payment responsibilities, if it deals with a payment instrument
with an associated line of credit.
3-In cases referred to in the preceding paragraph, the payment service provider shall
inform the payer of the blocking of the payment instrument and the respective
justification for the agreed form, if possible before blocking the instrument from
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payment or, at the latest, immediately after the blocking, unless such information does not
can be provided for objectively substantiated security reasons or is prohibited
by other applicable legal provisions.
4-As soon as they cease to check the grounds that led to the blockade, the provider of the
payment service shall unlock the payment instrument or replace it with
a new one.
Article 67.
Obligations of the user of payment services associated with the instruments of
payment
1-The user of payment services with a right to use an instrument of
payment has the following obligations:
a) Use the payment instrument in accordance with the conditions governing your
emission and use; and
b) Communicate without unwarranted delays to the payment service provider or the
entity designated by the latter, as soon as they have knowledge, the loss,
theft, abusive appropriation or any unauthorized use of the instrument
of payment.
2-For the purposes of the a) of the previous number, the user of payment services
shall take all reasonable measures, in particular when receiving an instrument of
payment, to preserve the effectiveness of your personalized security devices.
Article 68.
Obligations of the payment service provider associated with the instruments of
payment
1-The payment service provider that issues a payment instrument has the
following obligations:
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a) Ensure that the personalized security devices of the instrument of
payment shall only be accessible to the user of payment services which has
right to use the said instrument, without prejudice to the obligations of the user
of the payment service established in the previous article;
b) Refrain from sending unsolicited payment instruments, save when a
instrument of this type already delivered to the user of payment services should be
replaced;
c) Ensure availability at the full time of appropriate means to enable the
user of payment services to proceed to the notification provided for in paragraph b) from the
n. 1 of the preceding Article or request the unlock in accordance with paragraph 4 of the article
66.
d) The provider of the payment service shall provide the user with the service of
payment, at the request of this, the means necessary to make proof, during 18
months after the notification provided for in paragraph b ) of paragraph 1 of the previous article, of which
has carried out such notification; and
e) Prevent any use of the instrument of payment as soon as the notification
provided for in paragraph b) of paragraph 1 of the preceding Article has been carried out.
2-The risk of sending to the payer of a payment instrument or the respective
personalized security devices runs on the account of the service provider of
payment.
Article 69.
Communication of unauthorized payment operations or
incorrectly executed and right of rectification
1-The user of the payment service shall have the right to obtain rectification by the
payment service provider if, after having become aware of an operation of
unauthorised or incorrectly executed payment likely to originate a
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complaint, in particular under Articles 86 and 87, communicate the fact to the
respective provider of the payment service without unjustified delay and within a
term no longer than 13 months from the date of the debit,
2-Where, in respect of the payment transaction in question, the service provider
of payment has not provided or made available the information to which you are obliged
in the terms of Chapter I of this Title III, the term limitation shall not apply
in the previous number.
Article 70.
Proof of authentication and execution of payment transactions
1-Should a user of negue payment services have authorized an operation of
payment executed or alegue that the transaction was not correctly carried out, it is incumbent on
to the respective provider of the payment service provide proof that the operation of
payment has been authenticated, duly registered and accounted for and which has not been affected
by technical failure or any other deficiency.
2-Should a user of negue payment services have authorized an operation of
payment executed, the use of the payment instrument registered by the provider
of payment services, on its own, is not necessarily sufficient to prove that the
payment operation was authorized by the payer or that the latter acted in a manner
fraudulent or failed to comply, deliberately or by gross negligence, one or more of the
its obligations under Article 67 para.
Article 71.
Liability of the payment service provider by non-payment transactions
authorized
1-Without prejudice to the provisions of Article 69, in relation to a payment transaction not
authorized, the payer's payment service provider shall reimburse it
immediately of the amount of the unauthorised payment transaction and, where applicable,
repose the debited payment account in the situation where it would be if the operation of
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unauthorized payment had not been executed.
2-Whenever the payer is not immediately reimbursed by the respective
payment service provider pursuant to the previous number, are due interest
moratoriums, counted day by day from the date on which the user of payment services
there is denied to have authorized the payment transaction executed, up to the date of the refund
effective, calculated at the statutory rate, fixed pursuant to the Civil Code, plus 10 points
percentage, without prejudice to the right to the supplementary compensation to which there is a place.
Article 72.
Liability of the payer for unauthorized payment transactions
1-In the case of unauthorized payment transactions resulting from loss, theft or the
abusive appropriation of payment instrument with breach of confidentiality of the
personalized security devices imputable to the payer, the payer supports the
losses relating to such operations within the limit of the available balance or the line of
credit associated with the account or the payment instrument, up to a maximum of 150 EUR.
2-The payer supports all losses resulting from payment operations not
authorised if those are due to fraudulent performance or default
deliberated by one or more of the obligations laid down in Article 67, in which case they are not
applicable limits as referred to in paragraph 1 of this Article.
3-Havendo gross negligence of the payer, this bears the losses resulting from
payment operations not authorized up to the limit of the available balance or the line of
credit associated with the account or the payment instrument, albeit higher than 150
EUR, depending on the nature of the personalized security devices of the
instrument of payment and the circumstances of its loss, theft or appropriation
abusive.
4-After having proceeded with the notification referred to in point (a) b) of Article 67 (1), the
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payer does not bear any financial consequences resulting from the use of a
payment instrument lost, stolen or abusively appropriate, save in case
of fraudulent acting.
5-If the payment service provider does not provide appropriate means that
allow for notification, at any time, of the loss, theft or abusive appropriation of
a payment instrument, as required by the point c) of Article 68 (1), the
payer is not obliged to bear the financial consequences resulting from the
use of that payment instrument, save in the case of having acted in a manner
fraudulent.
Article 73.
Reimbursement of payment transactions initiated by the beneficiary or through this
1-The payer is entitled to the refund, on the part of the respective provider of the service of
payment, of an authorised payment transaction initiated by the beneficiary or through
of this which has already been performed, if the following conditions are met:
a) The authorisation does not specify the exact amount of the payment transaction in the
moment in which permission has been granted; and
b) The amount of the payment transaction exceeds the amount that the payer
could reasonably be expected on the basis of your previous expense profile, in the
terms of its framework contract and in the specific circumstances of the case.
2-A The request of the payment service provider, the payer provides the elements
factuals regarding the conditions specified in the preceding paragraph.
3-The reimbursement referred to in paragraph 1 corresponds to the full amount of the operation of
payment executed.
4-In relation to direct debits, the payer and the respective provider of services of
payment may agree on the framework contract that the payer is entitled to the refund
on the part of the respective payment service provider even if they do not find themselves
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met the conditions for redemption set out in paragraph 1.
5-However, for the purposes of the b) of paragraph 1, the payer shall not be based on reasons
related to the exchange rate if the reference exchange rate has been applied
agreed with the respective payment service provider under the terms of the ( d) from the
n Article 48 (1) and (i) b ) of Article 53 (3)
6-It can be agreed upon in the framework contract between the payer and the respective provider of
payment services that the payer is not entitled to a refund if it has
communicated directly to the provider of the payment service your consent to the
execution of the payment transaction and, where applicable, that the said provider or the
beneficiary have provided or made available to the payer information about the future
payment transaction by the agreed form, at least four weeks prior to the date of
execution.
Article 74.
Applications for reimbursement of payment transactions initiated by the beneficiary or through
of this
1-The payer is entitled to submit the request for reimbursement, referred to in Article 73, of
an authorised payment transaction, initiated by the beneficiary or through this, during
a period of eight weeks from the date on which the funds have been debited.
2-Within ten working days following receipt of a request for a refund, the
payment service provider reimburses the full amount of the operation of
payment or presents a justification for refusing the refund, indicating the
organisms for which the payer may refer the matter under the Articles 92 and
93. if you do not accept the justification presented.
3-The right of the payment service provider to refuse the refund pursuant to the
previous paragraph shall not apply in the case referred to in Article 73 (4).
SECTION III
Execution of payment transactions
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Subsection I
Orders for payment and amounts transferred
Article 75.
Receipt of payment orders
1-The time of receipt of the payment order must coincide with the moment at
that the order of payment transmitted directly by the payer or indirectly
by the beneficiary or through this is received by the payment service provider of the
ordering.
2-If the time of receipt is not a business day for the service provider of
payment of the payer, it is deemed that the payment order has been received on the business day
next.
3-The payment service provider may set a time limit at the end
of the business day beyond which the payment orders received are considered as
having been received on the following business day.
4-The user of the payment service issuing the order of payment and the respective
payment service provider may agree that the order if it has been received:
a) On a specified date;
b) Elapsed a certain period; or
c) On the date on which the payer places funds at the disposal of the respective provider
of payment services.
5-If the date agreed upon in the terms of the preceding paragraph is not a working day for the provider
of the payment service, it is considered that the payment order has been received on the business day
next.
Article 76.
Refusal of payment orders
1-In the event that all the conditions laid down in the framework contract are met
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entered into with the payer, the payer's payment service provider cannot
refuse to carry out an authorized payment order, regardless of whether it was
issued by the payer or by the beneficiary or through it, unless lawful provision in
contrary.
2-Not being met all the conditions laid down in the framework contract concluded with
the payer, the possible refusal of a payment order and, if possible, the reasons
inherent in the same and the procedure to be followed to rectify any factual errors that
have led to such refusal must be notified, unless lawful provision otherwise,
to the user of the payment service.
3-The payment service provider shall provide or make available the notification by the
agreed form and as soon as possible within the time limits set out in Article 80.
4-Mediant express clause of the framework contract, the provider of the payment service
may charge the charges inherent in the notification in the event that the refusal is objectively
justified.
5-For the purposes of Articles 80, 86 and 87, a payment order whose implementation has
been refused is deemed not received.
Article 77.
Irrevocable character of a payment order
1-Unless the provisions of the following numbers, a payment order cannot be
revoked by the user of payment services upon receipt by the provider of
ordering services of the payer.
2-Should a payment transaction be initiated by the beneficiary or through this, the
payer cannot revoke the payment order after having communicated to the
beneficiary this order or your consent to the execution of the payment transaction.
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3-However, in the case of direct debit and without prejudice to the rights of reimbursement, the
payer can revoke the order of payment by the end of the business day before the day
agreed to the debit of funds.
4-In the case referred to in Article 75 (4) and (5), the user of payment services
may revoke a payment order by the end of the business day prior to the agreed date.
5-Decorrified the time limits specified in paragraphs 1 a to 4, the order of payment may only be
repealed if this has been agreed upon between the user and the respective service provider
of payment.
6-In cases of the payment transactions indicated in paragraphs 2 and 3, in addition to the agreement
referred to in paragraph 5, the agreement of the beneficiary is also necessary.
7-Mediant express clause of the framework contract, the provider of the payment service
may charge charges for the revocation.
Article 78.
Amounts transferred and received
1-The payer's payment service provider, the provider of services of
payment of the beneficiary and the possible intermediaries of both providers of
payment services are required to transfer the full amount of the operation of
payment and to refrain from deducting any charges from the transferred amount.
2-However, the beneficiary and the respective payment service provider may
agree that the latter deducts its own charges from the subject amount of
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transfer before crediting it to the beneficiary.
3-In the case referred to in the preceding paragraph, the full amount of the payment transaction and
charges shall be indicated separately in the information to be given to the beneficiary.
4-If the transferred amount is deducted any charges not agreed upon in the
terms of paragraph 2:
a) The payer of the payer of the payer shall ensure that the
beneficiary receives the full amount of the payment transaction initiated by the
ordering;
b) The payee's payment service provider shall ensure that this
receives the full amount of the transaction, in the operations initiated by the beneficiary
or through it.
Subsection II
Term of execution and date-value
Article 79.
Scope of application
1-A present subsection applies to payment transactions in euro.
2-A present subsection is still applicable to the remaining payment transactions covered
by this decree-law, unless otherwise agreed between the user and the respective
payment service provider; the parties may not, however, ward off the application
of Article 84 para.
3-When the user and the respective payment service provider agree
within a longer period than those set out in Article 80 for the payment transactions
intra-Community, that time limit may not be more than four working days from the
moment of receipt pursuant to Rule 75.
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Article 80.
Payment transactions for a payment account
1-The payer's payment service provider shall ensure that, after the
moment of receipt of the payment order pursuant to Art. 75, the amount
object of the transaction is credited to the account of the payment service provider of the
beneficiary until the end of the first working day following.
2-In the case of cross-border payment transactions, until January 1, 2012, the
payer and the respective payment service provider may convene a
longer term, which may not exceed three working days.
3-The time limits referred to in the preceding paragraphs may be extended by one more day
useful in the case of the payment transactions issued on paper support.
4-The payee's payment service provider shall set the date-value and
make available the amount of the payment transaction in the payment account of the
beneficiary after receiving the funds pursuant to Art. 84 para.
5-The payee's payment service provider shall transmit the orders of
payment issued by the beneficiary or through this to the provider of services of
payment of the payer within the time limits agreed between the beneficiary and the respective
payment service provider, so as to allow for settlement, in relation to the
direct debits, on the agreed execution date.
Article 81.
Non-payment account payment of the beneficiary to the service provider of
payment
In case the beneficiary does not have a payment account with the provider of
payment services, the funds are placed at the disposal of the beneficiary by the
payment service provider who receives the funds on account of the beneficiary in the
deadline set out in Article 80 para.
Article 82.
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Cash deposits in a payment account
1-Should a consumer carry out a cash deposit in a payment account
along with the provider of that payment service and in the currency of that payment account, the
payment service provider shall ensure that the amount is made available
immediately after the moment of receipt of the funds and with date-value coincident with
that moment.
2-Should the user of the payment service not be a consumer, the amount shall
be made available and be assigned date-value at the latest on the working day subsequent to that of the
receipt of the funds.
Article 83.
National payment transactions
1-In internal transfers and in the absence of stipulation to the contrary, the amounts in
money must be credited to the beneficiary's account on the day itself, if the transfer if
carry out between seated accounts at the same payment service provider, the
date value and the date of making available that of the moment of credit.
2-Internal transfers between seated payment accounts in providers of
different payment services, the provisions of Article 80 (2) shall not apply.
Article 84.
Date-value and availability of funds
1-A date-value attributed to the credit in the payee's payment account shall be, in the
maximum, the working day in which the amount of the payment transaction is credited to the account of the
payment service provider of the beneficiary.
2-The payee's payment service provider shall ensure that the amount of the
payment operation stay at the disposal of the beneficiary immediately after it has been
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credited to the payment account of the payee's payment service provider.
3-A date-value of the debit in the payer's payment account may not be prior to the
moment in which the amount of the payment transaction is debited in that account of
payment.
Subsection III
Responsibility
Article 85.
Incorrect single identifiers
1-If a payment order is executed in accordance with the identifier
single, it is considered that it was executed correctly with regard to the beneficiary
specified in the single identifier.
2-If the unique identifier provided by the user of payment services is
incorrect, the payment service provider is not responsible, in the terms of the article
86., by the non-execution or by the poor execution of the payment transaction.
3-However, the payer's payment service provider shall make efforts
reasonable to recover the funds involved in the payment transaction, and may charge
to the user of the payment service charges for such recovery, should this be
agreed in the framework contract.
4-Notwithstanding the user of payment services can provide information
additional to those specified in the ( a) of Article 48 (1) or (b) of paragraph 2 of the
article 53, the payment service provider is only responsible for the execution of the
payment operations in accordance with the unique identifier provided by the
user of payment services.
Article 86.
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Failure to perform or deficient execution of payment orders issued by the payer
1-Should a payment order be issued by the payer, the responsibility for the
correct execution of the payment transaction before the payer is up to the respective
payment service provider, without prejudice to Article 69, paragraphs 2 and 3 of the article
85 and of Article 90 para.
2-If the payer's payment service provider can prove to the payer and, if
Where appropriate, to the payment service provider of the beneficiary that the latter
received the amount of the payment transaction pursuant to Rule 80 (1), the
liability for the correct execution of the payment transaction before the beneficiary
it will fit the payee's payment service provider.
3-Should the liability fall to the payer's payment service provider in the
terms of paragraph 1, this shall reimburse the payer, without unwarranted delays, of the amount
of the payment transaction not executed or incorrectly executed and, if applicable
of this, repose of the debited payment account in the situation where it would be if it did not
occurred the incorrect execution of the payment transaction.
4-Should the liability fall to the provider of the payee's payment service
in accordance with paragraph 2, the latter shall immediately credit the corresponding amount in the
account of payment of the beneficiary or to put at the disposal of the beneficiary the amount of the
payment operation.
5-In the case of an unexecuted or incorrectly executed payment transaction
where the order of payment is issued by the payer, the respective provider of
payment services must, regardless of the liability incurred by force
of paragraphs 1 and 2 and, if requested by it, immediately make efforts to trace the
payment operation and notify the payer of the obtained results.
6-In addition to the liability provided for in the preceding paragraphs, the providers of
payment services are accountable to the users of the respective services of
payment for any charges the liability of which falls to them and for any interest to
which are subject to users of the payment service as a result of not
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execution or incorrect execution of the payment transaction.
Article 87.
Failure to perform or deficient execution of payment orders issued by the beneficiary
or through this
1-Should a payment order be issued by the beneficiary or through this, it is up to the
their respective payment service provider, without prejudice to the provisions of Article 69,
in paragraphs 2 and 3 of Article 85 and in Article 90, the liability to the beneficiary by the
correct transmission of the order of payment to the payment service provider of the
payer, pursuant to Article 80 (5)
2-In cases of the previous number, the payment service provider of the beneficiary
must immediately relay the order of payment in question to the provider of
ordering services of the payer.
3-Notwithstanding the provisions of the preceding paragraph, it shall be up to the provider of
payment of the beneficiary, without prejudice to the provisions of Article 69, paragraphs 2 and 3 of the article
85. and in Article 90, the liability to the beneficiary for the processing of the transaction
of payment pursuant to its obligations under Article 84.
4-Should the payment service provider of the beneficiary be responsible in the terms
of the previous number, shall ensure that the amount of the payment transaction is to the
disposition of the beneficiary immediately after having been credited to the account of the provider of
payment services of the beneficiary.
5-In the case of an unexecuted or incorrectly executed payment transaction
whose responsibility does not fall to the payee's payment service provider in the
terms of the previous figures, it is up to the payer's payment service provider
the responsibility before the payer.
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6-In the case referred to in the preceding paragraph, the payment service provider of the
payer shall, where appropriate and without unwarranted delay, reimburse the payer of the
amount of payment transaction not performed or incorrectly performed and refor
the payment account debited in the situation in which it would be if it had not occurred at
incorrect execution of the payment transaction.
7-In the case of an unexecuted or incorrectly executed payment transaction
where the order of payment is issued by the beneficiary or through this, the respective
payment service provider must, regardless of the liability
incurred by virtue of this article and if so requested, please immediately
efforts to track the payment transaction and notify the beneficiary of the results
obtained.
8-In addition to the liability provided for in the preceding paragraphs, the providers of
payment services are accountable to the users of the respective services of
payment for any charges the liability of which falls to them and for any interest to
which are subject to users of the payment service as a result of not
execution or incorrect execution of the payment transaction.
Article 88.
Supplementary compensation
The provisions of Articles 85 and 87 shall be without prejudice to the right to supplementary compensation in the
terms of the legislation applicable to the contract.
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Article 89.
Right of return
1-In case the liability of a payment service provider pursuant to the
articles 86 and 87 is attributable to another payment service provider or to a
intermediate, such a payment service provider or intermediary shall indemnify the
first payment service provider for any losses incurred or amounts
paid by virtue of Articles 86 and 87.
2-Additional compensation may be fixed, in the terms of agreements concluded
between providers of payment services or between these and possible intermediaries and the
legislation applicable to such agreements.
Article 90.
Force major
The liability laid down in Articles 79 to 89 shall not apply in the event of circumstances
abnormal and unpredictable alheys at the will of the party invoking these circumstances, if the
respective consequences had not been able to be avoided in spite of all the efforts
developed, or if the payment service provider is bound by others
legal obligations, particularly those related to the prevention of the bleaching of
capitals and financing of terrorism.
SECTION IV
Protection of data
Article 91.
Protection of data
1-The processing of personal data by the payment systems and by the
providers of payment services only to the extent necessary to safeguard the
prevention, research and detection of fraud in respect of payments.
2-The processing of personal data referred to in the preceding paragraph shall be carried out
in the terms of Law No. 67/98 of October 26.
Title IV
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OUT-OF-COURT SETTLEMENT OF DISPUTES AND PROCEDURE OF
COMPLAINT
Article 92.
Provision of means of out-of-court settlement of disputes
1-Without prejudice to access by users of payment services to the judicial means
competent, payment service providers must offer the respective
users of payment services access to effective and appropriate extrajudicial means
of claim and repair of litigation of equal or lower value to the almanship of the courts of
first instance, relating to the rights and obligations set out in Title III of the
present decree-law.
2-A offer referred to in the previous number effective through the accession of the providers of
payment services to at least two entities authorized to carry out arbitrations to the
shelter from the Decree-Law No. 425/86 of December 27 or to two entities registered in the
voluntary registration system of procedures of extrajudicial resolution of conflicts of
consumption established by Decree-Law No. 146/99 of May 4.
3-The entities chosen by the payment service providers must observe the
principles applicable to bodies responsible for the extrajudicial resolution of conflicts
of consumption set out in the Recommendation of the Commission of the European Communities n.
98 /257/CE, of March 30, 1998.
4-Service providers may, alternatively or in addition to the offer of the
means previously referred to, submit the disputes mentioned in paragraph 1 to the intervention of
a provider of the analogous customer or entity, designated according to the principles
formulated in Commission Recommendation No 98 /257/CE of the Commission of the European Communities,
of March 30, 1998.
5-Service providers must still ensure that the resolution of disputes
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transboundary is forwarded to signatory entity of the Protocol of accession to the network
FIN-NET of cooperation in the out-of-court settlement of cross-border disputes in the sector
financial, and may choose to fall on one of the entities mentioned in the figures
previous.
6-Service providers shall communicate to the Bank of Portugal the entities to which they hajam
adhered to in accordance with paragraph 2, within 15 days after accession.
Article 93.
Complaint to the Bank of Portugal
1-Without prejudice to access to the competent judicial means, users of services of
payment, or their representative associations, and the remaining interested can
to present directly to the Bank of Portugal complaints founded on non-compliance with
standards of Title III of this decree-law by the providers of services of
payment.
2-In its reply, the Bank of Portugal informs the complainants of the existence of means of
out-of-court settlement of disputes, whenever the complaints cannot be resolved
through the measures that would legally fit you or the respective non-couber matter
in your legal competencies.
3-The claims provided for in this article shall apply, with the necessary adaptations, the
regime of the complaints of the customers of the credit institutions established in Article 77-
The one of the RGICSF.
Title V
COUNTER-ORDINANCE REGIME
Article 94.
Offences
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1-Are punishable with fine of € 3000 a € 1500000 or € 1000 a € 500000, consonant
it is applied to the collective ente or the natural person, the following offences:
a) The provision of payment services through agents without having to
been given compliance with the provisions of Article 18 (2);
b) Failure to comply with the conditions set out in Article 19 as regards the
commission to third parties of relief operational functions;
c) The non-constitution of commercial society which has as its exclusive object to
provision of payment services, when determined by the Bank of Portugal
pursuant to Art. 34 (2);
d) The failure to comply with the file duty provided for in Article 36;
e) The violation of the rules on amendment and denunciation of framework contracts provided for in
article 55, 6 and 7 of Article 55 and paragraph 3 of Article 56;
f) The realization of payments in diverse currency from that which was agreed upon between the
parties, in violation of the provisions of Article 60 (1);
g) The absence of unlocking or replacement of a payment instrument,
in violation of the provisions of Article 66 (4);
h) The refusal to carry out payment orders, in violation of the provisions of paragraph 1 of the
article 76;
i) The failure to meet deadlines for implementation, dates-value and dates of provision
provided for in Articles 79 to 84;
j) The failure to, by providers of payment services, the relative duties
to the provision of effective and appropriate extrajudicial means of complaint and
redress of disputes, in the terms provided for in Article 92;
l) The conducts provided for and punished in points (a), (b), (d), (f), and (i) of the art. 210. of the
RGICSF, when practiced in the framework of the activity of the institutions of
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payment.
2-A breach of duty of information on additional charges or reductions provided for in
article 61, when such a duty rests on the beneficiary or third party other than the provider
of the payment service, is punishable under Article 21 of the Decree-Law No. 57/2008,
of March 26, competing with the Food and Economic Security Authority (ASAE) to
instruction of the corresponding counterordinance processes.
Article 95.
Especially serious offences
They are punishable with fine of € 10000 a € 5000000 or € 4000 a € 2000000, consonant
it is applied to the collective ente or the natural person, the offences referred to below:
a) The provision of accounting information to the Bank of Portugal with
failure to comply with the provisions of Article 33;
b) The violation of the rules on information and communications requirements provided for in us
articles 42, 45, 47 to 50, 52 to 55, 57 to 61, in Article 66 (3), paragraphs 2
and 3 of Article 76 (3), Article 86 (5) and Article 7 (7) of the article
87.
c) The violation of the rules on the collection of charges laid down in Article 43, para. the 2,
4 and 5 of Article 56, in Article 63 (4), Article 77 (7),
in paragraphs 1 and 2 of Article 78 and in Article 85 (3);
d) The carrying out of payment transactions not authorized by the payer, by
non-existence or withdrawal of your consent for the execution of them, in
violation of the provisions of Article 65;
e) The default of obligations associated with the payment instruments
provided for in Article 68;
f) The failure to meet the obligations of repayment and payment provided for in paragraph 1 of the
article 71, in Article 73 (1), in paragraphs 2 and 3 of Article 74, paragraphs 3 and 4 of the
article 86 and in paragraphs 4 and 6 of Article 87;
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g) The violation of the limiting standards of the liability of the payer provided for in the
article 72;
h) The default of the obligation to pay the full amount to the beneficiary
provided for in Article 78 (4);
i) The failure to meet the obligations of recovery of funds and tracking of the
payment transactions provided for in Article 85 (3), in Article 86 (5) and
in Article 87 (7);
j) The violations of mandatory precepts contained in regulations issued by the
Bank of Portugal under the paragraph c) of Article 6 (1), not provided for in the
this article or in the following article;
l) The unauthorised practice, by any individuals or entities, of the activity of
provision of payment services;
m) The exercise, by the payment institutions, of activities not included in your
legal object or the provision of payment services not included in the respective
authorization;
n) The granting of credit, by the payment institutions, out of the conditions and the
limits established under Article 9;
o) The use, by the payment institutions, of the funds from the
payment users for distinct purposes of the execution of services of
payment;
p) The violation, by the payment institutions, of the duty to use the accounts of
payment that they are holders exclusively for the conduct of operations of
payment;
q) The realization of statutory amendments provided for in Article 15, when not
precedents of authorization of the Bank of Portugal;
r) The failure to comply with the prudential standards set out in Article 29 of Article 30,
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without prejudice to paragraph 3 of the same Article, and of Article 31, without prejudice to the paragraph 3 of the
even article, when it results or may result in serious injury to the balance
financial of the entity concerned;
s) Failure to comply with the requirements for the protection of the funds set out in Article 32,
including non-compliance with determinations issued by the Bank of Portugal to the
n Article 6 of that article;
t) The ducts provided for and punished in the sub- c ), e) , f ), g) , l) , m ), the ), p), q ) and r) of the article
211. of the RGICSF, when practiced in the framework of the activity of the institutions of
payment.
Article 96.
Ancillary sanctions
1-Contract with the fines, they can be applied to the responsible for any of the
counter-ordinances provided for in Articles 94 and 95 the following ancillary sanctions, in
function of the seriousness of the offence and the fault of the agent:
a) Publication of the condemnatory decision;
b) Seizure and loss of the object of the offence, including the economic product of this,
with observance of the provisions of Articles 22 to 26 of the Decree-Law No 433/82,
of October 27;
c) Suspension of the exercise of the right to vote allotted to the partners of the institutions of
payment, for a period of 1 a to 10 years;
d) Inhibition of the exercise of social positions and of functions of administration, direction,
management or managerial in credit institutions, financial societies and institutions
of payment, for a period of 6 months to 3 years, in the case of offences
provided for in Article 94, or 1 a to 10 years, in the case of offences provided for in the
article 95;
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e) Interdiction, in whole or in part, for a period up to three years, of the exercise of
activity of provision of the payment services listed in Article 4 para.
2-A publication referred to in paragraph (a) of the preceding paragraph shall be made:
a) In the case of decisions of the Bank of Portugal that have become already final, in the
page of the Bank of Portugal on the Internet and, at the expense of the offender, in a newspaper of
wide diffusion in the locality of the registered office or permanent establishment of the
infractor or, if this is a natural person, in the locality of his / her residence;
b) In the case of decisions of the Bank of Portugal that have been the subject of
judicial challenge, on the page of the Bank of Portugal on the Internet, with mention
express of the non-final character of the sentencing decision by the interposition of
resource of the same.
Article 97.
Aggravation of the fine
Without prejudice to the provisions of the paragraph b) of paragraph 1 of the preceding Article, if double the benefit
economic exceeds the maximum limit of the applicable fine, this is high to that value.
Article 98.
Attempt and neglect
The attempt and neglect are always punishable, in that case being reduced to half the
minimum and maximum limits of the fines provided for in Articles 94 and 95.
Article 99.
Applicable regime
In everything that is not provided for in the preceding Articles, the scheme shall apply
relating to the illicit of mere social ordering established in Articles 201 and following of the
RGICSF, with the necessary adaptations.
Title VI
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Supplementary, transitional and final provisions
Article 100.
Direct debits
The scheme established by this decree-law shall not affect the validity of the authorizations of
debit into account existing at the date of its entry into force, worth the same as
express consent of the payer for the execution of direct debits
Article 101.
Adaptation of contracts in force
1-The constant regime of this decree-law shall be without prejudice to the validity of contracts in
vigour relating to the payment services regulated therein, sensing them since soon
applicable the provisions of this Decree-Law that show more favorable to the
users of payment services.
2-Without prejudice to the provisions of the preceding paragraph, the service providers of
payment must adapt the contracts for payment services which
currently presage to users of payment services who are their customers
to the provisions set out in this decree-law, as of the date of its entry into law
vigour and within the maximum period of six months.
3-Payment service providers must refer to users of services
of payments that are your customers a full copy of the contractual conditions
that result from the adaptations made in accordance with paragraph 1, by the way that there is
been agreed upon with them or, in case there is no agreement, by letter, in which it is
evidenced the essentials of the adaptations made, inform themselves under what conditions the
said adaptations if they have for tacitly accepted by the users, in the terms
defined in Article 102, and whether to identify the form the user should use for
communicate their possible non-acceptance of the adaptations made.
Article 102.
Consent
The contractual conditions proposed by the payment service providers in the
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terms of Article 100, consider to be tacitly accepted by users of services of
payment if:
a) these do not manifest their opposition in the two months following the reception of the
alluded to conditions; or,
b) these request to the payment service provider any new
services under the adapted contracts, condone the make elapsed by the
less one month after the communication of these adaptations.
Article 103.
Charges
Providers of payment services will not be able to debit service users
of payment any amounts:
a) by the adjustment of contracts in accordance with the provisions of Article 100;
b) by the communication carried out in accordance with paragraph 2 of the same article; and
c) by the termination of the contracts arising from the express opposition of the customers, without
injury of other obligations constituted under the rescinded contract.
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ANNEX
The calculation of the requirements of own funds referred to in Article 31 of the present
decree-law shall be carried out in accordance with one of the methods described in this Annex.
I-Method of fixed general expenses
1. Payment institutions must own upstream own funds at least
equivalent to 10% of the value of its fixed general expenses of the previous year.
2. The Bank of Portugal may adjust this requirement in cases where a change occurs
significant in the activity of the payment institution since the previous year.
3. As long as the payment institution has not completed one year of activity (in the
date of calculation), and from the day on which this has started, the requirement of own funds
must be 10% of the value of fixed general expenses set for the first year in its
Plan of forecasting activities. The Bank of Portugal may require an adjustment of that
plan, particularly in cases where significant divergence has occurred
face to the predictions.
II-Method of the volume of payments
1. Payment institutions must own upstream own funds at least
equivalent to the sum of the following elements, multiplied by a factor of scale k
defined below:
i) 4.0% of the part of the volume of payments up to EUR 5 million;
more
ii) 2.5% of the part of the volume of payments above EUR 5 million and up to 10 million
of euros;
more
iii) 1% of the part of the volume of payments above EUR 10 million and up to 100 million
of euros;
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more
iv) 0.5% of the part of the volume of payments above EUR 100 million and up to 250
million euros;
more
v) 0.25% of the part of the volume of payments above EUR 250 million.
The k-scale factor is from:
a) 0.5 should the payment institution only pay the payment service indicated in the
point (6) of Article 4 (4)
b) 0.8 case the payment institution shall pay the payment service indicated in paragraph [7]
of Article 4;
c) 1.0 should the payment institution pay any of the payment services
listed in paragraphs [1] to [5] of Article 4.
2. The 'volume of payments' corresponds to one twelfth of the total amount of the
payment transactions executed by the payment institution in the previous year.
As long as the payment institution has not completed one year of activity (on the date
of the calculation), and from the day on which this commencement, the volume of payments shall have
on the basis of the amount of payment volume forecast for the first year in your plan of
predictional activities. The Bank of Portugal may require an adjustment of that plan,
particularly in cases where there has been a significant divergence in the face of
predictions.
III-Method of the relevant indicator
1. Payment institutions must own upstream own funds at least
equivalent to the sum of the following elements, multiplied by a factor of scale k
defined below:
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i) 10% of the part of the relevant indicator up to EUR 2.5 million,
ii) 8% of the relevant indicator part above EUR 2.5 million and up to 5 million
euros,
iii) 6% of the relevant indicator part above EUR 5 million and up to 25 million
euros,
iv) 3% of the relevant indicator part above EUR 25 million and up to 50 million
euros,
v) 1.5% of the part of the relevant indicator above EUR 50 million.
The k-scale factor is from:
a) 0.5 should the payment institution only pay the payment service indicated in the
article 4 (6);
b) 0.8 case the payment institution shall pay the payment service indicated in paragraph 7
of Article 4;
c) 1.0 should the payment institution pay any of the payment services
listed in Article 4 (1 a) (5).
2. The 'relevant indicator' consists of the sum of the following elements:
-Interest revenue,
-Charges with interest,
-Commissions received, and
-Other operating income.
The defined elements are based on the accounting categories relating to the account of
gains and losses from payment institutions. Each of the elements must be included
in the sum with the respective positive or negative sign.
Extraordinary or irregular recipes should not be considered in the calculation of the
relevant indicator. Commissions paid for services provided by third parties ( outsourcing )
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can contribute to reducing the relevant indicator if they are incurred by a
institution subject to the supervision of the Bank of Portugal by virtue of the provisions of the present
Decree-law.
The relevant indicator is calculated on the basis of the annual observations reported at the end of the
financial year immediately preceding.
When no audited data are available, estimates can be used.
3. Without prejudice to the provisions of paragraph 1, for the payment institutions subject to the
method of the relevant indicator your own funds may not be less than 80% of the
average of the relevant indicator for the last three financial years.