Key Benefits:
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Proposal for Law No 71 /XII
Exhibition of Motives
This proposed law aims to enable the Government to regulate access to the activity of the
electronic money institutions, the provision of electronic money issuance services
and the respect for prudential supervision in the scope of transposition into the internal legal order
of Directive No 2009 /110/CE, of the European Parliament and of the Council, of September 16
of 2009, concerning access to the activity of electronic money institutions, to their
exercise and its prudential supervision.
The amendments that are intended to be introduced to the covered in this proposed law of
legislative authorization is essentially focused on the introduction of the appropriate adaptations
in the legal regime that regulates access to the activity of payment institutions and the
provision of payment services, approved in annex to Decree-Law No. 317/2009, of
October 30 (RJIPSP) and well in the applicable related legal regimes.
With the present legislative initiative, it is intended to enable the Government to regulate the scheme of
access to the activity of electronic money institutions, by instituting standards that
establish the uniqueness institution for the exercise of this activity, the control of the
idoneity, professional experience, availability and absence of conflicts of interest, the
corrective intervention, provisional administration, dissolution and settlement of the institutions, the
typification as a crime of violation of the duty of secrecy of the criminal conducts practiced
within the scope of this activity, as well as the definition of the legal consequences of the practice of
illicit of mere social ordering relating to offences relating to the activity of issuance
of electronic money, including the level of the fines, ancillary sanctions and other rules
procedural.
It was promoted to hear from the Bank of Portugal and the National Board of Consumption.
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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.
Object of the legislative authorization
1-It is granted to the Government legislative authorization to, within the framework of the transposition to the
internal legal order of Directive No 2009 /110/CE, of the European Parliament and of the
Council, of September 16, 2009 on access to the activity of the institutions of
electronic money, its exercise and prudential supervision, regulate access to
activity of these institutions and the provision of electronic money issuance services.
2-A The regulations provided for in the preceding paragraph are effected by the introduction of the
appropriate changes to the legal regime that regulates access to the activity of institutions
of payment and the provision of payment services, approved in annex to the Decree-
Law No. 317/2009 of October 30 (RJIPSP).
3-In concretization of the defined in the preceding paragraph, is the Government authorized to:
a) Regulate access to electronic money issuance activity and institute the scheme
of exclusive with regard to the entities that exercise that activity;
b) Institute a regime concerning the control of the suitability of the holders of
qualified participations in the electronic money institutions;
c) Institute a regime concerning the control of idoneity, professional experience,
availability and absence of conflicts of interest of the members of the organs of
administration and surveillance of electronic money institutions;
d) Establish a corrective intervention regime and an administration regime
provisional of the electronic money institutions;
e) Enshrine a regime of dissolution and settlement of currency institutions
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electronics;
f) To establish that the secret breach pipelines practiced within the framework of
emitting activity of electronic money and the exercise of powers of
supervision, are punishable under Article 195 of the Criminal Code, so
equivalent to that provided for in the General Regime of Credit Institutions and
Financial Societies (RGICSF);
g) Defining the legal consequences of the practice of illicit of mere social ordering
relating to the infringements of legal and regulatory standards relating to the
emitting activity of electronic money, at the level:
i) Of the situations likely to generate counterordinational procedure;
ii) Of the fines, defining the respective amounts and the ancillary sanctions;
iii) Of the rules of a substantive and procedural nature applicable to the
corresponding counterordinance processes.
4-The Government is still allowed to establish for the payment institutions and to
Electronic money institutions a scheme covering the possibility of application
of mechanisms for corrective intervention and appointment of an administration
provisional.
5-For realization of the measures provided for in this Law, and without prejudice to the provisions of the
n. 2, is the Government authorized to make the necessary changes in the following
diplomas:
a) Decree-Law No. 298/92 of December 31 approving the General Regime of the
Credit Institutions and Financial Societies;
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b) Law No. 25/2008 of June 5 laying down measures of a preventive nature and
repressive of combating the laundering of advantages of illicit provenance and
to the financing of terrorism, by transposing into the internal legal order the
Directives n. 2005 to /60/CE, of the European Parliament and of the Council, of 26 of
October, and 2006 /70/CE, of the Commission of August 1 on the prevention of the
use of the financial system and activities and occupations especially
designated for the purposes of money laundering and financing of the
terrorism, proceeds to the second amendment to Law No. 52/2003 of August 22, and
repeals Law No 11/2004 of March 27;
c) Decree-Law No. 156/2005 of September 15, which sets out the mandatory
of making available the book of claims to all suppliers of goods or
providers of services that have contact with the general public;
d) Decree-Law No. 95/2006 of May 29 laying down the legal regime
applicable to distance contracts relating to financial services concluded
with consumers, transposing to the national legal order the Directive
n. 2002 /65/CE, of the European Parliament and of the Council of September 23,
on the distance marketing of financial services provided to
consumers;
e) Law No. 5/2002 of January 11, which sets out measures to combat the
organised crime and economic-finance and proceeds to the second amendment to the
Law No. 36/94 of September 29, amended by Law No 90/99 of July 10, and
fourth amendment to Decree-Law No. 325/95 of December 2, amended by the Law
n. 65/98 of September 2 by the Decree-Law No. 275-A/2000 of 9 of
November, and by Law No. 104/2001, of August 25;
f) Decree-Law No. 3/94 of January 11 amending the legal regime of agencies
of foreign exchange.
Article 2.
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Sense and extent of legislative authorization as to access to the activity of
issuance of electronic money
1-In the use of the legislative authorization conferred by the ( a ) of paragraph 3 of the previous article,
can the Government:
a) Reserve the exercise of electronic money issuance activity to the following
categories of legal persons:
i) The credit institutions with registered office in Portugal whose object is to understand the
exercise of that activity, in accordance with legal standards and
applicable regulations;
ii) The electronic money institutions with registered office in Portugal;
iii) Credit institutions with registered offices outside Portugal legally
qualified to perform activity in Portugal;
iv) The electronic money institutions with registered office in another member state
of the European Union, in the terms set out in Directive No 2009 /110/CE,
of the European Parliament and of the Council of September 16, 2009;
v) The branches of electronic money institutions with headquarters outside the
European Union, in the terms set out in Directive No 2009 /110/CE of the
European Parliament and of the Council of September 16, 2009;
vi) The State, the Autonomous Regions and the services and bodies of the
direct and indirect administration of the State, when acting in the exercise of
public powers of authority;
vii) The ECB, the Bank of Portugal and the other national central banks,
when they do not act in the quality of monetary authorities or in the
exercise of other public powers of authority.
b) Determine the application to the electronic currency institutions of the envisaged scheme
in Article 126 of the RGICSF, with adaptations, so that when there is
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founded suspicions that an unauthorized entity exerts or exerted some
activity reserved for electronic money institutions, the Bank of Portugal
may apply for the respective dissolution and settlement;
c) Defining the assumptions on which the constitution of currency institutions depends
electronic, including:
i) The adoption of an anonymous form of society or by quotas;
ii) The minimum capital;
iii) The presentation of suitable conditions for an exercise are and prudent of the
activity, particularly in the matter of government of society, management of
risks, as well as internal control mechanisms, including those if
they are intended to comply with the obligations in relation to the fight against the
money laundering and the financing of terrorism.
d) Establish the necessary elements for the instruction of the application for authorization,
including:
i) A project of a society contract or amendment to the contract of
Society, from where a reference is expressed to the services of
payment that the electronic money institution proposes to provide;
ii) A program of activities, geographical deployment, organic structure
and human means, technicians and materials that will be used;
iii) A declaration of commitment that, in the act of the constitution, and
as a condition of it, if it will show itself deposited in an institution of
credit the amount of the minimum capital required under the terms currently
provided for the payment institutions;
iv) The indication of the identity and the respective supporting elements of the
persons who detain, directly or indirectly, shareholdings
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qualified, as well as the size of the respective shareholdings and
proof of your suitability, taking into account the need to guarantee a
sound and prudent management of the institution;
v) A description of the procedures aimed at ensuring protection
of the funds of the users of the payment services and the
electronic money carriers;
vi) The supporting elements of the existence of solid devices in
matter of government of society, including an organizational structure
clear, with well-defined lines of responsibility, transparent and
coherent, 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 procedures
solid administrative and accounting, owing to the devices,
procedures and mechanisms referred to be complete and proportional to the
nature, at the level and complexity of the activities of the institution of
payment;
vii) The supporting elements of the existence of control mechanisms
internal to comply with the obligations in relation to the fight against
money laundering and the financing of terrorism,
including the provisions relating to the information on the payer that
accompany the transfers of funds;
viii) The description of the way in which the structures of the
applicant institution, specifically, where appropriate, description of the
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intended use of the agents and branches and a description of the
provisions in respect of provision of services by third parties,
how of the respective share in national payment system or
international;
ix) The supporting elements of the identity of directors and people
responsible for the management of the payment institution or the institution
of electronic money and, where appropriate, of the persons responsible for the
management of the activities of payment and currency issuance services
electronic of the applicant institution, as well as proof that they are
elderly people and possess the knowledge and experience
suitable for performing payment services or issuing currency
electronics;
x) The identity of the official reviewers of accounts and of the societies of
statutory auditors, within the meaning of Directive No 2006 /43/CE, of the
European Parliament and of the Council of May 17;
xi) The address of the central administration of the institution.
e) Establish that electronic money institutions should apply the funds
of which they have so as to ensure, at all time, appropriate levels of
liquidity and creditworthiness.
f) Create a register of electronic money institutions with the Bank of
Portugal, from which the start of electronic money issuance activity is started
by the said institutions, which shall also cover the respective agents and
branches;
2-In concretization of the legislative authorization referred to in this Article, it shall be the
Government authorized to determine the implementation of the regime concerning the authorisation and the
registration of credit institutions enshrined in the General Regime of Institutions of
Credit and Financial Societies (RGICSF), approved by the Decree-Law No. 298/92, of
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December 31, when this is shown to be appropriate.
Article 3.
Sense and extent of legislative authorization as to the control of the suitability of the
holders of qualified participations of the electronic money institutions
1-In the use of the legislative authorization conferred by the ( b ) of Article 1 (3), may the
Government:
a) To provide that the detention, increase or decrease of qualified shareholdings
in an electronic money institution depends on prior communication to the
Bank of Portugal;
b) Establishing the thresholds of the capital or voting rights in the institution
participatory or any other facts that make communication mandatory
prior to the Bank of Portugal of the acts involving increase or decrease of
a qualified participation;
c) Confer competence on the Bank of Portugal to officiously declare the
qualified character of any participation in the capital or in the voting rights
of an electronic money institution;
d) Establish that it must be communicated to the Bank of Portugal, by
determined, the celebration of the acts upon which they are realized the
acquisition projects, increase or decrease in qualified participation,
subject to prior communication;
e) Predict that if a reduction of a participation to a level occurs
less than 10% of the capital or voting rights of the participating institution, the
Bank of Portugal communicates to its holder, at a specified time, if
considers that the resulting participation has a qualified character;
f) To provide that the acquisition or increase of the qualified participation in a
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electronic money institution depends on the demonstration, before the Bank of
Portugal, of which the proposed acquirer brings together the conditions that guarantee a
sound and prudent management of the institution, as well as regulate the terms, criteria and
the effects of the decision of the supervisory entity;
g) Establish that, in the case of the acquisition or the increase in shareholdings
qualified to occur in disrespect of the communication obligation, at present
prior to the decision of the Bank of Portugal or in disrespect of a decision of
opposition to the project of acquisition or increase of participation communicated,
may the Bank of Portugal determine the inhibition of the voting rights inherent in the
qualified participation, either in the institution of electronic money or in
entity that detains, directly or indirectly, voting rights at the institution of
participative electronic currency, to the extent necessary and appropriate to prevent the
influence on the management that was obtained through the act of which it resulted in
acquisition or increase of the said participation;
h) To provide that, in the situation described in the preceding paragraph and in the terms laid down therein, the
Bank of Portugal may determine in which the measure the inhibition covers the
voting rights exerted by the institution of participating electronic money
other institutions with which to find themselves in relation to control or
domain, direct or indirect.
2-In realization of the legislative authorization referred to in this Article, it is still the
Government authorized to determine the implementation of the scheme on the control of
qualified participations in credit institutions instituted by the RGICSF at
electronic money institutions, when this is shown to be appropriate.
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Article 4.
Sense and extent of the legislative authorization as to the control regime of the
idoneity, professional experience, availability and absence of conflicts of
interests of the members of the administration and supervisory bodies of the
electronic money institutions
1-In the use of the legislative authorization conferred by the ( c ) of Article 1 (3), may the
Government:
a) To establish that the exercise of functions of member of the governing bodies and
of surveillance of electronic money institutions depends on an appreciation
prior, by the Bank of Portugal, of the idoneity, professional experience,
availability and absence of conflicts of interest of those concerned, in such a way
offer sound and prudent management guarantees as well as regulate the terms and the
effects of the decision of the Bank of Portugal, providing for the purpose of the criteria to be
into account in the appreciation of the Bank of Portugal;
b) Establish the possibility for the Bank of Portugal to take appropriate measures
when they cease to be meeting the legal requirements or when the accumulation of
posts if it shows that it is likely to impair the exercise of duties;
c) Create a register of the members of the administration and supervisory bodies of the
electronic money institutions of which they depend on the start of the functions;
d) Predicting that the control of idoneity both can be exercised at the
designation as during the performance of duties, by staying the Government authorized to
to establish the means necessary for the purpose, such as to provide for the possibility of
cancellation of the registration in the event that the Bank of Portugal takes notice of
super-convenient facts likely to call into question the suitability, the experience, the
availability or exemption of the person concerned.
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2-In realization of the legislative authorization referred to in this Article, it is still the
Government authorized to determine the implementation of the regime concerning the control of the
members of the administrative and supervisory bodies established by the RGICSF, to the
electronic money institutions.
Article 5.
Sense and extent of legislative authorization as to the intervention regime
corrective
1-In the use of the legislative authorization conferred by the ( d ) of Article 1 (3), may the
Government to institute a corrective intervention regime, with a view to safeguarding the
financial soundness of payment and electronic money institutions, interests
of the client's respects or the stability of the financial system.
2-It is the Government authorized to confer competence on the Bank of Portugal so that,
when the payment and electronic money institutions do not comply, or are in
risk of failing to comply with legal or regulatory standards that discipline their activity,
carry out the application of one or more of the following corrective intervention measures,
taking into account the principles of suitability and proportionality:
a) Determine the presentation, by the institution concerned, of a plan of
restructuring, and the Bank of Portugal may establish conditions for its
approval, specifically the increase in social capital, the reduction of capital
social or the alienation of social or other assets of the institution;
b) Suspend, or impose the replacement, of one or more members of the organs of
administration or oversight of the institution, being these obligated to
provide all information and to provide the necessary collaboration to you
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by the Bank of Portugal;
c) Designate, by the maximum term of one year, extended to the maximum of two
years, a supervisory commission or a single tax, remunerated by the
institution and endowed with the powers and duties conferred by law and bylaws
to the supervisory body, which is suspended by the period of activity of that
single supervisory or tax commission;
d) To impose the replacement of the official reviewer of accounts or the society of reviewers
officers of accounts to whom it is up to issue the legal certification of accounts, in cases in
that the institution has adopted one of the models of administration and
surveillance provided for in the Code of Commercial Societies in which the reviewer
account officer or the society of official auditors do not integrate the
respective supervisory bodies;
e) Determine restrictions on the granting of credit and the application of funds in
certain species of assets, in particular in respect of operations
carried out with subsidiaries, with entity that is the parent company of the institution or
with branches of this, as well as with entities based in jurisdictions offshore;
f) Enforce the constitution of special provisions;
g) Determine the prohibition or limitation of the distribution of dividends;
h) Subjecting certain operations or certain acts to the prior approval of the Bank of
Portugal;
i) Impose additional reporting;
j) Determine the presentation, by the institution concerned, of a plan of amendment
of the conditions of the debt, for the purpose of trading with the respective creditors;
k) Determine the achievement of an audit of the whole or the part of the activity of the
Institution by independent entity designated by the Bank of Portugal, the
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expensing of the institution;
l) Require at all time the convocation of the general meeting of the institution and
intervene in it with the submission of proposals;
m) Establish that, at the same time with the designation of an administration
provisional, the Bank of Portugal may temporarily dispense the
punctual fulfillment of obligations previously contracted by the institutions,
by the maximum period of one year.
3-It is the Government authorized to establish that, if they are not approved by the shareholders
or by the administrative bodies of the institutions the conditions determined by the Bank
of Portugal with respect to the restructuring plan, or if it is not met by the
same institutions the restructuring plan approved by the Bank of Portugal, this
may appoint a provisional administration or revoke the authorization of the institutions;
4-For the purpose of the authorisation referred to in this Article, it shall be the Government
authorized to determine the application of the scheme established by the RGICSF in respect of
to corrective intervention measures applicable to credit institutions, to the institutions of
payment and electronic money
Article 6.
Sense and extent of legislative authorization as to the administration regime
provisional
1-In the use of the legislative authorization conferred by the ( d ) of Article 1 (3), stands the
Government authorized to, with a view to safeguarding the financial soundness of the
payment institutions and electronic money institutions, of the interests of the
respective customers or the stability of the financial system, confer with the Bank of
Portugal competences to determine the suspension of the governing body and
appoint a provisional administration, when you check any of the following situations
set out, which is likely to pose a serious risk to the financial balance or to
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solvability of the institution or to constitute a threat to the stability of the system
financial:
a) Serious or repeated violation of legal or regulatory standards that disciplined
the activity of the institution;
b) The Bank of Portugal has met reasons for suspecting the existence of
serious irregularities in the management of the institution;
c) The Bank of Portugal has met reasons for suspecting the capacity of the
shareholders or the members of the administration bodies of the institution to
to ensure sound and prudent management or to recover financially from
institution;
d) The Bank of Portugal has met reasons for suspecting the existence of
other irregularities that put in serious risk the interests of the respective
customers and creditors.
2-It is the Government authorized to determine that the members of the provisional administration
are remunerated by the institution and have the powers and duties conferred by the law and the
statutes and, still, the following:
a) Vetting the deliberations of the remaining social bodies of the institution;
b) Revoke decisions previously adopted by the board of directors of the
institution;
c) Convene the general assembly of the institution and determine the order of the day;
d) Promote a detailed assessment of the equity and financial situation of the
institution, in accordance with the assumptions set out by the Bank of Portugal;
e) Present to the Bank of Portugal proposals for the financial recovery of the
institution;
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f) Diligenar in the sense of the immediate correction of possible irregularities
previously committed by the social organs of the institution or by some of the
your members;
g) Adopt measures that understand convenient in the interest of customers and the
institution;
h) Promote the agreement between shareholders and lenders of the institution relatively to
measures that allow for its financial recovery, notably the
renegotiation of the debt conditions, the conversion of debt into social capital, the
reduction of social capital for uptake of damage, the increase in capital
social or the alienation of part of the activity to another authorized institution for the
your exercise;
i ) Keep the Bank of Portugal informed about its activity and on the management of the
institution, particularly through the drafting of reports with the
periodicity defined by this;
j ) Observe the generic guidelines and strategic objectives defined by the
Bank of Portugal with a view to the performance of its functions;
k ) Provide all the information and collaboration required by the Bank of Portugal
about any subjects related to your activity or with the
institution.
3-It shall be the Government authorized to establish that, simultaneously with the designation of a
provisional administration, the Bank of Portugal may designate a commission of
supervision or a single tax, which are remunerated by the institutions and have powers and
duties conferred by law and by the statutes to the supervisory body, which lies
suspended for the period of activity of that single supervisory or tax commission.
4-It shall be the Government authorized to establish that, simultaneously with the designation of a
provisional administration, the Bank of Portugal may temporarily dispense the
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punctual fulfillment of obligations previously contracted by the institution, by the
maximum term of one year.
5-It shall be the Government authorized to determine that the members of the governing bodies and
of suspended supervision pursuant to the provisions of paragraphs 1 and 3 are obliged to
provide all the information and to provide the collaboration requested by the Bank of
Portugal or by the new members of the administration and supervisory bodies.
6-The Government shall be allowed to establish that the Bank of Portugal may subject it to its
prior approval certain acts of the members of the provisional administration.
7-The Government may establish that, while it last-after the interim administration, stay
suspended, for the maximum period of one year, all executions, including tax ones,
against the institution, or to cover their assets, without exception of those with an end
the collection of credits with preference or privilege, and are interrupted the deadlines of
prescription or lapse objectionable by the institution.
8-For the purpose of the authorisation referred to in this Article, it shall be the Government
authorized to determine the application of the scheme established by the RGICSF in respect of
to the provisional administration of credit institutions, the payment institutions and the
electronic currency.
Article 7.
Sense and extension of the legislative authorization as to the dissolution and the
liquidation
1-In the use of the legislative authorization conferred by the ( and ) of Article 1 (2), may the
Government:
a) To determine that the electronic money institutions that have per object
exclusive the electronic money issuance activity, or still the activity of
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provision of payment services, dissolve only upon revocation
of the respective authorisation by the Bank of Portugal or by deliberation of the partners,
by having the Bank of Portugal, in the use of its competences, to ensure that the
customers and too many creditors are treated equally, according to the
class of creditors to which they belong;
b) Define the fundamentals of revocation and expiry of the authorization of the
electronic money institutions;
c) Determine, in equivalent terms to those currently defined in the RJIPSP for the
payment institutions, that the dissolution and the settlement of the institutions of
electronic money that have for the sole purpose of the emission activity of
electronic money, or still the activity of provision of payment services,
shall be subject to the regime set out in Chapter II of Decree-Law No. 199/2006,
of October 25, as amended by the Decree-Law No. 31-A/2012 of February 10,
on the settlement of credit institutions and financial companies, with the
necessary adaptations;
d) Determine that the electronic money institutions that exercise
simultaneously various professional activities of those referred to in the preceding paragraph
become subject to the provisions of the Insolvency and Recovery Code of
Companies, in equivalent terms to those currently set in the RJIPSP for the
payment institutions in the same circumstances, particularly as to the
faculty of the Bank of Portugal apply for the declaration of insolvency,
follow up with the process and the activity of the insolvency administrator, well
as to the expiry of the effects of the authorization for the exercise of the activity by
force of the judicial declaration of insolvency.
2-In concretization of the legislative authorization referred to in this Article, it shall be the
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Government authorized to determine the implementation of the scheme instituted by the RGICSF in
expiry matter and revocation of the authorization of credit institutions, as well as
for Decree-Law No. 199/2006 of October 25, as amended by the Decree-Law
n 31-A/2012 of February 10 on the liquidation of credit institutions and
financial companies, the electronic money institutions.
Article 8.
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) f ) of Article 1 (3), stands the
Government authorized to establish that the secret violation ducts, practiced in the
scope of the issuance of electronic money and the exercise of powers of
supervision over electronic money issuers, are punishable under the terms of the article
195. of the Criminal Code, in an equivalent manner to what is currently envisaged in the
RGICSF in relation to the activity of credit institutions and the respect of supervision.
Article 9.
Sense and extension of the legislative authorization as to the definition of the illicit of mere
social ordering
1-In the use of the legislative authorization conferred by the ( g ) of Article 1 (3), may the
Government to define as punishable counterordinations with fine between € 3000 and € 1500
000 or between € 1000 and € 500000, depending on whether the collective is applicable or the person
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singular, the following infractions:
a) The distribution and reimbursement of electronic money by means of
representatives, without having been given compliance with the duty of communication
prior to the Bank of Portugal of the name and address of authorised entities
for the purpose, as well as the duty to update that information;
b) The default on the part of the agents of the institutions authorized in another
State Member of the European Union, of the duty of identification, in the face of its
customers, from the institution on behalf of whom they act;
c) The non-constitution of commercial society which has as its exclusive object to
issuance of electronic money and the provision of payment services, when
such a constitution shall be determined by the Bank of Portugal;
d) The violation of the rules on amendment and denunciation of framework contracts;
e) Failure to comply with the duties on the provision of extrajudicial means
effective and appropriate complaints and redress of disputes;
f) The ducts provided for and punished in the sub- a ), b) , d ), and ), f ), i) and l) of Article 210 para.
of the General Regime of Credit Institutions and Financial Societies, when
practiced in the context of the activity of electronic money institutions;
g) The violations of mandatory precepts contained in regulations issued by the
Bank of Portugal.
h) The violations of mandatory precepts not provided for in Articles 94 and 95 of the
RJIPSP, as well as of constant imperative norms of specific legislation
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which governs the activity of the payment institutions and currency institutions
electronics.
2-In the use of the legislative authorization conferred by the ( g ) of Article 1 (3), may
still the Government will define as especially serious counterordinations punishable with
cofine between € 10000 and € 5000000 or between € 4000 and € 2000000, whicheend
applicable for the collective ente or the natural person, the following infractions:
a) The unauthorized practice, by any individuals or entities, of the activity of
issuance of electronic money;
b) The exercise of activities not included in the legal object of the institutions of
electronic currency;
c) The use of the funds received in exchange for the issuance of electronic money
for distinct purposes of the implementation of payment services;
d) The breach of the duty to use the payment accounts exclusively for the
realisation of payment transactions;
e) The violation of the duty to exchange without delay the funds received by currency
electronics;
f) The granting of credit outside the conditions and limits set out in the Act;
g) The realization of statutory changes subject to prior authorization from the Bank of
Portugal without obtaining such permission;
h) The issuance of electronic money by representatives of the institutions of
electronic currency;
i) The failure to comply with the prudential standards relating to minimum capital and funds
own, without prejudice to the legal standards establishing exceptions, when it
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result in or may result in serious injury to the financial balance of the entity
in cause;
j) The failure to comply with the protection requirements of the funds, including the
non-compliance with determinations issued by the Bank of Portugal;
k) The violation of the rules on information and communications requirements;
l) The violation of the rules on charging charges;
m) The failure to comply with the obligations of repayment and payment;
n) The issuance of electronic money in violation of the duty of issuance by the value
nominal upon receipt of the funds;
o) The granting of interest or of any other benefit related to the period
of time during which the holder holds electronic currency;
p) The ducts provided for and punished in the sub- c), e), f), g), l), (o), (p), (q), r) and t) from the
article 211 of the General Regime of Credit Institutions and Societies
Financial, when practiced in the framework of the activity of currency institutions
electronics.
3-It is the government authorized to confer on the Bank of Portugal competence to instruct the
processes of counterordinance by the practice of the acts or omissions provided for in the numbers
previous.
4-Can the Government determine that if double the economic benefit exceeds the limit
maximum of the applicable fine, this is high to that value, without prejudice to the possibility of
application of the incidental sanction of seizure and loss of the object of the offence, including the
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economic product.
5-In the use of the legislative authorization conferred by the ( g ) from the n. 3 of the article 1, it may
also the Government establish, for the illicit of mere social ordering, the application,
cumulative , 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;
c) Suspension of the exercise of the right to vote allocated to the partners of the institutions
of payment or electronic money institutions for a period of 1 a
10 years;
d) Inhibition of the exercise of social positions and of functions of administration, direction,
management or managerial in credit institutions, financial societies, institutions
of payment and electronic money institutions, for a period of 1 a to 10
years, in the case of especially serious offences, provided for in Article 2 (2)
previous, and from six months to three years, in the case of the remaining offences;
e) Interdiction, in whole or in part, for a period up to three years, of the exercise of
activity of provision of payment or currency issuing services
electronics.
6-Still in the use of the legislative authorization conferred by the letter (s) g ) of Article 1 (3), stands
still the Government authorized to determine the applicability to the illicit of mere ordinance
Social the remaining norms, of a substantive and procedural nature, of the regime
counterordinance established in the RGICSF to electronic money institutions.
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Article 10.
Duration
The legislative authorization granted by this Law shall be for the duration of 180 days.
Seen and approved in Council of Ministers of June 6, 2012
The Prime Minister
The Minister of State and Finance
The Minister-Deputy and Parliamentary Affairs
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It was heard from the National Consumer Council and the Bank of Portugal, which held a
public consultation for this purpose.
Thus:
In the terms of the points a ) and b ) of Article 198 (1) of the Constitution, and in the use of
legislative authorization conferred by the Law n. [...], the Government enacts the following:
Article 1.
Object
The present decree-law transposes to the internal legal order to Directive No 2009 /110/CE,
of the European Parliament and of the Council of September 16 on access to activity
of the electronic money institutions, their exercise and prudential supervision, which
changes the Directive paragraphs 2005 /60/CE and 2006 /48/CE and repeals Directive No 2000 /46/CE.
Article 2.
Amendment to the General Regime of Credit Institutions and Financial Societies,
approved by Decree-Law No. 298/92, of December 31
Articles 2, 3, 4, 13, 116, 116.-D, 198, 199, 199-I and 212 of the General Regime of the
Credit Institutions and Financial Societies, approved by the Decree-Law No. 298/92, of
December 31, and amended by Decrees-Laws No 246/95 of September 14, para. 232/96,
of December 5, paragraph 222/99, of June 22, 250/2000, October 13, para.
285/2001 of November 3, paragraph 201/2002, September 26, para. 319/2002, 28
December, No. 252/2003, October 17, paragraph 145/2006, July 31, para. 104/2007, of
April 3, para. 357-A/2007, October 31, paragraph 1/2008, January 3, para. 126/2008, of
July 21, para. 211-A/2008, of November 3, by Law No. 28/2009 of June 19, by the
Decree-Law No. 162/2009 of July 20, by Law No. 94/2009 of September 1 by the
Decrees-Laws No 317/2009 of October 30, para. 52/2010, of May 26 and para. 71/2010,
of June 18, by Law No. 36/2010 of September 2, by the Decree-Law No. 140-A/2010,
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of December 30, by Law No. 46/2011, of June 24, and by the Decrees-Laws
n. 88/2011, of July 20, 119/2011, of December 26 and 31-A/2012, of 10 of
February, go on to have the following essay:
" Article 2.
[...]
1-[...].
2-[ Revoked ].
Article 3.
[...]
[...]:
a) [...];
b) [...];
c) [...];
d) [...];
e) [...];
f) [...];
g) [...];
h) [...];
i) [...];
j) [...];
k) [ Previous point (m) ];
) [Repealed].
Article 4.
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[...]
1-[...]:
a) [...];
b) [...];
c) Payment services, as defined in Article 4 of the legal regime
of payment services and electronic money;
d) [...];
e) [...];
f) [...];
g) [...];
h) [...];
i) [...];
j) [...];
k) [ Previous point l) ];
l) [ Previous point (m)];
m) [Previous point (n)];
n) [Previous point (o)];
o) [Previous point (p)];
p) [Previous point q )];
q) [Previous point r) ];
r) Issuance of electronic money
s) [...].
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2-[...].
Article 8.
[...]
1-Only credit institutions can exercise the reception activity, of the
public, from deposits or other refundable funds, for use by
own account.
2-Only credit institutions and financial companies can exercise, the
professional title, the activities referred to in points b ) a i ) and r) and s ) of paragraph 1
of Article 4, with the exception of the consultancy referred to in para. i).
3-[...].
4-[...]:
a) [...];
b) [...];
c) [...];
d) From the provision of payment services, by institutions of
payment and electronic money institutions, according to the
legal and regulatory standards governing the respective activity;
e) [...];
f) From the issuance of electronic money, by currency institutions
electronic, in accordance with the legal and regulatory standards that
govern the respective activity.
Article 13.
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[...]
1-[...].
2-[...].
3-[...].
4-Financial Institution: company that, not being an institution of
credit, and finding headquartered outside of the national territory but in another
Member state of the European Union, have as main activity
take stakes or exercise one or more of the activities referred to in the
Paragraphs 2 a to 12 and in paragraph 15 of the list appended to Directive No 2006 /48/CE, of the
European Parliament and of the Council of June 14, or, having the seat
in third country, exercise, in the main title, one or more of the activities
equivalent to those referred to in Article 5.
5-[...].
6-[...].
7-[...].
8-[...].
9-[...].
10-[...].
11-[...].
12-[...].
Article 116-D
[...]
1-[...].
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2-[...].
3-[...]:
a) [...];
b) [...];
c) [...];
d) Identification of the mechanisms implemented to ensure the
compliance with the provisions of Article 167 (8);
e) [...].
4-[...].
5-[...].
6-[...].
7-[...].
8-[...].
9-[...].
10-[...].
11-[...].
12-[...].
13-[...].
14-[...].
15-[...].
Article 117-The
Payment institutions and electronic money institutions
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The payment institutions and electronic money institutions
they are subject to the supervision of the Bank of Portugal under the terms of the
legal and regulatory standards governing the respective activity.
Article 198.
[...]
1-Unless the provisions of special law, shall apply, with the necessary
adaptations, financial companies and branches established in
Portugal the provisions of Chapters I, II, III and V of Title VIII.
2-[...].
Article 199-I
[...]
1-[...].
2-Without prejudice to the provisions of Article 198 (1), Chapter IV of the title
VIII is applicable to investment firms that exercise the activities
provided for in points b ) and c ) of Article 199 (1)-A or that are
included in the same supervisory perimeter on a consolidated basis of a
credit institution.
3-[...].
4-[...].
5-[...].
6-[ ... ].
Article 212.
[...]
1-[...]:
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a) [...];
b) [...];
c) When the accused is a natural person, inhibition of the exercise of
social positions and functions of administration, direction, management or
heads in the institution of credit, financial society, institution of
payment or institution of electronic currency determined or in
any credit institutions, financial companies, institutions
of payment or electronic money institutions, by a
period from six months to 3 years, in cases provided for in Article 210,
or from 1 year to 10 years, in cases provided for in Article 211;
d) [...].
2-[...]. "
Article 3.
Amendment to Law No. 25/2008 of June 5
Articles 3, and 24 and 25 of Law No. 25/2008 of June 5, which sets out measures of
preventive and repressive nature of combating the bleaching of advantages of
illicit provenance and financing of terrorism, as amended by the Decree-Law n.
317/2009, of October 30, go on to have the following essay:
" Article 3.
[...]
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1-[...]:
a) [...];
b) [...];
c) [...];
d) [...];
e) [...];
f) [...];
g) [...];
h) [...];
i) [...];
j) [...];
k) [Previous sentence (l).]
l) Electronic money institutions.
2-[...].
3-[...].
4-[...].
Article 24.
[...]
1-Financial entities, excluding exchange agencies, of the
payment institutions and electronic money institutions, stay
authorized to allow the execution of the identification and the duties of
diligence in relation to the clientele, set out in Article 7 and (a) to (c)
of Article 9 (1), in a third entity, in the terms of regulation
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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, a
payment institution or an institution of electronic money;
b) [...].
2-[...].
Article 25.
[...]
1-[...]:
a) [...];
b) In the case of issuance of electronic money whose monetary value,
stored electronically, represent a credit on the
issuer, which is counterpart to the receipt of funds in value no
lower than the monetary value issued and to be accepted by companies
several of the issuer, if the device cannot be recharged,
provided that the maximum passable amount of being stored
electronically on the device does not exceed € 250, or, if it can
sate it, when the limit that can be traded during the calendar year
does not exceed € 2500, unless an amount equal to € 1000 is
reimbursed in that calendar year at the request of the holder pursuant to the
article 91-B of the legal regime for payments and currency
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electronic, annex to Decree-law No. 317/2009 of October 30;
c) [...];
d) [...].
2-[...]. "
Article 4.
Amendment to Annex I to Decree-Law No 156/2005 of September 15
Annex I to Decree-Law No. 156/2005 of September 15, as amended by the Decrees-Laws
n ° 371/2007 of November 6, para. 118/2009 of June 19, and paragraph 317/2009, of 30 of
October, goes on to have the following essay:
" Annex I
[...]
1-[...].
2-[...].
3-[...]
4-Credit institutions, financial companies, payment institutions,
electronic money institutions and postal service providers in what
refers to the provision of payment services.
5-[...].
6-[...].
7-[...].
8-[...].
9-[...]. "
Article 5.
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Amendment to Decree-Law No 95/2006 of May 29
Article 2 of the Decree-Law No. 95/2006 of May 29, amended by the Decree-Law
n ° 317/2009 of October 30, it shall have the following essay:
" Article 2.
[...]
[...]:
a) [...];
b) [...];
c) [...];
d) "Provider of financial services" the credit institutions and
financial companies, the payment institutions, the institutions of
electronic currency, financial intermediaries in values
securities, insurance and reinsurance companies, the mediators of
insurance and pension fund management companies;
e) [...]. "
Article 6.
Amendment to Law No. 5/2002 of January 11
Articles 2, 3, 4, 13 and 14 of Law No 5/2002 of January 11, amended by the Law
n. 19/2008 of April 21 and by the Decree-Law No. 317/2009 of October 30 pass the
have the following essay:
" Article 2.
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[...]
1-In the phases of inquiry, instruction and prosecution of prosecutions concerning crimes
provided for in Article 1, the professional secret of the members of the social organs of the
credit institutions, financial companies, payment institutions and
electronic money institutions, their employees and those of them
provide service, as well as the secret of the employees of the tax administration,
cedem, if there is reason to believe that the respective information has an interest
for the discovery of the truth.
2-[...].
3-[...].
4-[...].
5-[...]:
a) [...];
b) [...];
c) Information regarding banking and financial transactions, including
payment and issuance operations, distribution and refund of
electronic money, in which the accused or the legal person are
actors;
d) [...];
e) [...].
6-[...].
Article 3.
Procedure relating to credit institutions, financial companies, institutions of
payment and electronic money institutions
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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 the credit institutions, financial companies,
to payment institutions or electronic money institutions the
information and supporting documents, or your copy, that are
relevant.
2-Credit institutions, financial companies, institutions of
payment and electronic money institutions are obliged to provide
the elements requested, within the time of:
a) [...];
b) [...].
3-[...].
4-[...].
5-[...].
6-Credit institutions, financial companies, payment institutions
or electronic money institutions indicate to the Attorney General of the
Republic a central entity responsible for the response to requests for
information and documents.
Article 4.
[...]
1-Bank account or payment account control mandates the respective
credit institution, payment institution or institution of currency
electronic to communicate any movements on the account to the authority
judicial or to the criminal police body within the twenty-four hours
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subsequent.
2-[...].
3-[...].
4-[...].
5-[...].
Article 13.
[...]
1-Who, being a member of the social bodies of credit institution,
financial society, payment institution or institution of currency
electronics, or your employee, or to them by providing service, or employee
of the tax administration, provide information or deliver documents
false or deturpated in the framework of ordered procedure pursuant to the
chapter II is punished with a prison sentence of 6 months to 3 years or fine not
less than 60 days.
2-[...].
Article 14.
[...]
1-Constitui against ordinance, punishable with fine of € 750 a € 750000, the
non-compliance with the obligations set out in Chapter II, by the
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credit institutions, financial companies, payment institutions or
electronic money institutions.
2-[...].
3-[...].
4-[...].
5-[...]. "
Article 7.
Amendment to that of the Decree-Law No. 3/94 of January 11
Article 1 of the Decree-Law No. 3/94 of January 11 with the amendments made by the
Decree-Law No 298/95 of November 18 by the Decree-Law No. 53/2001 of 15 of
February, and by the Decree-Law No. 317/2009 of October 30, passes the following
essay:
" Article 1.
[...]
1-[...].
2-[...].
3-[...].
4-Exchange agencies may still exercise the activity of agent of
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payment institution or electronic money institution with registered office
in Portugal or in another member state of the European Union, under the conditions
established in the Legal Regime for Payments and Electronic Currency,
annex to Decree-Law No 317/2009 of October 30. "
Article 8.
Amendment to the legal regime that regulates access to the activity of the institutions of
payment and the provision of payment services, approved by the Decree-Law n.
317/2009, of October 30
Articles 1 to 13, 15 to 21, 26, 31, 34, 41, 45, 50, 55, 55, 55, 55, 55, 55, 55.
56, 58, 59, 62, 64, 73, 85, 85, 90, 90 to 96, 90 to 96 of the legal regime regulating
access to the activity of payment institutions and the provision of payment services,
approved by Decree-Law No. 317/2009 of October 30, they go on to the following
essay:
" Article 1.
[...]
1-[ Previous body of the article ].
2-The present legal regime still regulates access to the activity of the institutions
of electronic money and the issuance of electronic money.
Article 2.
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[...]
[...]:
a) [...]:
i) The member state in which the registered office is located
provider of the payment service or the currency issuer
electronics; or
ii) If the provider of the payment service or the issuer of
electronic money has not, under its national law, been
any registered office, the member state in which it is located
central administration.
b) "State member state" the member state, distinct from the
Member state of origin, in which a service provider of
payment or an issuer of electronic money has an agent,
a branch office, or where it provides payment services or issues or
distributes electronic currency;
c) [...];
d) "Electronic currency" the monetary value stored electronically,
including in a magnetic way, represented by a credit on the
issuer and issued after receipt of bank notes, currencies and
scriptural currency, to effect payment operations within the meaning of the
point ( g) of this Article and which is accepted by natural person or
collective different from the issuer of electronic money;
e) "Payment institutions" the legal persons to whom it has been
granted permission, pursuant to Article 10, to provide and
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carry out payment services across the European Union;
f) "Electronic currency institutions" the legal persons to whom
has been granted permission, pursuant to Article 10, to
issue electronic currency;
g) [ Previous point (e) ];
h) [ Previous point f) ];
i) [ Previous point (g) ];
j) [ Previous point (h) ];
k) [ Previous point (i) ];
l) "Issuers of electronic money" the entities listed in the article
7.
m) [ Previous point (j) ];
n) "Consumer" a natural person who, in the contracts of services of
payment and contracts concluded with the coin issuers
electronics covered by this legal regime, acts with
target alhedles to their commercial or professional activities;
o) [ Previous point (m) ];
p) [ Previous paragraph (n) ];
q) [ Previous point (o) ];
r) "Funds" bank notes and currencies, scriptural currency and currency
electronic as defined in ( d) of this article;
s) [ Previous point (q) ];
t) [ Previous point r) ];
u) [ Previous point (s) ];
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v) [ Previous point (t) ];
w) [ Previous point u) ;
x) [ Previous point (v) ];
y) "Agent" a natural or legal person providing services of
payment on behalf of a payment institution or a
electronic money institution;
z) [ Previous point z) ];
aa) [ Previous Article aa) ];
ab ) [ Previous Article (ab) ];
ac ) [ Previous point (ac)];
ad ) [ Previous point (ad) ];
ae ) [ Previous point (ae) ];
af) "Branch" a separate establishment of the central administration that
it is part of a payment institution or an institution of
electronic money, devoid of legal personality and which performs
directly all or some of the operations inherent in the activity
of those institutions, with all the establishments being created in the
Country by an institution with registered office in another member state are
considered a single branch;
ag ) [ Previous point ag) ];
ah ) "Operational function relevant" the function whose failure or failure can
severely damage compliance, on the part of an institution
of payment or an institution of electronic money, of the
conditions of authorisation set out in this legal regime, the
your financial results, your soundness or the continuity of your
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payment services;
ai ) "Average value of electronic currency in circulation" the average value
total financial liabilities associated with electronic currency
issued at the end of each day during the last six months, calculated
on the first day of each month and applied to that month.
Article 3.
[...]
1-The present legal regime shall apply to the activity of the institutions of
payment with registered office in Portugal and the respective agents and branches,
as well as the provision of payment services in Portugal by the
legally entitled entities, without prejudice to the provisions of paragraphs 3 and 4.
2-The present legal regime is still applicable to the activity of the institutions of
electronic currency with registered office in Portugal and the respective agents,
branches and too many representatives, as well as the issuance, distribution and
refund of electronic money in Portugal by the entities legally
enabled.
3-Title III, with the exception of Article 84, is only applicable when both
providers of payment services, or the single provider, are
situated in Portugal or when one of the providers is situated in
Portugal and the other in another member state of the European Union.
4-[ Previous Article No 3 ].
Article 4.
[...]
[...]:
a) [...];
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b) [...];
c) Execution of payment transactions, including the transfer of
funds deposited in an open payment account with the
provider of payment services of the user or other
provider of payment services, such as:
i) The execution of direct debits, including those of a punctual character;
ii) [...];
iii) The execution of transfers to credit, including orders of
domiciliation;
d) [...]:
a) The execution of direct debits, including those of a punctual character;
b) [...];
c) The execution of transfers to credit, including orders of
domiciliation;
e) [...];
f) [...];
g) [...].
Article 5.
[...]
1-The present legal regime shall not apply to the following operations:
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a) [...];
b) [...];
c) [...];
d) [...];
e) [...];
f) [...];
g) [...]:
i) [...];
ii) [...];
iii) [...];
iv) [...];
v) [...];
vi) [...];
vii) [...].
h) [...];
i) [...];
j) [...];
k) [ Previous point l) ];
l) [ Previous point (m) ];
m) [ Previous paragraph (n) ];
n) [ Previous point (o) ];
o) [ Previous paragraph (p) ].
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2-The present regime is also not applicable to the stored monetary value
in the instruments referred to in ( k) from the previous number, nor to the value
money used to effect the payment transactions referred to in
point ( l) of the same number.
Article 6.
[...]
1-[...]:
a) Granting permission for the constitution of institutions of
payment and electronic money institutions and revoke it in the
cases provided for in the law;
b) [...];
c) [...];
d) Appreciate the complaints made by users of services of
payment and by electronic money holders;
e) [...].
2-[...]:
a) Require payment service providers and issuers of
electronic money the presentation of any information that
consider necessary for the verification of compliance with the standards of the
present legal regime;
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b) Carry out inspections of the establishments of the service providers
of payment and electronic money issuers, as well as the
of the respective agents and branches and, still, the establishments of
third parties to whom operational functions have been committed
relevant relating to the provision of payment services or the
issuance of electronic money;
c) [...].
3-Without prejudice to the powers conferred upon it by the General Regime
of the Credit Institutions and Financial Societies (RGICSF), the Bank of
Portugal exercises its prudential supervisory skills in relation
to payment institutions and electronic money institutions with
registered in Portugal, including the respective agents and established branches
abroad, as well as in relation to branches in Portugal of
electronic money institutions with headquarters outside the European Union.
4-The Bank of Portugal oversees compliance with Title III standards
with regard to the provision of payment services in Portugal by
part of the legally entitled entities to exercise this activity, including
through agents and branches, with the exception of the services provided in
free provision of services by authorised entities in others
Member States.
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5-The Bank of Portugal oversees compliance with Title III-A in what if
refers to the issuance, distribution and refund of electronic money in
Portugal on the part of the legally entitled entities to exercise this
activity, including through branches and natural or legal persons
qualified to distribute and reimburse electronic money in the name and under the
liability of electronic money institutions, with the exception of
activities carried out in regime of free provision of services by entities
authorized in other Member States.
6-Article 12 of the RGICSF shall apply, with the necessary adaptations, to
decisions of the Bank of Portugal taken in the framework of this scheme
legal.
7-[ Previous Article No 6 ].
8-In the application of competition defence legislation to the providers of
payment services and electronic money issuers and their
business associations, as well as payment systems, are
also applicable to articles 87 and 88 of the RGICSF, with the necessary
adaptations.
9-The rules on advertising provided for in Article 77-C of the RGICSF are
applicable to providers of payment services and issuers of
electronic money, the respective agents and branches and the persons
singular or legal entities enabled to distribute and repay currency
electronics, as well as the business associations of providers and
issuers, cabling the Bank of Portugal to exercise in relation to such
entities the powers provided for in Article 77-D of the same general scheme.
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Article 7.
[...]
1-[...]:
a) The credit institutions with registered office in Portugal whose object
understand the exercise of this activity, in accordance with the norms
applicable legal and regulatory;
b) [...];
c) The electronic money institutions with registered office in Portugal;
d) Credit institutions with registered offices outside Portugal legally
qualified to perform activity in Portugal;
e) The electronic money institutions and payment institutions
with registered office in another member state of the European Union, pursuant to the
present legal regime;
f) The branches of electronic money institutions with headquarters outside the
European Union, under the terms of this legal regime;
g) [ Previous paragraph (c) ];
h) The State, the Autonomous Regions and the services and bodies of the
direct and indirect administration of the State, when acting in the exercise
of public powers of authority;
i) The ECB, the Bank of Portugal and the other national central banks,
when they do not act in the quality of monetary authorities or in the
exercise of public powers of authority.
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2-The entities to which the points are referred d ), and ) and f) of the previous number only
you can provide the payment services you are authorized to provide
in your country of origin.
3-[...].
4-[...].
5-[...].
Article 8.
[...]
1-[...].
2-[...]:
a) Provision of closely related operational and ancillary services
with payment services, in particular provision of guarantees
of execution of payment transactions, foreign exchange services and services
of guard, storage and processing of data;
b) [...];
c) [...];
d) [...].
3-[...].
4-[...].
5-[ Revoked ].
6-It shall apply to the payment institutions with registered office in Portugal the scheme of
corrective intervention and interim administration of credit institutions
established in the RGICSF, with the necessary adaptations.
7-[...].
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8-[...].
9-[...].
10-[...].
11-[...].
Article 9.
[...]
1-Payment institutions and electronic money institutions only
may grant credit in the event that this is related to the services
of payment referred to in points d ), e) and g ) of Article 4 and provided that
find fulfilled the following conditions:
a) [...];
b) [...];
c) Credit may not be granted from the funds received or
held for execution of a payment transaction or received
in exchange for the issuance of electronic money;
d) The payment institution and the institution of electronic money shall
have, at all time, own funds appropriate to the volume of
credit granted, in accordance with the Bank's determinations
from Portugal.
2-The provisions of this legal regime shall be without prejudice to the legal provisions
applicable to credit to consumers.
3-Payment institutions and electronic money institutions that
grant credit under this article shall report to Central
of Credit Liabilities, managed by the Bank of Portugal, the
elements of information relating to the operations effectuin, in the terms
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and for the effects provided for in the regulatory legislation of the centralization of
credit responsibilities.
Article 10.
[...]
1-A constitution of payment institutions and currency institutions
electronic depends on authorisation to be granted, on a case by case, by the Bank of
Portugal.
2-Payment institutions and electronic money institutions with
seat in Portugal must meet the following conditions:
a) [...];
b) Having the minimum capital corresponding to the services to be provided, in the
terms of Article 29;
c) [...];
d) [...];
e) [...];
f) [...];
g) [...].
3-[...].
Article 11.
[...]
1-[...]:
a) Project of a company contract or amendment to the contract of
Society, from where a reference is expressed to the services of
payment, from among those listed in Article 4, that the institution of
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payment or the institution of electronic money proposes to provide;
b) [...];
c) [...];
d) [...];
e) A description of the procedures aimed at ensuring protection
of the funds of the users of the payment services and the
bearers of electronic money, pursuant to Article 32;
f) [...];
g) [...];
h) [...];
i) Supporting elements of the identity of directors and persons
responsible for the management of the payment institution or the institution
of electronic money and, where appropriate, of the persons responsible
by the management of the activities of payment and issuance services of
electronic currency of the applicant institution, as well as proof that
are elderly people and possess the knowledge and experience
suitable for performing payment services or issuing currency
electronic in the terms of Article 12;
j) [...];
k) [Previous point l)];
l) Address of the central administration of the institution.
2-[...].
3-[...].
Article 12.
[...]
1-Applies the provisions of articles 30 to 32 of the RGICSF, with the necessary
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adaptations, with regard to the suitability and professional experience of the
members of the administration and supervisory bodies of the institutions of
payment and electronic money institutions.
2-With respect to payment institutions and currency institutions
electronics that will simultaneously exercise the activities referred to,
respectively, in the c) of Article 8 (2) and (2) and ) of paragraph 2 of the
article 8-A, the requirements relating to the professional experience only if
apply to the persons to whom it kayaks to ensure the day-to-day management of the activity of
payments and issuance of electronic money.
Article 13.
[...]
1-[ Previous body of the article ].
2-The provisions of the preceding paragraph shall apply, with the necessary adaptations, to
authorization of electronic money institutions, and may in this case
commercial society previously referred to have by exclusive object not only
the issuance of electronic money, as also the provision of the services of
payment listed in Article 4.
Article 15.
Statutory changes and the elements of the application
1-[...].
2-Without prejudice to the provisions of articles 33--E and 33.-G to 33.-I, the remaining
statutory changes and, in general, changes to the elements that instruct
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the application indicated in Article 11 (1), they become subject to communication
immediate to the Bank of Portugal.
Article 16.
[...]
1-Applies to the expiry of the authorization of the payment institutions and the
electronic money institutions the provisions of Article 21 of the RGICSF,
also constituting a reason for expiry of the suspension of the activity by
period of more than six months.
2-It shall apply to the revocation of the authorization of the payment institutions and the
electronic money institutions, with the necessary adaptations, the provisions
in Articles 22 and 23 of the RGICSF, considering further grounds of
revocation of the permit the circumstance of the institution constituting a
threat to the stability of the payment system by the fact that
pursue the activity of the provision of payment services.
3-[...].
Article 17.
[...]
The provisions of Article 35 and paragraph 1 of Article 35 (1) of the RGICSF shall apply,
with the necessary adaptations, the merger, the spin-off and the voluntary dissolution of
payment institutions and electronic money institutions.
Article 18.
[...]
1-Payment institutions and electronic money institutions can
provide payment services through agents, assuming the
responsibility for the totality of the acts practiced by them.
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2-Should they wish to provide payment services through agents,
payment institutions and electronic money institutions with
registered office in Portugal must notify the Bank of Portugal beforehand
following information:
a) [...];
b) [...];
c) [...].
3-[...].
4-[...].
5-Payment institutions and electronic money institutions shall
ensure that the agents who act on their behalf inform them of that fact
users of payment services.
Article 19.
[...]
1-Payment institutions and electronic money institutions can
commit to third parties the operational functions relating to the services of
payment or the issuance of electronic money.
2-The Bank of Portugal must be informed in advance of the intention of
commit to third parties operational functions relating to the services of
payment or the issuance of electronic money.
3-A institution that commits to third parties the performance of operational functions
relevant should safeguard the quality of internal control and ensure that
the Bank of Portugal has conditions to check compliance with all the
applicable legal provisions.
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4-[...].
Article 20.
[...]
1-Payments institutions and electronic money institutions do not
can start their activity while they are not enrolled in
special registration at the Bank of Portugal.
2-The registration covers all the institutions enabled to provide services of
payments and to issue electronic money, as well as the respective agents
and branches.
Article 21.
[...]
1-Applies the provisions of articles 65 to 72 of the RGICSF, with the necessary
adaptations, to the register of payment institutions and institutions of
electronic currency with registered office in Portugal and the respective agents and
branches.
2-[...].
3-[...]:
a) The identification of payment institutions and institutions of
authorized electronic money and the respective agents and branches; and
b) The payment services understood in the authorization of the
institutions of payment.
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Article 23.
[...]
1-A payment institution or the institution of electronic money with registered office
in Portugal wishing to provide services for the first time in another state
member, in particular by the establishment of a branch or the
agent contracting, must notify the Bank of a notice beforehand
Portugal, specifying the following elements:
a) Country where it is proposed to establish branch, hire agent or, in
general, provide payment services or issue electronic money;
b) Name and the address of the institution;
c) [...];
d) [...];
e) [...];
2-[...].
3-In the event of modification of the elements set out in paragraph (b) to (e) of the n.
1, the institution shall communicate it, in writing, to the Bank of Portugal and to the
competent authority of the host member state.
4-[...].
Article 26.
Activity in Portugal of institutions with registered offices in other member states
1-Payment institutions and electronic money institutions
authorized in another member state of the European Union, which does not
benefit, respectively, from the derogation set out in Article 26 of the
Directive No 2007 /64/CE, of the European Parliament and of the Council, of 13 of
november, and of the derogation set out in Article 9 of the Directive
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2009 /110/CE, of the European Parliament and of the Council, may provide
services in Portugal, either through the opening of branches or the
hiring of agents, whether in a free provision of services, since
that such services are covered by the authorisation.
2-[...].
3-Institutions authorized in another member state may start their
activity in Portugal as soon as the Bank of Portugal receives from the authority
competent from the Member State of origin the communications provided for in the
n Article 23 (2) and in Article 24, with the specification of the elements which
in the case couberem.
4-In the event of modification of the elements set out in points b ) a and ) from the
article 23, the institution shall communicate it, in writing, to the Bank of Portugal and to the
competent authority of the member state of origin.
5-[...].
6-[...].
Article 31.
[...]
1-The own funds of the payment institutions must, in permanence,
be equal to or greater than the amount that result from the application of one of the
three methods described in the Annex to this legal regime entitled
"Calculation of own funds".
2-[...].
3-[...].
4-[...].
Article 34.
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[...]
1-[...].
2-Checking in some of the circumstances referred to in Article 13, the
Bank of Portugal may still determine, at any time, that the
institution subject to its supervision constitutes a commercial society that
have the exclusive object to the provision of the payment services
listed in Article 4 or, in the case of electronic money institutions,
the provision of these services and the issuance of electronic money, within the period that
for the purpose is fixed to it.
3-It is subsidarily applicable to the supervision activity of the institutions of
payment and electronic money institutions, with the necessary
adaptations, the provisions of the RGICSF, in particular the constant standards
of articles 120, 127 and 128 of that scheme.
4-[...].
5-[...].
Article 35.
Institutions authorized in other member states
1-Payment institutions and electronic money institutions
authorized in other member states and to provide services in Portugal,
provided that they 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.
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 the
branches, agents and third parties with operational functions, which preshas
services in Portugal under the responsibility of the mentioned institutions
in the previous number.
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3-[...].
4-[...].
5-[...].
6-In the event of a revocation or expiry of the authorisation in the Member State
of origin, the provisions of Article 47 of the RGICSF shall apply, with the
necessary adaptations.
7-[...].
Article 36.
[...]
1-Without prejudice to other applicable legal provisions, specifically in the
scope of the prevention of money laundering or the financing of the
terrorism, payment institutions and currency institutions
electronic must keep in file the records of all the operations of
payment and too much documentation relating to the provision of services of
payment during the minimum term of five years.
2-Electronic money institutions must still keep in file, in the
terms and by the time limit set out in paragraph 1, the records of all the operations of
issuance, distribution and refund of electronic and too much currency
documentation relating to these operations.
Article 37.
[...]
1-The professional secrecy regime provided for in Articles 78 and 79 of the
RGICSF is applicable to payment institutions and currency institutions
electronic, with due adaptations.
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2-[...].
3-[...].
4-[...].
Article 41.
[...]
1-[...].
2-In the situations covered by the Decree-Law No. 95/2006 of May 29, the
articles 42, 47, 48, 52 and 53 of this legal regime shall prevail
on the provisions of Articles 9, 11 (1), 13 and 14, with the exception of
points c) a h ), in Article 15, with the exception of points a ), b) and c ) of paragraph 1 and of the
n. 2, and still in Article 16, with the exception of point (s) a ) of the cited decree-law.
Article 45.
Derogation from information requirements for payment and currency instruments
low value electronics
[ Previous body of the article. ]
Article 46.
[...]
1-A This section applies to the insulated payment transactions
not covered by a framework contract.
2-[...].
Article 50.
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65
[...]
Immediately after the execution of the payment transaction, the provider of
payment services of the beneficiary must provide to this, or put to your
provision, pursuant to Art. 42 (2) and Article 47 (2), the following
information:
a) [...];
b) [...];
c) [...];
d) [...];
e) [...].
Article 53.
[...]
[...]:
a) [...];
b) [...];
c) [...]:
i) [...];
ii) [...];
iii) If this is agreed, the immediate application of changes in the rate
of interest or reference exchange and the requirements of
information relating to changes in the terms of paragraphs 4, 5 and 6
of Article 55;
d) [...];
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e) [...];
f) [...];
g) [...].
Article 55.
[...]
1-Any change to the framework contract or the information and conditions
specified in Article 53 shall be proposed by the provider of the service of
payment, in the terms provided for in Article 42 and Article 52 (2), and
no later than two months prior to the proposed date for its application.
2-[...].
3-[...].
4-[...].
5-The user of payment services shall be informed the most
expeditily possible of any change in the interest rate on the terms
provided for in Article 42 and Article 52 (2), save if the parties have
agreed in a periodicity or in specific forms for the provision or
provision of the information.
6-[...].
7-[...].
Article 56.
[...]
1-[...].
2-[...].
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3-[...].
4-If this is agreed upon in the framework contract, the service provider of
payment may denounce a framework contract of indefinite duration
upon a notice of at least two months, in the terms provided for
in Article 42 and in Article 52 (2)
5-[...].
6-[...].
Article 58.
[...]
1-After the amount of an individual payment transaction has been
debited in the payer's account, or, if the payer does not use an account,
upon receipt of the order of payment, the service provider of
payment of the payer provides this, immediately, save late
justified, and in the terms provided for in Article 42 and in Article 52 (2),
the following information:
2-[...].
3-[...].
Article 59.
[...]
1-After the execution of an individual payment transaction, the provider of
payment services of the beneficiary provides to this, without unwarranted delay
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and in the terms provided for in Article 42 and in Article 52 (2), the following
information:
2-[...].
3-[...].
Article 62.
[...]
1-[...].
2-When the user of the payment service is not a consumer, the
parties may depart from the application, in whole or in part, of the provisions of paragraph 3
of Article 63, in Article 65 (3) and in Articles 70, 72, 74, 77, 77,
86. and 87 and, well, agree on a period other than that set out in the article
69.
3-[...].
4-[...].
Article 63.
[...]
1-[...].
2-[...].
3-[...].
4-[...]:
a) [...];
b) Revocation of a payment order, under the terms set out in para.
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7 of Article 77;
c) [...].
5-[...].
6-[...].
Article 64.
Derogation for low-value payment instruments and electronic currency
1-[...]:
a) Do not apply to ( b) of Article 67 (1), the points c ), d ) and e)
of Art. 68 (1) and paragraphs 4 and 5 of Article 72, if the
payment instrument do not allow to block these operations
nor prevent their subsequent use;
b) [...];
c) [...];
d) [...];
e) [...].
2-Articles 71 and 72 shall also apply to the electronic currency in the
meaning of the point d) of Article 2, save if the provider of the service of
payday payment of the payer does not have the possibility to block the
payment instrument that only allows to store funds whose amount
never exceed € 150.
Article 73.
[...]
1-[...].
2-[...].
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3-[...].
4-[...].
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 rate of
reference exchange agreed with the respective service provider of
payment, under the terms of the paragraph d ) of Article 48 (1) and sub-paragraph ii )
of the paragraph c ) of Article 53.
6-[...].
Article 77.
[...]
1-[...].
2-[...].
3-[...].
4-[...].
5-[...].
6-[...].
7-In the situations provided for in the two preceding paragraphs, and by clause
express from the framework contract, the payment service provider may
charge charges for revocation.
Article 85.
[...]
1-[...].
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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 Articles 86 and 87, by the non-execution or by the execution
deficient of the payment transaction.
3-[...].
4-Notwithstanding the user of payment services can provide
additional information to those specified in the ( a ) of Article 48 (1)
or in the sub-paragraph ii) of the paragraph b ) of Article 53, the provider of services of
payment only is responsible for the execution of the payment transactions
in compliance with the unique identifier provided by the user of
payment services.
Article 86.
[...]
1-Should a payment order be issued by the payer, the
liability for the correct execution of the payment transaction before the
payer rests with the respective payment service provider, without
Injury to Article 69, paragraphs 2, 3 and 4 of Article 85 and Article 90 para.
2-[...].
3-[...].
4-[...].
5-[...].
6-[...].
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Article 87.
[...]
1-Should a payment order be issued by the beneficiary or through
of this, it is up to the respective provider of payment services, without prejudice
of the provisions of Article 69, in paragraphs 2, 3 and 4 of Article 85 and Article 90, the
liability to the beneficiary for the correct transmission of the order
of payment to the payer's payment service provider, nos
terms of Article 80 (5)
2-[...].
3-Notwithstanding the provisions of the preceding paragraph, it is up to the provider of services
of payment of the beneficiary, without prejudice to the provisions of Article 69, in the
n. paragraphs 2, 3 and 4 of Article 85 and in Article 90, the liability to the
beneficiary by the processing of the payment transaction pursuant to their
obligations arising from Article 84 para.
4-[...].
5-[...].
6-[...].
7-[...].
8-[...].
Article 88.
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[...]
The provisions of Articles 86 and 87 shall be without prejudice to the right to compensation
supplementary under the law applicable to the contract.
Article 90.
[...]
The liability laid down in Articles 65 to 89 shall not apply in the event of
abnormal and unpredictable circumstances alhedances to the will of the party that the
invokes, if the respective consequences had not been able to be avoided
despite all the efforts made, or in case the service provider of
payment is bound by other legal obligations, namely the
related to the prevention of money laundering and
financing of terrorism.
Article 91.
[...]
1-Without prejudice to other legitimate causes of treatment enshrined in law, it is
permitted the processing of personal data by payment systems and
by payment service providers to the extent that it is shown
necessary to the safeguarding of prevention, research and detection of
fraud in respect of payments.
2-[...].
Article 92.
[...]
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1-Without prejudice to access, by users of payment services and by the
bearers of electronic money, the competent judicial means, the
payment service providers and electronic money issuers
must offer the respective users of payment services and
e-money carriers access to effective extrajudicial means and
appropriate claim and repair of disputes of equal or lower value
to the winged of the courts of 1 th instance, relating to rights and obligations
set out in the headings III and III-A of this legal regime.
2-A offer referred to in the preceding paragraph shall be made by the accession of the
payment service providers and electronic money issuers
to at least two entities authorized to carry out arbitrations under the
Decree-Law No 425/86 of December 27 or to two registered entities
in the system of voluntary registration of extrajudicial resolution procedures
of consumer conflicts, established by the Decree-Law No. 146/99, of 4 of
may.
3-The entities chosen by the payment service providers and the
electronic money issuers shall observe the principles applicable to the
organisms responsible for the extrajudicial resolution of conflicts of
consumption set out in the Recommendation, of the Commission of the European Union,
n. 98 /257/CE of March 30.
4-Payment service providers and currency issuers
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electronic may, in complement to the offer of the means previously
referred to, submit the disputes mentioned in paragraph 1 to the intervention of a
client or analogous entity provider, designated according to the
principles formulated in Recommendation No. 98 /257/CE, of the Commission of the
European Union, March 30.
5-Payment service providers and currency issuers
electronic must still ensure that the resolution of cross-border disputes
be forwarded to signatory entity of the network accession protocol
FIN-NET of cooperation in the extrajudicial settlement of disputes
cross-border in the financial sector, and may choose to fall on one of the
entities mentioned in the previous numbers.
6-Payment service providers and currency issuers
electronics communicate to the Bank of Portugal the entities to which hajam
adhered to in accordance with paragraph 2, within 15 days after accession.
7-The provisions of this Article shall not apply to providers of
payment and electronic money issuers indicated,
respectively, in the points h) and i) of Article 7 (1) and paragraphs (1) f) and g)
of paragraph 1 of Article 7.º-A.
Article 93.
[...]
1-Without prejudice to access to the competent judicial means, users of
payment services and electronic money holders, or their
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representative associations, as well as the other interested, may
present, directly to the Bank of Portugal, complaints founded on the
non-compliance with standards of securities III and III-A of this regime
legal on the part of payment service providers and issuers
of electronic money.
2-[...].
3-[...].
Article 94.
[...]
1-[...]:
a) [...];
b) The distribution and reimbursement of electronic money by means of
representatives, in accordance with paragraphs 1 and 2 of Article 18, without which
has been given compliance with the provisions of paragraph 4 of the same article;
c) The default on the part of the agents of the authorized institutions
in another member state of the European Union, of the duty of information
provided for in Article 26 (5);
d) [Previous point (b)] ;
e) The non-constitution of commercial society that has as its object
exclusive to the provision of payment services or, in the case of
electronic money institutions, the provision of these services and the
issuance of electronic money, when determined by the Bank of
Portugal in accordance with Article 34 (2);
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f) [Previous point (d)] ;
g) The violation of the rules on amendment and denunciation of framework contracts
provided for in paragraphs 4, 6 and 7 of Article 55 and in paragraphs 1 and 4 of Article 56;
h) [Previous point (f)] ;
i) [Previous point (g)] ;
j) [Previous point (h)] ;
k) [Previous point (i)] ;
l) Failure to comply with duties relating to the provision of means
effective and appropriate extrajudicial and redress of complaint and repair
disputes, in the terms provided for in Article 92;
m) The intended ducts and punishments in points (a) ), (b), (d), and), f), i) and l ) from the
article 210 of the RGICSF, when practiced in the framework of the activity
of the payment institutions and the electronic money institutions;
n) The violations of mandatory precepts contained in regulations
issued by the Bank of Portugal under the letter c) of paragraph 1 of the
article 6, not provided for in this Article or in the following article;
o) The violations of the imperative precepts of this diploma and the legislation
specific that governits the activity of payment institutions and the
electronic money institutions, not provided for in the previous Article
and in the following article, as well as of the regulations issued by the
Bank of Portugal in compliance or for the implementation of the said
precepts .
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2-[...].
Article 95.
[...]
a) The unauthorized practice, by any individuals or entities, of the
payment service activity or coin issuance activity
electronics;
b) The exercise, by the payment institutions and the currency institutions
electronics, of activities not included in its legal object, or the provision
of payment services not included in the respective authorisation;
c) The use of the funds from the users of the services of
payment for distinct purposes of the execution of these services, in violation of the
provisions of Article 8 (3);
d) The breach of duty, provided for in Article 8 (4), of using the accounts of
payment that they are the holders of the payment institutions or the
electronic money institutions exclusively for the realization of
payment operations;
e) The breach of duty, provided for in Article 8 (4), to exchange without delay
the funds received by electronic money;
f) The granting of credit outside of the conditions and limits set by the
shelter from Article 9;
g) The realization of statutory amendments provided for in Article 15 (1),
when not preceded by permission of the Bank of Portugal;
h) The issuance of electronic money by the representatives of the
electronic money institutions mentioned in paragraphs 1 and 2 of Article 18-
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A, in disregard of the constant prohibition of paragraph 3 of the same Article 18;
i) The failure to comply with the prudential standards set out in Articles 29, 30, without
Injury to paragraph 3 of the same Article, 31, without prejudice to paragraph 3 of the same
article, 33.-B, 33.-C, without prejudice to paragraph 3 of the same article, and 33.-D, without
injury to paragraph 4 of the same article, when it results in or may result
serious injury to the financial balance of the entity concerned;
j) The failure to comply with the protection requirements of the funds defined in the article
32. and 33.-And, including the default of determinations issued by the
Bank of Portugal under Art. 32 (6) and paragraphs 6 and 7 of the article
33.-And;
k) [Previous point (a)] ;
l) The violation of the rules on information and communications requirements
provided for in Articles 42, 45, 47 to 50, 52 to 61, 57 to 61, in paragraph 3 of the
article 66, in paragraphs 2 and 3 of Article 76 (3) of Article 78 (5) of the
article 86, in Article 87 (7) and in Article 91 (2) of the Article 91;
m) The violation of the rules on the collection of charges laid down in Article 43,
in paragraphs 2, 3, 5 and 6 of Article 56, in Article 76 (4), para.
n Article 77 (7), in paragraphs 1 and 2 of Article 78, paragraph 3 and para.
Paragraphs 3 and 4 of Article 91-B;
n) [Previous point (d)] ;
o) [Previous point (e)] ;
p) The failure to meet the repayment and payment obligations provided for in the
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n Article 71 (1), Article 73 (1), paragraphs 2 and 3 of Article 74, us.
Paragraphs 3 and 4 of Article 86, paragraphs 4 and 6 of Article 87 and paragraphs 1, 5 and 6 of the
article 91-B;
q) [Previous point (g)] ;
r) [Previous point (h)] ;
s) [Previous point (i)] ;
t) The issuance of electronic money in violation of the duty of issuance by the value
nominal upon receipt of the funds provided for in Article 91;
u) The granting of interest or of any other benefit related to the
period of time during which the holder holds electronic currency, in
violation of the provisions of Article 91-C;
v) The ducts provided for and punished in the sub- c), e), f), g), l), (o), (p), (q), r) and t)
of Article 211 of the RGICSF, when practiced in the framework of the activity of the
payment institutions and electronic money institutions ".
Article 96.
[...]
1-[...]:
a) [...];
b) [...];
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c) Suspension of the exercise of the right to vote allotted to the partners of the
payment institutions or electronic money institutions
for a period of 1 a to 10 years;
d) Inhibition of the exercise of social positions and functions of administration,
direction, management or managerial in credit institutions, societies
financial, payment institutions and currency institutions
electronic, for a period of six months to three years, in the case of
offences set out in Article 94, or 1 a to 10 years, in the case of
offences set out in Article 95;
e) Interdiction, in whole or in part, for a period up to three years, of the
exercise of the activity of provision of payment services
listed in Article 4 or issue of electronic money.
2-[...]. "
Article 9.
Addition to the legal regime that regulates access to the activity of the institutions of
payment and the provision of payment services, approved by the Decree-Law
n. 317/2009, of October 30
They are deferred to the legal regime that regulates access to the activity of the institutions of
payment and the provision of payment services, approved by the Decree-Law
n. 317/2009, of October 30, Articles 7, 8-A, 9.-A, 23.-A, 27.
33.-A, 33.-B, 33.-C, 33.-D, 33.-And, 33.-F, 33.-G, 33.-H, 33.-I, 91.-B, 91.-C, 91
91. º-D, with the following essay:
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" Article 7.
Issuers of electronic money
1-Can only issue electronic money the following entities:
a) The credit institutions with registered office in Portugal whose object
understand the exercise of this activity, in accordance with the norms
applicable legal and regulatory;
b) The electronic money institutions with registered office in Portugal;
c) Credit institutions with registered offices outside Portugal legally
qualified to perform activity in Portugal;
d) The electronic money institutions based in another State
member of the European Union, under the terms of this legal regime;
e) The branches of electronic money institutions with headquarters outside the
European Union, under the terms of this legal regime;
f) The State, the Autonomous Regions and the services and bodies of the
direct and indirect administration of the State, when acting in the exercise
of public powers of authority;
g) The ECB, the Bank of Portugal and the other national central banks,
when they do not act in the quality of monetary authorities or in the
exercise of other public powers of authority;
2-The provisions of paragraphs 3, 4 and 5 of Article 7 shall apply to the institutions of currency
electronic, with the necessary adaptations.
Article 8-The
Electronic money institutions
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1-Electronic money institutions are legal persons, subject to the
present legal regime, which have the object of issuing electronic money.
2-Electronic money institutions may still exercise the following
activities:
a) Provision of the payment services referred to in Article 4;
b) Provision of credits related to payment services
referred to in points d ), and ) and g ) of Article 4, according to the
conditions set out in Article 9;
c) Provision of closely related operational and ancillary services
with the issuance of electronic money or with payment services,
specifically the provision of guarantees of execution of operations of
payment, foreign exchange services and guard services, storage and
treatment of data;
d) Exploitation of payment systems, without prejudice to the provisions of the
article 39;
e) Various professional activities of the issuance of electronic money, in
compliance with the legal provisions applicable to these activities.
3-Electronic money institutions cannot receive from the public
deposits or other refundable funds within the meaning of Article 2 (1).
of the RGICSF.
4-The funds received by the electronic money institutions and coming from
of holders of electronic money shall be exchanged without delay by
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electronic currency, not constituting receipt of deposits or other
refundable funds within the meaning of Art. 2 (1) of the RGICSF.
5-Article 8 (3) and (4) shall apply to the funds received by the
electronic money institutions with a view to the provision of services of
payment referred to in Article 4 that are not associated with the issuance of
electronic currency.
6-Is applicable to electronic money institutions with registered office in Portugal o
corrective intervention regime and provisional administration of
credit institutions established in the RGICSF, with the necessary
adaptations.
7-A dissolution and the settlement of electronic money institutions with headquarters
in Portugal, including branches established in other member states,
have the sole object of the issuance of electronic money, or still
the activities referred to in the ( a ), b) , c ) and d ) of paragraph 2, become subject, with
the due adaptations, to the regime provided for in Chapter II of the Decree-Law
n ° 199/2006 of October 25 on the liquidation of institutions of
credit and financial companies.
8-Electronic currency institutions that exercise simultaneously the
activities referred to in point (s) e) of paragraph 2 shall be subject to the provisions of the
Code of Insolvency and Business Recovery, with the specialties
constants of Article 8 (9), 10 and 11 of Article 8, applicable, where
required, with due adaptations.
Article 9-A
Duties of abstention, registration and communication of operations with entities
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sedeed in jurisdiction offshore
The duties of abstention, registration and communication of operations with entities
sedeed in jurisdiction offshore , provided for in Article 118-A of the RGICSF, they are
applicable to providers of payment services listed in paragraph 1 of the
article 7.
Article 18-The
Distribution and reimbursement of electronic money by representatives of currency institutions
electronics
1-Electronic money institutions can distribute and repay currency
e-electronics through natural or legal persons acting in their
name and under your responsibility.
2-The agents to whom the electronic money institutions have availed to
provide payment services under Article 18 may also
distribute and reimburse electronic money in the name and under the
responsibility of them.
3-It is forbidden to the representatives mentioned in paragraphs 1 and 2 to issue currency
electronics.
4-Electronic money institutions must communicate in advance to the
Bank of Portugal the name and address of the entities authorized to
distribute and refund electronic money in your name and pass it on
immediately any change to these elements of information.
5-Electronic money institutions assume responsibility for the
totality of the acts of the persons authorized to act in their representation in the
terms of this article.
Article 23-The
Distribution and reimbursement of electronic money in another member state
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In the case of an electronic money institution with a registered office in Portugal
intend to distribute or reimburse electronic money in another member state
through the persons referred to in Article 18, the provisions of the provision shall apply
article 23, with the necessary adaptations.
Article 27-The
Branches of third countries
To the establishment in Portugal of branches of currency institutions
authorized electronics in countries that are not members of the European Union is
applicable the provisions of Articles 57 to 59 of the RGICSF with the necessary
adaptations.
Article 33-The
General principle
Electronic money institutions must apply the funds they have
in such a way as to ensure, at all time, adequate levels of liquidity and
solvability.
Article 33-B
Minimum capital
1-The electronic money institutions with registered office in Portugal must, at all
the time, owning capital not less than € 350000.
2-The minimum capital referred to in the preceding paragraph shall be constituted by the
elements defined in the subparagraphs a) and b ) of Article 57 of the Directive
n. 2006 /48/CE, of the European Parliament and of the Council of June 14.
3-Electronic money institutions must constitute special reserves
intended to strengthen the net situation or to cover damage that the account of
profits and losses can't bear.
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Article 33-C
Own funds
1-The own funds of the electronic money institution should not be
lower 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, depending on the
that is higher.
2-The rules on the composition of the own funds of the institutions of
electronic money are as fixed by notice of the Bank of Portugal.
3-Checking the decrease in own funds below the defined limit
in paragraph 1, the Bank of Portugal may, whenever the circumstances o
justify, grant the institution a limited time limit for them to regularize the
situation.
4-In case the institution of electronic money belongs to the same group of another
institution of electronic money, credit institution, institution of
payment, financial society or insurance company, is not permitted to
multiple use of eligible elements for own funds.
5-A multiple use of the eligible elements for own funds
is also not permitted in relation to electronic money institutions
that exercise other distinct activities of the issuance of electronic money or
of the provision of the payment services indicated in Article 4.
6-When an electronic money institution exercises other activities
distinct from the issuance of electronic money or the provision of the services of
payment indicated in Article 4, which are also subject to
requirements of own funds, the payment institution must respect
additionally such requirements.
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Article 33-D
Requirements of own funds
1-The own funds of electronic money institutions shall, in
permanence, be equal to or higher than the amount that results from the sum of the
requirements set out in the following numbers.
2-With regard to the issuance activity of electronic money, the
own funds requirements of electronic money institutions must
correspond at least to 2% of the average value of the electronic currency in
circulation.
3-With regard to the activity of provision of payment services
referred to in Article 4 not associated with the issuance of electronic money, the
own funds requirements of electronic money institutions are the
that result from the application of one of the three methods described in the Annex to
present legal regime entitled "Calculation of own funds",
applying for the provisions of paragraphs 2 and 4 of Article 31 of this scheme.
4-Based on an evaluation of the risk management procedures, of the
data relating to the risks of losses and internal control mechanisms,
the Bank of Portugal may require or permit, respectively, that the
electronic money institution detains an amount of own funds
higher or lower by 20% at most to the amount that would result from the
application of paragraph 2 of this article.
5-Notwithstanding the provisions of the preceding paragraphs and in Articles 33-B. and 33-
C. °, the Bank of Portugal may adopt the procedures laid down in the
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article 6, in order to ensure that electronic money institutions
affect on the exploitation of its electronic money issuance activity and
provision of payment services a sufficient level of own funds,
specifically when the activities referred to in Article 8 (2).
prejudice or may impair the financial soundness of the institutions.
Article 33-And
Requirements for protection of funds
1-Electronic money institutions shall ensure the protection of the
funds that have been received in exchange for electronic money,
applying it with due adaptations, the provisions of Article 32, without
injury to the specialities set out in numbers 3 a to 7.
2-To the activity of provision of payment services referred to in Article 4.
not associated with the issuance of electronic money applies the provisions of the
article 32.
3-The funds received in the form of payment by an instrument of
payment do not have to be protected until they are credited to the account of
payments from the electronic money institution or by another means placed at the
provision of the same institution, in accordance with the provisions relating to the
term of implementation set out in this legal regime. In all the
case, the institutions shall ensure the protection of such funds within the period of
five working days, from the date of issuance of the electronic currency.
4-For the purposes of the application of the procedures laid down in sub-paragraph (ii) of the
point ( a) of Article 32 (1) with regard to the funds that they have
been received in exchange for electronic money, consider themselves as assets
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safe and low-risk assets that belong to one of the categories
listed in Table 1 of point 14 of Annex I to Directive 2006 /49/CE,
of the European Parliament and of the Council of June 14, 2006 on the
suitability of the own funds of investment firms and
credit institutions, in respect of which the requirement of own funds
for specific risk not exceeding 1.6%, but with the exclusion of others
eligible elements referred to in point 15 of the same annex.
5-Considered, still, safe and low-risk assets the units of
participation in the capital of collective investment bodies in values
securities (UCITS) that only invist in the assets referred to in the number
previous.
6-In exceptional and duly justified circumstances, the Bank of
Portugal may, on the basis of an assessment of the safety, of the time limit of
maturity, the value and other risk factors of the assets referred to in the
paragraphs 4 and 5, determine which of these assets do not meet the requirements of
safety and low risk.
7-For the purposes of paragraphs 1 and 2, the Bank of Portugal may determine which of the
procedures provided for in Article 32 (1) shall be used by the
electronic money institutions to ensure the protection of funds
received.
8-Electronic money institutions must inform the Bank in advance
of Portugal of any relevant change they wish to adopt
regarding the protection of the funds that have been received in exchange for
electronic currency.
Article 33-F
Accounting and legal review of accounts
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The rules on accounting and legal review of accounts provided for in Article 33.
Apply to electronic money institutions, with due adaptations.
Article 33-G
Communication of the qualifying holdings, their increase and decrease
1-A natural or legal person who, directly or indirectly, intends to detain
a qualified participation within the meaning of point 7 of Article 13 of the
RGICSF in an electronic money institution must communicate
previously to the Bank of Portugal your project.
2-They must still be communicated in advance to the Bank of Portugal the acts
that involve increasing a qualified participation, whenever they
may result, depending on the cases, a percentage that reaches or
exceeds any of the thresholds of 20%, 30% or 50% of the capital or of the
voting rights at the participating institution, or when this one will turn into
subsidiary of the procuring society.
3-The Bank of Portugal may, under the terms of Article 102 of the RGICSF,
declare officially the qualified character of any participation in the
capital or in the voting rights of an electronic money institution.
4-A celebration of the acts upon which the projects of
acquisition or increase in qualified participation, subject to communication
prior to the terms of paragraphs 1 and 2, shall be communicated to the Bank of Portugal
within 15 days.
5-A natural or legal person who intends to cease to hold a
qualified participation, or decreases it in such a way that the percentage of the
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voting rights or the capital of which it is proprietor down to below the
any of the thresholds referred to in paragraph 2, or in such a way that the institution
will cease to be its subsidiary, must inform the Bank of Portugal in advance and
communicate you the new amount of your participation.
6-If you check the reduction of a stake to a level lower than 10%
of the capital or voting rights of the participating institution, the Bank of
Portugal will communicate to its holder, within a maximum of 30 working days, if
considers that the resulting participation has a qualified character.
7-The situation provided for in paragraph 5 shall apply, with due adaptations, the
provisions of paragraph 4.
8-The Bank of Portugal establishes, by notice, the elements and information that
shall accompany the communication provided for in paragraphs 1 and 2.
9-If the communication carried out pursuant to this article is not
duly instructed, the Bank of Portugal informs the proposed acquirer,
in writing, of the missing elements or information.
Article 33-H
Assessment of the acquisition project or increase in qualified participation
1-The Bank of Portugal may object to the acquisition or increase project
of qualified participation on the grounds of the provisions of paragraphs 1 and 2 of the
article 103 of the RGICSF, duly adapted.
2-The Bank of Portugal informs the proposed acquirer of its decision in the
deadline of sixty working days from the date of receipt of the communication
provided for in paragraphs 1 and 2 of the preceding article or of the date response to the request for
additional information referred to in paragraph 9 of the previous article and the
the following number, but never after after decorations 4 months after that
first date.
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3-The Bank of Portugal may request the proposed acquirer, at all
time, supplementary elements and information, as well as carry out the
enquiries that you consider necessary.
4-Should you decide to oppose the project, the Bank of Portugal:
a) Informs the proposed acquirer, in writing, of its decision and of the
reasons that substantiate it, within two working days of the
date of the decision and before the expiry of the period provided for in paragraph 2;
b) It may disclose to the public the reasons that substantiate the opposition, by
your initiative or at the request of the proposed acquirer.
5-It is considered that the Bank of Portugal is not opposed to the project if it does not
pronount on the time limit set out in paragraph 2.
6-Articles 105 and 106 of the RGICSF are applicable, with the necessary
adaptations, to the inhibition of voting rights in the institution of currency
electronic participated or in an entity that detains, directly or indirectly,
voting rights in the institution of participating electronic money and, still, the
inhibition of voting rights exerted by the institution participating in other
institutions with which to find themselves in a domain relation, direct or
indirect.
Article 33-I
Communication by electronic money institutions
1-Electronic money institutions shall communicate to the Bank of Portugal,
as soon as they have knowledge, the changes to which the article relates
33 .º-G.
2-In April of each year, electronic money institutions shall communicate to the
Bank of Portugal the identity of its shareholders holders of
qualified participations and the amount of the respective shareholdings
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Article 91-The
Issue
The electronic currency shall be issued by the nominal value at the reception
of the funds.
Article 91-B
Refundable character
1-A The bearer's request, the issuer of electronic money shall reimburse,
at any time and by the nominal value, the monetary value of the currency
detained electronics.
2-The contract between the issuer of electronic money and the respective holder
must clearly indicate and highlight the conditions of reimbursement,
including any commissions related to the same, owing the
holder be informed of these conditions before linking to any
contract or offer.
3-The refund may only be subject to a commission if this is declared
in the contract, pursuant to paragraph 2, and in one of the following cases:
a) The refund is requested before the term fixed for the contract;
b) The contract shall fix a term and the holder to report the contract before
of that date; or
c) The refund is asked for more than one year after the term fixed for the
contract.
4-A committee referred to in the preceding paragraph shall be proportionate and based
in costs effectively borne by the issuer of electronic money.
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5-Case ask for the refund before the term fixed for the contract, the holder
of electronic money may ask you to be reimbursed a party or to
all of the monetary value corresponding to the e-currency held.
6-Should the refund be requested by the electronic money holder on the date
of the term of the contract or within one year after that date:
a) The totality of the monetary value of the electronic currency is repaid
detained; or
b) If the institution of electronic money exercises one or more of the
activities referred to in ( e) of Article 8 (2)-A and not
known in advance the portion of the funds to be used as
electronic money, must be refunded the whole of the funds
requests by the holder.
7-Notwithstanding the provisions of paragraphs 3, 4, 5 and 6, the right to reimbursement by
part of the people who, not being consumers, accept electronic money
in payments shall be subject to the discipline of the contract concluded between the
issuers of electronic money and the persons concerned.
Article 91-C
Prohibition of interest
The assignment of interest or for any other related benefit is prohibited
with the period of time during which the holder holds electronic currency.
Article 91-D
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Change in conditions and denunciation of the contract between the issuer and the holder
of electronic money
The provisions of Articles 55 and 56 shall apply, with the necessary adaptations, to the
contract between the issuer of electronic money and the respective holder, without
prejudice to the provisions relating to the conditions of reimbursement and the
payment instruments and low-value electronic currency ".
Article 10.
Amendment to the systematic organization of the legal regime regulating access to
activity of payment institutions and the provision of payment services,
approved by Decree-Law No. 317/2009, of October 30
1-Title II of the legal regime regulating access to the activity of the institutions of
payment and the provision of payment services goes on to have the epitographer " Providers of
payment services and electronic money issuers ".
2-Chapter II of Title II of the legal regime regulating access to the activity of the
payment institutions and the provision of payment services goes on to have the episte
"Authorization and registration".
3-Chapter IV of Title II of the legal regime regulating access to the activity of the
payment institutions and the provision of payment services goes on to have the episte
"Supervision of payment institutions and electronic money institutions".
4-It is created subsection I of section I of Chapter IV of Title II of the legal regime which
regulates access to the activity of payment institutions and the provision of services of
payment, with the episting "Institutions of Payment", covering Articles 28,
29., 30, 31, 32 and 33.
5-It is created subsection II of section I of Chapter IV of Title II of the legal regime which
regulates access to the activity of payment institutions and the provision of services of
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payment, with the epitome "Electronic currency institutions", covering the articles
33.-A., 33-B., 33, 33-D.-D., 33-E., 33.-F., 33.-G.-G., 33.-H. °, 33.-I.
6-Title III-A of the legal regime regulating access to the activity of the institutions is created
of payment and the provision of payment services, with the epigraft " Issue and
refundable character of the electronic currency ", covering Articles 91-A, 91.-B, 91-
C and 91 .no-D.
Article 11.
Re-publication and new designation of the legal regime regulating access to activity
of the payment institutions and the provision of payment services, approved
by Decree-Law No. 317/2009, of October 30
It is republished, in annex, which forms an integral part of this decree-law, the legal regime
that regulates access to the activity of payment institutions and the provision of services of
payment, approved by the Decree-Law No. 317/2009 of October 30, with the amendments
introduced by the present decree-law, passing the same to be designated " legal regime
of payment services and electronic money ".
Article 12.
Amendment to the systematic insertion of Annex II to Decree-Law No. 317/2009, 30 of
October, and to your essay
1-Annex II to Decree-Law No. 317/2009 of October 30, under the epiggrafe " (to which
refers to Article 1 (2)) ", shall constitute an annex to the legal regime of the
payment services and electronic money, changing their designation to
"Calculation of own funds (referred to in Articles 31 and 33.-D)".
2-2-A Introductory part of the Annex referred to in the preceding paragraph shall have the following
essay:
" The calculation of the requirements of own funds referred to in Articles 31 and 33-D of the
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legal regime of payment services and electronic money takes place in
compliance with one of the methods described in this Annex.
Article 13.
Abrogation standard
1-It is repealed the Decree-Law No. 42/2002 of March 2.
2-Are repealed Article 2 (2), para. l) of Article 3 and ( c) of the Article 5 (5)
167. of the General Regime of Credit Institutions and Financial Societies, approved
by Decree-Law No. 298/92 of December 31.
3-It is repealed Article 8 (5) of the legal regime regulating access to the activity of the
payment institutions and the provision of payment services, approved by the
Decree-Law No. 317/2009 of October 30.
Article 14.
Entry into force
The present decree-law shall come into force (...).
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ANNEX
(referred to in Article 11)
LEGAL REGIME FOR PAYMENT AND CURRENCY SERVICES
ELECTRONICS
Title I
General and introductory provisions
Article 1.
Object
1-The present legal regime regulates access to the activity of payment institutions and
the provision of payment services.
2-The present legal regime still regulates access to the activity of currency institutions
electronic and the issuance of electronic money.
Article 2.
Definitions
For the purposes of this legal regime, it is understood to be:
a) "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 the issuer of electronic money; or
ii) If the provider of the payment service or the currency issuer
electronic does not have, under its national law, any headquarters
social, the member state in which its central administration is located.
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b) "State member state" the member state, distinguished from the member state
of origin, in which a payment service provider or an issuer of
electronic money has an agent, a branch office or where he provides services of
payment or issue or distributes electronic money;
c) "Payment services" the activities listed in Article 4;
d) "Electronic currency", the monetary value stored electronically, inclusive
in a magnetic form, represented by a credit on the issuer and issued after
receipt of bank notes, currencies and the scriptural currency, to effect operations of
payment within the meaning of paragraph (g) of this Article and which is accepted per person
natural or collective other than the issuer of electronic money;
e) "Payment institutions" the legal persons to whom it has been granted
authorization, pursuant to Article 10, to provide and perform services of
payment in the whole of the European Union;
f) "Electronic currency institutions" the legal persons to whom it has been
granted permission, pursuant to Article 10, to issue electronic money;
g) "Payment operation" the act, practiced by the payer or the beneficiary, of
deposit, transfer or raise funds, regardless of any
underlying obligations between the payer and the beneficiary;
h) "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;
i) "Ordering" a natural or legal person who holds a payment account
and that authorizes a payment order from that account, or, in the absence of
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account of payment, the natural or legal person issuing an order of
payment;
j) "Beneficiary" means a natural or legal person who is the intended recipient of the
funds that have been the subject of a payment transaction;
k) "Payment provider of payment services" the entities listed in Article 7;
l) "Issuers of electronic money" the entities listed in Article 7;
m) "User of payment services" a natural or legal person who uses
a payment service at the title of payer, of beneficiary or in both
qualities;
n) "Consumer" means a natural person who, in the contracts of payment services and
in the contracts concluded with the issuers of electronic money covered by the
present legal regime, acts with objectives alhedto its activities
commercial or professional;
o) "Framework Contract" a contract for the provision of payment services governing the
future execution of individual and successive payment operations and which may
enunciate the obligations and conditions for the opening of a payment account;
p) "Sending funds" a payment service involving the receipt of funds
of an 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 atue on account of the beneficiary, and the receipt of such funds by
account of the beneficiary and the respective provision of the latter;
q) "Payment account" an account held on behalf of one or more users of
payment services, which is used for the execution of operations of
payment;
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r) "Funds" bank notes and currencies, scriptural currency and electronic currency as per
defined in the paragraph d ) of this article;
s) "Order of payment" any statement given by an ordinator or a
beneficiary to its payment service provider requiring the execution of
a payment transaction;
t) "Data-value" the reference date used by a service provider of
payment for the calculation of interest on the funds debited or credited in a
payment account;
u) "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;
v) "Authentication" a procedure that allows the service provider of
payment check the use of a specific payment instrument,
in particular the personalized security devices;
w) "Reference interest rate" the interest rate used as a basis of calculation of the
interest to be charged, which must come from a source accessible to the public and which
can be verified by both parties in a payment service contract;
x) "Unique Identifier" the combination of letters, numbers, or specified symbols
to the user of the payment service by the payment service provider,
that the user of the payment service must provide to identify
unmistakably the other user of the payment service and the respective account
of payment, with a view to a payment transaction;
y) "Agent" a natural or legal person who provides payment services in
name of a payment institution or a currency institution
electronics;
z) "Instrument of payment" any personalized device or set of
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procedures agreed upon between the user and the provider of the service of
payment and to which the user of payment services scrapes to issue a
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;
ab ) "durable support" any instrument that allows the user to
payment services store information that is personally
directed, in such a way that this information can be consulted
subsequently, for a period of time suitable for the purposes of
referred to information and to allow the exact reproduction of the information
stored;
ac) "Microenterprise" a company that, at the time of the conclusion of the contract of
provision of payment services, be a company in accordance with
constant definition of Art. 1 and paragraphs 1 and 3 of Article 2 of the Annex to
Commission Recommendation No. 2003 /361/CE of the Commission of May 6;
ad) "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 transaction finds itself open for the execution of a
payment operation;
ae) "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 payment service provider of the beneficiary or to the provider of
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payment services of the payer itself;
af) "Branch" a separate establishment of the central administration that is a part
of an institution of payment or an electronic money institution,
devoid of legal personality and who performs directly all or
some of the operations inherent in the activity of those institutions, being that
all establishments set up in the Country by an institution with a registered office
in another member state are considered a single branch;
ag) "Group" related companies to each other on the terms under which the Code of
Commercial Societies characterize this type of relationship, regardless of
the respective seats to be located in Portugal or abroad;
ah) "relevant operational function", the function whose failure or failure can
severely damage compliance, on the part of an institution of
payment or an institution of electronic money, of the conditions of
authorization set out in this legal regime, its results
financial, their soundness or the continuity of their payment services.
ai) "Average value of electronic currency in circulation", the average of the total value of the
financial liabilities associated with the electronic currency issued at the end
of each day during the last six months, calculated on the first day of each
month and applied to that month.
Article 3.
Scope of application
1-The present legal regime shall apply to the activity of the payment institutions with
registered in Portugal and the respective agents and branches, as well as the provision of
payment services in Portugal by the legally entitled entities, without
injury to the provisions of paragraphs 3 and 4.
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2-The present legal regime is still applicable to the activity of currency institutions
electronics with registered office in Portugal and the respective agents, branches and too
representatives, as well as the issuance, distribution and reimbursement of electronic money
in Portugal by the legally qualified entities.
3-Title III, with the exception of Article 84, is only applicable when both
providers of payment services, or the single provider, are situated at
Portugal or when one of the providers is located in Portugal and the other in another
Member state of the European Union.
4-Title III shall apply to payment services 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, well
like all the operations necessary for the management of that account;
b) Services that allow to raise cash from a payment account, well
like all the 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 of the user or other payment service provider, such
how to:
i) The execution of direct debits, including those of a punctual character;
ii) The execution of payment transactions through a card of
payment or a similar device;
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iii) The execution of transfers to credit, including orders of domiciliation.
d) Execution of payment transactions in connection with which the funds are
covered by a line of credit granted to a user of services from
payment, such as:
i) The execution of direct debits, including those of a punctual character;
ii) The execution of payment transactions through a card of
payment or a similar device;
iii) The execution of transfers to credit, 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
for the execution of the payment transaction is communicated through any
telecommunication, digital or computer devices, and the payment is
carried out to the operator of the network or the telecommunications system or
informatics, acting exclusively as an intermediary between the user of the
payment service and the supplier of the goods and services.
Article 5.
Exclusions
1-The present legal regime 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;
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c) Physical transport on a professional title of banknotes and coins, including the
collection, processing and delivery of the same and the recirculation of banknotes and
currencies;
d) Payment transactions consisting of the collection and delivery of cash to
non-professional title, in the frame of a non-profit activity or of
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, through 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
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 Relating to Cheque;
ii) Cheques on paper support analogous to those referred to in sub-paragraph i) and
governed by the laws of member states that 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 the Letters and
Livancers;
iv) Withdrawals on paper support analogous to those referred to in sub-paragraph iii) and
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governed by the laws of member states that are not parties to the
Geneva Convention of June 7, 1930, which establishes a Law
Uniform Relative to Letters and Livrans;
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
of 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,
on the other, without prejudice to the provisions of Article 39;
i) Payment transactions relating to services linked to securities, including
the distribution of dividends and income or other distributions, or the
reimbursement or sale of securities made by persons referred to in
point ( h ) or by investment firms, credit institutions, bodies of
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 protection services of trust and privacy,
in the authentication of data and entities, in the provision of communication networks and
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informatics or in the supply and maintenance of terminals and devices
used for payment services;
k) Services based on instruments that can be used to acquire goods
or services only in the premises used by the issuer or under a
trade agreement concluded with the issuer in the context of a restricted network of
providers of services or in relation to a restricted range of goods and services;
l) 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 it is 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;
m) Payment transactions carried out between payment service providers,
your agents or branches by your own account;
n) Payment transactions between a parent company and its subsidiaries, or between subsidiaries
of the same parent company, without any intermediation of a service provider
of payment that is not a company of the same group; and
o) Cash withdrawal services offered by providers through boxes
payment automatics, which act on behalf of one or several issuers of
cards, and are not party to the framework contract with the customer withdrawing money from the
payment account, on the condition that these providers do not secure others
payment services listed in Article 4 of this Regime.
2-The present scheme is also not applicable to the monetary value stored in the
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instruments referred to in paragraph k ) of the preceding paragraph, nor to the monetary value
used to effect the payment transactions referred to in para. l) of the same
number.
Article 6.
Competent authority
1-Compete to the Bank of Portugal to exercise prudential and behavioural supervision in the
scope of this legal regime, by which it shall be, in particular:
a) Granting permission for the constitution of payment institutions and
electronic money institutions and revoke it in the cases provided for in the law;
b) Scrutinizing the fulfillment of the provisions of this legal regime;
c) Issue the regulatory standards that show necessary for the application of their
provisions;
d) Appreciate the complaints made by users of services of
payment and by electronic money holders;
e) To initiate processes of counterordinance and to apply the respective sanctions.
2-In the exercise of its supervisory powers, can the Bank of Portugal, in
special:
a) Require payment service providers and currency issuers
electronic the submission of any information it deems necessary to the
verification of compliance with the standards of this legal regime;
b) Carry out inspections of the establishments of the service providers of
payment and issuers of electronic money, as well as those of
respective agents and branches and, still, to the establishments of third parties to
who have been committed relevant operational roles concerning the
provision of payment services or the issuance of electronic money;
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c) Issue specific recommendations and determinations in order to be sane the
irregularities detected.
3-Without prejudice to the competences conferred upon it by the General Regime of the
Credit Institutions and Financial Societies (RGICSF), the Bank of Portugal exercises
your prudential supervisory competencies in relation to payment institutions
and electronic money institutions with registered offices in Portugal, including the respective
agents and branches established abroad, as well as in relation to the branches in
Portugal of electronic money institutions with headquarters outside the European Union.
4-The Bank of Portugal oversees compliance with Title III standards in what if
refers to the provision of payment services in Portugal by the entities
legally entitled to exercise such activity, including through agents and branches,
with the exception of services provided in regime of free provision of services by
entities authorized in other Member States.
5-The Bank of Portugal oversees compliance with Title III-A as far as the
issuance, distribution and refund of electronic money in Portugal by the
legally entitled entities to carry out such activity, including through branches and
natural or legal persons enabled to distribute and repay electronic money
in the name and under the responsibility of electronic money institutions, with the exception
of the activities carried out in regime of free provision of services by entities
authorized in other Member States.
6-Article 12 of the RGICSF is applicable, with the necessary adaptations, to the decisions of the
Bank of Portugal approved in the framework of this legal regime.
7-Article 12 of the RGICSF shall apply to the time limits set out in this Schor
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legal.
8-In the application of competition defence legislation to providers of services of
payment and issuers of electronic money and their business associations, well
as to payment systems, articles 87 and 88 are also applicable.
RGICSF, with the necessary adaptations.
9-The rules on advertising provided for in Article 77-C of the RGICSF shall apply to the
payment service providers and electronic money issuers, the
respective agents and branches and to the natural or legal persons empowered to
distribute and reimburse electronic money, as well as to the business associations of the
providers and issuers, by having the Bank of Portugal exercise in relation to such
entities the powers provided for in Article 77-D of the same general scheme.
Title II
Providers of payment services and electronic money issuers
CHAPTER I
Access and general conditions of the activity
Article 7.
Providers of payment services
Principle of exclusivity
1-You can only provide the payment services referred to in Article 4 as follows
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entities:
a) The credit institutions with registered office in Portugal whose object is to understand the
exercise of that activity, in accordance with legal and regulatory standards
applicable;
b) The payment institutions with registered office in Portugal;
c) The electronic money institutions with registered office in Portugal;
d) Credit institutions with registered offices outside of Portugal legally enabled the
exercise activity in Portugal;
e) The electronic money institutions and payment institutions with headquarters
in another member state of the European Union, under the terms of this scheme
legal;
f) The branches of electronic money institutions with headquarters outside the European Union,
under the terms of this legal regime;
g) The concessionary entity of the universal postal service;
h) The State, the Autonomous Regions and the departments and bodies of the administration
direct and indirect of the State, when acting in the exercise of public powers of
authority;
i) The ECB, the Bank of Portugal and the remaining national central banks, when not
act in the quality of monetary authorities or the exercise of powers
public of authority.
2-The entities to which the points are referred d ), e) and f) of the previous number only can
provide the payment services you are authorized to provide in your country of
origin.
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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 the
your activity.
4-Payment institutions with registered office in another member state may use the firm or
denomination they use in their home member state, according to provisions
in Art. 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 7-The
Issuers of electronic money
1-Can only issue electronic money the following entities:
a) The credit institutions with registered office in Portugal whose object is to understand the
exercise of that activity, in accordance with legal and regulatory standards
applicable;
b) The electronic money institutions with registered office in Portugal;
c) Credit institutions with registered offices outside of Portugal legally enabled the
exercise activity in Portugal;
d) The electronic money institutions with registered office in another member State of the Union
European, under the terms of this legal regime;
e) The branches of electronic money institutions with headquarters outside the European Union,
under the terms of this legal regime;
f) The State, the Autonomous Regions and the departments and bodies of the administration
direct and indirect of the State, when acting in the exercise of public powers of
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authority;
g) The ECB, the Bank of Portugal and the other national central banks,
when they do not act in the quality of monetary authorities or in the exercise
of other public powers of authority.
2-The use of the expression "institution of electronic money" stay exclusively reserved to
these entities, which will be able to include it in your firm or denomination or use in the exercise
of your activity.
3-Electronic money institutions with registered office in another member state may use the
firm or denomination they use in their member state of origin, according to
provisions of Article 46 of the RGICSF, applicable with the necessary adaptations.
4-The provisions of Article 126 of the RGICSF shall apply, with the necessary adaptations, in
suspected case of suspected emitting electronic money by non-enabled entity.
Article 8.
Institutions of payment
1-Payment institutions are providers of payment services, subject to the
present legal regime, which shall have the object of the provision of one or more services of
payment.
2-Payment institutions may still exercise the following activities:
a) Provision of closely related operational and ancillary services with
payment services, in particular provision of guarantees of execution of
payment transactions, foreign exchange services and guard services,
storage and processing 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
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d) Activities included in the legal object of foreign exchange agencies, in compliance
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 services of
payment, not constituting receipt of deposits or other reimbursable funds in the
meaning of Article 2 (1) of the RGICSF.
4-Payment accounts held together from payment institutions can only be
used for the provision of payment services.
5-[ Revoked ].
6-It shall apply to the payment institutions with registered office in Portugal the scheme of
corrective and interim administration intervention provided for in articles 139 to 145 of the
RGICSF, with the necessary adaptations.
7-A dissolution and the settlement of payment institutions with registered office in Portugal,
including branches established in other member states, which have by
exclusive object to the provision of payment services, or still the activities
referred to in points a ), b ) and d ) of paragraph 2, shall be subject, with due adaptations, to the
scheme provided for in Chapter II of Decree-Law No 199/2006 of October 25, concerning
to the liquidation of credit institutions and financial corporations.
8-Payment institutions that simultaneously exercise the activities to which if
refers to point c) of paragraph 2 shall be subject to the provisions of the Insolvency Code and
Recovery of Enterprises, with the specialities set out in the following numbers.
9-The Bank of Portugal may apply for the declaration of insolvency if it occurs
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
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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 its head to the Bank of Portugal
exercise, in the insolvency proceedings, the skills conferred upon it by the
articles 12 and 14 of the Decree-Law No. 199/2006 of October 25.
Article 8-The
Electronic money institutions
1-Electronic money institutions are legal persons, subject to the present scheme
legal, which have the object of issuing electronic money.
2-Electronic currency institutions may still exercise the following activities:
a) Provision of the payment services referred to in Article 4;
b) Grant of credits related to the payment services referred to in the
points d) , e) and g ) of Article 4, in accordance with the conditions laid down in the article
9.
c) Provision of closely related operational and ancillary services with the
issuance of electronic money or with payment services, specifically the
provision of guarantees of execution of payment transactions, foreign exchange services
and guard services, storage and processing of data;
d) Exploitation of payment systems, without prejudice to the provisions of Article 39; and
e) Various professional activities of the issuance of electronic money, in
compliance with the legal provisions applicable to these activities.
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3-Electronic money institutions may not receive from the public deposits or other
refundable funds within the meaning of Art. 2 (1) of the RGICSF.
4-The funds received by the electronic money institutions and from the
holders of electronic money must be exchanged without delay by currency
electronic, not constituting receipt of deposits or other reimbursable funds in the
meaning of Article 2 (1) of the RGICSF.
5-Article 8 (3) and (4) shall apply to the funds received by the institutions of
electronic money with a view to the provision of payment services referred to in the article
4. which are not associated with the issuance of electronic money.
6-It shall apply to electronic money institutions with registered office in Portugal the regime of
corrective and interim administration intervention provided for in articles 139 to 145 of the
RGICSF, with the necessary adaptations.
7-A dissolution and the liquidation of electronic money institutions with registered office in Portugal,
including branches established in other member states, which have per object
exclusive the issuance of electronic money, or still the activities referred to in points a ),
b ), c) 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-Electronic currency institutions that simultaneously exercise the activities to which
refers to point ( and ) of paragraph 2 shall be subject to the provisions of the Insolvency Code and
Recovery of Enterprises, with the specialties set out in paragraphs 9, 10 and 11 of the
article 8, applicable, where necessary, with due adaptations.
Article 9.
Granting of credit
1-Payment institutions and electronic money institutions can only grant
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credit in the event that this is related to the payment services referred to in the
points d ), and ) and g ) of Article 4 and provided that the following are fulfilled
conditions:
a) The credit shall be ancillary and granted exclusively in the context of the implementation
of the payment transaction;
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 limit never exceeding 12 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 or received in exchange for the issuance of
electronic currency;
d) The institution of payment and the institution of electronic money shall have, the
all the time, from own funds appropriate to the volume of credit granted,
in accordance with the determinations of the Bank of Portugal.
2-The provisions of this legal regime shall be without prejudice to the legal provisions applicable to the
credit to consumers.
3-The payment institutions and the electronic money institutions that grant
credit under this article shall report to the Central of Responsibilities
of Credit, managed by the Bank of Portugal, the elements of information relating to the
operations effecting, in the terms and for the purposes set out in the regulatory legislation
of the centralization of credit responsibilities.
Article 9-The
Duties of abstention, registration and communication of operations with entities seated in
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jurisdiction offshore
The duties of abstention, registration and communication of operations with seated entities
in jurisdiction offshore , provided for in Article 118-A of the RGICSF, they shall apply to the
providers of payment services listed in Article 7 (1).
CHAPTER II
Authorization and registration of payment institutions and currency institutions
electronics
Article 10.
Authorization and general requirements
1-A constitution of payment institutions and electronic money institutions
depends on authorisation to be granted, on a case by case, by the Bank of Portugal.
2-The payment institutions and electronic money institutions based in
Portugal must meet the following conditions:
a) Adopt the form of anonymous society or by quotas;
b) Having the minimum capital corresponding to the services to be provided, in the terms of the 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
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solid administrative and accounting;
g) Having internal control mechanisms to comply with the obligations
in relation to the 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 is instructed with the following elements:
a) Project of contract of society or amendment to the contract of society, of
where it consists of an express reference to payment services, from among the
listed in Article 4, which the institution of payment or the institution of
electronic money 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 to third parties to whom
hajam have been committed operational functions, and the predictive accounts for each
one 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 deposited in a credit institution the amount of the capital
minimum required under Rule 29;
d) Identity and the respective supporting elements of the persons who hold,
directly or indirectly, qualified shareholdings within the meaning of Article 7 (7)
13. of the RGICSF, as well as the size of the respective shareholdings and evidence of the
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your suitability, taking into account the need to ensure sound management and
prudent of the payment institution;
e) A description of the procedures designed to ensure the protection of funds
of the users of the payment services and the currency carriers
electronic, 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
devices, procedures and mechanisms referred to be complete and
proportional to the nature, the level and the complexity of the institution's activities
of payment;
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
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 institution are organised
applicant, specifically, where appropriate, description of the intended use
of the agents and of the branches and a description of the provisions in respect of
provision of services by third parties, as well as the respective participation in
system of national or international payments;
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i) Supporting elements of the identity of directors and responsible persons
by the management of the payment institution or the institution of electronic money and,
where appropriate, of the persons responsible for the management of the service activities
of payment and electronic money issuance of the requesting institution, well
as proof that they are elderly people and possess the knowledge and the
adequate experience to perform payment services or issue currency
electronic in the terms of Article 12;
j) Where appropriate, the identity of the official reviewers of accounts and of the societies of
statutory auditors, within the meaning of Directive No 2006 /43/CE, of the
European Parliament and of the Council of May 17;
k) Address of the central administration of the institution.
2-For the purposes of the and ), f) and h) from the previous number, the applicant institution must
present a description of the mechanisms it created in terms of auditing and
organization with a view to taking all reasonable steps to protect interests
of its users and guarantee the continuity and reliability of the provision of the services
of payment.
3-Applies the provisions of Article 17 (17) (17) of the RGICSF, with the necessary
adaptations, regarding the information to be submitted in relation to the government of the
society and with regard to founding shareholders who are legal persons
holders of qualifying stakes in the institution to constitute.
Article 12.
Suitability and professional experience of the members of the governing bodies,
administration and surveillance
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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 and institutions of
electronic currency.
2-With respect to payment institutions and electronic money institutions that
simultaneously exercise the activities referred to respectively in paragraph (c) of paragraph 2
of Article 8 and in the e) of Article 8 (2)-A, the requirements concerning the experiment
professional only apply to persons to whom it kayba to ensure the day-to-day management of the
payment activity and electronic money issuance.
Article 13.
Separation of activities
1-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 alhedances to services
of payment exercised or to be exercised by the applicant to prejudice or may
harm:
a) The financial soundness of the payment institution; or
b) The appropriate exercise of the supervisory functions by the Bank of Portugal.
2-The provisions of the preceding paragraph shall apply, with the necessary adaptations, to the authorisation
of electronic money institutions, and may in this case the commercial society
previously said to have per exclusive object not only the issuance of electronic money,
as also the provision of the payment services listed in Article 4.
Article 14.
Decision
1-A Decision on the application for authorisation shall be notified to those interested in the time limit
of 3 months from the receipt of the application or, if it is the case, to the receipt of the
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additional information requested from applicants, but never after
decorations 12 months on the date of the initial delivery of the order.
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 and the elements of the application
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-Without prejudice to the provisions of Articles 33--E and 33.-G to 33.-I, the remaining amendments
statutorily and, in general, changes to the elements that instruct the application indicated in the
n Article 11 (1), they 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 payment institutions and institutions
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of electronic money the provisions of Article 21 of the RGICSF, constituting equally
expiry reason the suspension of the activity for a period of more than six months.
2-It shall apply to the revocation of the authorization of the payment institutions and institutions
of electronic money, with the necessary adaptations, the provisions of articles 22 and 23.
of the RGICSF, considering the further ground of revocation of the authorization to
the circumstance of the institution constituting a threat to the stability of the system of
payments for the fact that you continue the activity of providing payment services.
3-Constitui, likewise, grounds for revocation of the authorization, the serious violation of the
duties laid down in Law No. 25/2008 of June 5.
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, the merger, the spin-off and the voluntary dissolution of institutions of
payment and electronic money institutions.
Article 18.
Agents
1-Payment institutions and electronic money institutions can provide
payment services through 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 and electronic money institutions with registered office in Portugal
must notify the Bank of Portugal in advance of 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;
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c) Identity of the 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 can take action
seeking to verify the information.
4-The Bank of Portugal refuses 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 and electronic money institutions shall ensure
that the agents who act on their behalf inform the users of services of that fact
of payment.
Article 18-The
Distribution and reimbursement of electronic money by representatives of institutions of
electronic currency
1-Electronic money institutions can distribute and refund electronic money
through natural or legal persons acting on their behalf and under their
responsibility.
2-The agents to whom the electronic money institutions have availed to provide services
of payment under Art. 18 may also distribute and refund currency
electronic in the name and under the responsibility of them.
3-It is prohibited to the representatives mentioned in paragraphs 1 and 2 to issue electronic money.
4-Electronic money institutions must communicate in advance to the Bank of
Portugal the name and address of the entities authorised to distribute and refund currency
electronic on your behalf and will immediately transmit you any change to those
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elements of information.
5-Electronic money institutions assume responsibility for the whole of
acts of the persons authorized to act in their representation pursuant to this article.
Article 19.
Provision of services by third parties
1-Payment institutions and electronic money institutions may commit the
third parties the operational functions relating to payment services or the issuance of
electronic currency.
2-The Bank of Portugal must be previously informed of the intention to commit the
third parties operational functions relating to payment services or issuance of
electronic currency.
3-A institution that commits to third parties the performance of relevant operational functions
must safeguard the quality of internal control and ensure that the Bank of Portugal
has conditions to verify compliance with all applicable legal provisions.
4-A The commission to third parties of relevant operational functions shall comply with the following
conditions:
a) The responsibilities of senior executives may not be committed to third parties;
b) The institution shall be responsible for compliance with the provisions laid down in the
present regime; and
c) The institution is still obliged to comply with the conditions of authorisation.
Article 20.
Subjection to registration
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1-Payment institutions and electronic money institutions may not initiate the
your activity as long as you do not find yourself in special registration at the Bank of
Portugal.
2-The registration covers all institutions enabled to provide payment services and the
issuing electronic currency, as well as the respective agents and branches.
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 and electronic money institutions with
to be registered in Portugal and the respective agents and branches.
2-The registration of payment institutions shall still include elements relating to the
payment services that the institution is authorized to provide.
3-Are publicly accessible and regularly updated on the website of the Bank
of Portugal the following elements:
a) The identification of payment institutions and currency institutions
authorised electronics and the respective agents and branches; and
b) The payment services understood in the authorization of the institutions of
payment.
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
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Right of establishment and freedom to provide services of the institutions of
payment or electronic money institutions
Article 23.
General requirements
1-A payment institution or the electronic money institution with registered office in Portugal
wishing to provide services for the first time in another member state, specifically
upon the establishment of a branch office or the hiring of agent, must notify
previously this fact the Bank of Portugal, specifying the following elements:
a) Country where it is proposed to establish branch, hire agent or, in general, provide
payment services or issue electronic money;
b) Name and the address of the institution;
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 on the territory of the State member 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
host member.
3-In the event of modification of the elements set out in points b) a e) of paragraph 1, the institution
shall communicate it, in writing, to the Bank of Portugal and to the competent authority of the State
host member.
4-For monitoring the requirements set out in paragraph 1, the Bank of Portugal may carry out
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inspections in loco in the host member state, as well as delegating to its realization,
in the terms provided for in Article 34 (4).
Article 23-The
Distribution and reimbursement of electronic money in another member state
In the case of an electronic money institution with a registered office in Portugal
distribute or reimburse electronic money in another member state through
representatives in accordance with Article 18, the provisions of Article 23 shall apply, with the
necessary adaptations.
Article 24.
Registration
If there is no ground for refusal to register the branch office or agent in the register of
in accordance with the provisions of Article 21, the Bank of Portugal informs them in advance
competent authorities of the State host member of its intention to register the
branch or the agent and takes into account the opinion of these entities.
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 that it is
to 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 of Parliament
European and Council, of October 26, related to the project of hiring
an agent or opening of a branch office, or that such contracting or opening up may
increase the risk of money laundering or financing operations from the
terrorism, the Bank may refuse the registration of the branch office or agent, or cancel it if it already
has been carried out.
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Article 26.
Activity in Portugal of institutions with registered offices in other member states
1-Payment institutions and electronic money institutions authorized in another
Member state of the European Union, which do not benefit respectively from the
derogation set out in Article 26 of Directive No 2007 /64/CE of the Parliament
European and of the Council of November 13 and of the derogation set out in Article 9.
of Directive 2009 /110/CE, of the European Parliament and of the Council, may provide
services in Portugal, either through the opening of branches or the hiring of
agents, whether in a free provision of services, provided that such services are
covered by the authorization.
2-Should the Bank of Portugal have sufficient grounds to suspect that it was, or that
is being, 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 of Parliament
European and Council, of October 26, related to the project of hiring
an agent or opening of a branch office in Portuguese territory, or that such
hiring or opening up may increase the risk of bleaching operations
capitals or financing of terrorism, the Bank informs the authorities
competent from the member state of origin.
3-Institutions authorized in another member state may start their activity in
Portugal as soon as the Bank of Portugal receives from the competent authority of the State
member of origin the communications provided for in Article 23 (2) and in 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
institution shall communicate it, in writing, to the Bank of Portugal and to the competent authority
of the member state of origin.
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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.
Article 27-A
Branches of third countries
To the establishment in Portugal of branches of electronic money institutions
authorized in countries that are not members of the European Union is applicable
in articles 57 to 59 of the RGICSF, with the necessary adaptations.
CHAPTER IV
Supervision of payment institutions and electronic money institutions
SECTION I
Prudential standards
SUBSECTION I
Institutions of payment
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.
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Article 29.
Minimum capital
1-Portugal-based payment institutions must, at all times, own
capital not less than:
a) € 20000, for the institutions that provide only the payment service
indicated in the paragraph f) of Article 4;
b) € 50000, for the institutions that provide the payment service indicated in the
item (g) of Article 4;
c) € 125000, for the institutions that presage any of the payment services
indicated in the points a ) a and ) 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 the Directive No 2006 /48/CE of the Parliament
European and the Council of June 14.
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 the
fixed by warning from the Bank of Portugal.
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3-Checking of the decrease in own funds below the limit set out in paragraph 1, the
Bank of Portugal may, whenever the circumstances so warrant, grant 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, it 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 activities
distinct from 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 described methods
in the Annex to this legal regime entitled "Calculation of own funds".
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 detains an
amount of own funds upper or lower in 20%, at most, upstream
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that would result from 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
payment institutions affect the exploitation of their activity of provision of
payment services a sufficient level of own funds, specifically when
the activities referred to in Article 8 (2) undermine or may impair the soundness
financial institution of the payment institution.
Article 32.
Requirements for protection of funds
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) Do not, at any time, be 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) They 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
have been delivered to the beneficiary or transferred to another provider of
payment services, up to the end of the business day following that in which
have been received; and
iii) Be segregated under the provisions of paragraph 3, in the interests of the
users of the payment service in question, from the credits of others
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creditors, in particular in the event of a settlement of the payment institution.
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.
2-For the purposes of the provisions of the sub-paragraph iii ) of the paragraph a ) of the previous number, in case of
settlement of the payment institution, the amounts delivered by the users of
payment services cannot be apprehended for the mass in liquidation,
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 is also subject to the established requirements
in paragraph 1.
4-In case the fraction provided for in the preceding paragraph is variable, or it cannot be determined
in advance, the payment institution shall ensure compliance with the
protection requirements of funds on the basis of a representative fraction that the
payment institution 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
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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 triggering, for the purposes of the provisions of the
point ( b ) of paragraph 2.
Article 33.
Accounting and legal review of accounts
1-With the exception of payment institutions that presage any of the services of
payment listed in Article 4 and, at the same time, exercise other activities to the
shelter from the point c ) of Article 8 (2), shall apply to the payment institutions as
accounting standards set out in 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
n Article 8 (2)
3-Accounting information referred to in the preceding paragraph shall be the subject of
audit or legal certification report to be drawn up by an official auditor or
by society of official reviewer of accounts.
4-To the official reviewers of accounts or company of official reviewer of accounts at the service
of a payment institution and the external auditors who, by legal requirement,
you provide an institution of payment auditing services, the provisions of the
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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.
SUBSECTION II
Electronic money institutions
Article 33-The
General principle
Electronic money institutions must apply the funds they dispose of in such a way
ensure, at all time, adequate levels of liquidity and creditworthiness.
Article 33-B
Minimum capital
1-The electronic money institutions with a registered office in Portugal must, at all times,
have capital not less than € 350000.
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 the Directive No 2006 /48/CE of the Parliament
European and the Council of June 14.
3-Electronic money institutions shall constitute special reserves intended for
to strengthen the net situation or to cover damages that the profit and loss account cannot
support.
Article 33-C
Own funds
1-The own funds of the electronic money institution shall not be lower than the
value of the minimum capital required under the previous article or to the amount that
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result from the application of the following article, whicheter is higher.
2-The rules on the composition of the own funds of electronic money institutions
are those fixed by notice of 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 the circumstances so warrant, grant the
institution a limited time frame for them to regularize the situation.
4-In case the institution of electronic money belongs to the same group of another institution
of electronic currency, credit institution, institution of payment, society
financial or insurance company, multiple use of elements is not permitted
eligible for own funds.
5-A multiple use of the elements eligible for own funds is also not
permitted in relation to electronic money institutions that exercise other activities
distinct from the issuance of electronic money or the provision of payment services
indicated in Article 4 para.
6-When an electronic money institution pursuits other distinct activities of the
issuance of electronic money or the provision of the payment services indicated in the
article 4, which are also subject to requirements of own funds, the institution
of payment must additionally respect such requirements.
Article 33-D
Requirements of own funds
1-The own funds of electronic money institutions must, in permanence, be
equal to or higher than the amount that results from the sum of the requirements set out in the
following numbers.
2-With regard to electronic money issuance activity, the requirements of
own funds of electronic money institutions must correspond at least
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at 2% of the average value of the electronic currency in circulation.
3-With regard to the activity of the provision of payment services referred to in the
article 4 not associated with the issuance of electronic money, the requirements of funds
own from the electronic money institutions are those that result from the application of a
of the three methods described in the Annex to this legal regime entitled " Calculation of the
own funds ", applying the provisions of Article 31 (2) and (4) of this scheme.
4-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 electronic money institution detains an
amount of own funds upper or lower in 20%, at most, upstream
that would result from the application of paragraph 2 of this article.
5-Notwithstanding the provisions of the preceding paragraphs and in Articles 33-B and 33.-C, the Bank
of Portugal may adopt the procedures laid down in Article 6 in order to ensure
that electronic money institutions affect the exploitation of their activity of
issuance of electronic money and the provision of payment services a level
sufficient funds of its own, specifically when the activities referred to in paragraph 2
of Article 8-prejudging or may prejudice the financial soundness of the institutions.
Article 33-And
Requirements for protection of funds
1-Electronic money institutions shall ensure the protection of funds that
have been received in exchange for electronic money, applying with due
adaptations, the provisions of Article 32, without prejudice to the specialities set out in the
numbers 3 a to 7.
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2-To the activity of the provision of payment services referred to in Article 4 no
associated with the issuance of electronic money applies to the provisions of Article 32.
3-The funds received in the form of payment by a non-payment instrument
have to be protected until they are credited to the payment account of the institution of
electronic currency or by another means made available to the same institution, of
agreement with the provisions on the period of implementation set out in the present
legal regime. In any case, the institutions must ensure the protection of these
funds within five working days, from the date of issuance of the electronic currency.
4-For the purpose of the application of the procedures laid down in the sub-paragraph ii) of the paragraph a ) from the
n Article 32 (1) with regard to funds that have been received in return
of electronic money, consider themselves as safe and low-risk assets the assets that
belong to one of the categories listed in Table 1 of point 14 of Annex I to
Directive 2006 /49/CE, of the European Parliament and of the Council of June 14, 2006,
on the appropriateness of the own funds of investment firms and the
credit institutions, in respect of which the requirement of own funds for risk
specific do not exceed 1.6%, but with the exclusion of other eligible elements
referred to in point 15 of the same Annex.
5-Considered, still, safe and low-risk assets the units of participation in the
capital of collective investment bodies in securities (UCITS) that
only invist in the assets referred to in the preceding number.
6-In exceptional and duly justified circumstances, the Bank of Portugal may,
on the basis of an assessment of safety, maturity, value and other
risk factors of the assets referred to in paragraphs 4 and 5, determine which of these assets do not
meet the safety and low risk requirements.
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7-For the purposes of paragraphs 1 and 2, the Bank of Portugal may determine which of the
procedures provided for in Article 32 (1) shall be used by the institutions of
electronic money to ensure the protection of the funds received.
8-Electronic money institutions must inform the Bank of Portugal in advance
of any relevant change they wish to adopt in respect of the protection of the
funds that have been received in exchange for electronic money.
Article 33-F
Accounting and legal review of accounts
The rules on accounting and legal review of accounts provided for in Article 33 apply.
to electronic money institutions, with due adaptations.
Article 33-G
Communication of the qualifying holdings, their increase and decrease
1-A natural or legal person who, directly or indirectly, intends to hold a
qualified participation within the meaning of Article 13 (7) of the RGICSF in a
electronic money institution must communicate in advance to the Bank of Portugal the
your project.
2-They must still be communicated in advance to the Bank of Portugal the acts involving
increase in a qualified participation, whenever they may result, depending on the
cases, a percentage that achieves or exceeds any of the thresholds of 20%, 30% or
50% of the capital or voting rights at the participating institution, or when this one if
turn into a subsidiary of the procuring society.
3-The Bank of Portugal may, under the terms of Article 102 of the RGICSF, declare
officiously the qualified character of any participation in the capital or the rights
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of a vote of an electronic money institution.
4-A celebration of the acts upon which the acquisition projects are realized
or increase in qualified participation, subject to prior communication in the terms of the
Paragraphs 1 and 2, shall be communicated to the Bank of Portugal within 15 days.
5-A natural or legal person who intends to cease to hold a stake
qualified, or decreasing it in such a way that the percentage of the voting rights or the
capital of which it is holder shall be given down to below any of the thresholds referred to in paragraph 2,
or in such a way that the institution cede to be its subsidiary, must inform the
Bank of Portugal and communicate you the new amount of your participation.
6-If you check the reduction of a stake to a level below 10% of the capital or
of the voting rights of the participating institution, the Bank of Portugal will communicate to its
holder, within a maximum of 30 working days, considers that the participation therefrom
resulting in a qualified character.
7-The situation provided for in paragraph 5 shall apply, with due adaptations, to the provisions of paragraph 4.
8-The Bank of Portugal establishes, by notice, the elements and information that they must
follow up with the communication provided for in paragraphs 1 and 2.
9-If the communication carried out pursuant to this article is not properly
instructed, the Bank of Portugal informs the proposed acquirer, in writing, of the
elements or missing information.
Article 33-H
Assessment of the acquisition project or increase in qualified participation
1-The Bank of Portugal may object to the project of acquisition or increase of
qualified participation based on the provisions of paragraphs 1 and 2 of Article 103 of the
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RGICSF, duly adapted.
2-The Bank of Portugal informs the proposed acquirer of its decision within 60 days
useful as of the date of receipt of the communication provided for in paragraphs 1 and 2 of the article
previous or of the date response to the request for additional information to which they relate
the preceding Article 9 (9) and the following number, but never after 4 months have elapsed
after that first date.
3-The Bank of Portugal may request the proposed acquirer, at all time, elements
and supplementary information, as well as carry out the enquiries that you consider
necessary.
4-Should you decide to oppose the project, the Bank of Portugal:
a) Informs the proposed acquirer, in writing, of its decision and of the reasons that
substantiate, within 2 working days from the date of the decision and before the
term of the period provided for in paragraph 2;
b) It may disclose to the public the reasons that substantiate the opposition, by its
initiative or at the request of the proposed acquirer.
5-It is considered that the Bank of Portugal is not opposed to the project if it does not address the
deadline provided for in paragraph 2.
6-Articles 105 and 106 of the RGICSF are applicable, with the necessary adaptations, to
inhibition of voting rights in the institution of participating electronic money or in
entity that detains, directly or indirectly, voting rights in the institution of currency
electronic participates and, still, to the inhibition of voting rights exercised by the institution
participated in other institutions with which to find in domain relation, direct
or indirect.
Article 33-I
Communication by electronic money institutions
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1-Electronic money institutions communicate to the Bank of Portugal, as soon as they
have knowledge, the changes referred to in Article 33.
2-In April of each year, electronic money institutions communicate to the Bank of
Portugal the identity of its shareholders holders of qualified participations and the
amount of the respective shareholdings.
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
competencies set out in Article 6 and adopting the measures especially
provided for in 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 institution subject to its
supervision constitutes a commercial company that has the exclusive object to
provision of the payment services listed in Article 4 or, in the case of
electronic money institutions, the provision of these services and the issuance of currency
electronic, within the time limit for the effect to be fixed.
3-It is secondarily applicable to the supervisory activity of payment institutions and
of electronic money institutions, with the necessary adaptations, the provisions of the
RGICSF, in particular the standards set out in Articles 120, 127 and 128 of that
regime.
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4-The Bank of Portugal can carry out inspections in loco in the territory of the State member of
hosting or delegating such 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 office or an entity to
who have been committed operational roles, and shall have to this effect communicate,
if this is requested, all relevant information and, on its own initiative,
all essential information.
Article 35.
Institutions authorized in other member states
1-Payment institutions and electronic money institutions authorized in others
Member states and which provide services in Portugal, provided that they are subject to supervision
of the competent authorities of the countries of origin, are not subject to supervision
prudential of the Bank of Portugal.
2-Compete to the Bank of Portugal to collaborate with the competent authorities of the States
members of origin with regard to the supervision of branches, agents and third parties with
operational functions, which prestakes services in Portugal under the responsibility of the
institutions mentioned in the previous number.
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 they have informed of the
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Fact the Bank of Portugal, can carry out inspections in loco in Portuguese territory.
4-A 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 exchange, 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 by an agent, a branch or a
entity to whom operational functions have been committed, owing to that effect
communicate, if this is requested, all relevant information and, by its own
initiative, all essential information.
6-In the event of a revocation or expiry of the authorisation in the Member State of origin,
the provisions of 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 the Law
n. 25/2008 of June 5 and of the Decree-Law No. 125/2008 of July 21, in what if
refers to the supervision and monitoring of compliance with the standards set out in these
diplomas.
Article 36.
File
1-Without prejudice to other applicable legal provisions, specifically in the context of
prevention of money laundering or the financing of terrorism, the
payment institutions and electronic money institutions must maintain in
file the records of all payment operations and too much documentation
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on the provision of payment services during the minimum term of 5 years.
2-Electronic money institutions must still keep in file, in the terms and
by the time limit set out in paragraph 1, the registrations of all issuance operations, distribution
and refund of electronic money and too much documentation relating to these operations.
Article 37.
Professional secrecy and cooperation
1-The professional secrecy regime provided for in Articles 78 and 79 of the RGICSF shall apply
to payment institutions and electronic money 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 scheme
legal, the Bank of Portugal cooperates and exchanges information with the authorities of
supervision of the remaining member states and, where appropriate, with the Central Bank
European and the national central banks, as well as with other authorities
competent persons designated in the terms of the Community or National Law applicable to the
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
of liquidation;
b) Other relevant authorities designated pursuant to Directive No 95 /46/CE,
of the European Parliament and of the Council, of October 24, of the Directive
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n. 2005 /60/CE, of the European Parliament and of the Council of October 26 and of
other national or community diplomas applicable to providers of
payment services, such as those applicable to the protection of natural persons
with regard to the processing of personal data, as well as the
money laundering and the financing of 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 hinder access
as it exceeds what is necessary to prevent specific risks, such as the
risk of liquidation, operational risk and commercial risk, and to safeguard the
financial and operational stability 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:
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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:
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 linked a
effective control over the remaining ones;
c) To payment systems in which a single service provider of
payment, be it a singular entity or a group:
i) Act or you can act on the quality of payment service provider
both for the payer and the beneficiary and detain the
exclusive responsibility for the management of the system; and
ii) Licensees 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.
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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.
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 whole or in part, the provisions of this Chapter.
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4-This Chapter applies without prejudice to the provisions of the Decree-Law No. 133/2009, of
June 2.
5-A other legislation concerning the conditions for granting credit for consumption is
applicable in so far as it contains provisions not provided for in this chapter.
Article 41.
Other provisions in pre-contractual information
1-The provisions of this Title shall be without prejudice to any provisions containing
supplementary requirements on pre-contractual information.
2-In the situations covered by the Decree-Law No. 95/2006 of May 29, Articles 42,
47, 48, 52 and 53 of the present legal regime shall prevail over the provisions of the
articles 9, 11, paragraph 1, 13 and 14, with the exception of points (1) c) a h ), in Article 15, with
exception of points a ), b ) and c ) of paragraph 1 and paragraph 2, and still in Article 16, with the exception of
point ( 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 within this legal regime shall:
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.
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Charges of information
1-The provider of the payment service may not charge 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, however, agree on the
charging of charges for the provision of additional or more frequent information, or
by the transmission of information by communication routes other than those specified in the
framework contract, provided that the provision or transmission takes place 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 effectively borne by the provider of the payment service.
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 payment and currency instruments
low value electronics
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, which have
a cap on expenses of € 150 or allowing to store funds whose amount does not
exceed, in no situation, € 150:
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 features of the service, including the way the instrument of
payment may be used, the liability, charges invoiced and
other significant information required to make an informed decision,
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as well as the indication of the sources where, in an easily accessible manner,
you may be obtained any other information and conditions specified in the
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 of the
conditions of the framework contract under the terms set out 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
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, with, in any case, the
payment service provider must give the payer the possibility
of checking the amount of the accumulated funds.
SECTION II
Payment transactions of an isolated character
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Article 46.
Scope of application
1-A This section 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 the
make information available that has already been or should come to be communicated to the user
of the payment service pursuant to a framework contract with another provider of
payment services.
Article 47.
Pre-contractual general information relating to payment transactions of character
isolated
1-The payment service provider shall communicate the information and conditions
specified in Article 48 to the user of payment services before this stay
linked by a contract or proposal to provide payment service of
isolated character.
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 must be carried out on paper support or in any other support
lasting.
3-If the secluded payment service contract has been concluded, on request
of the user of the payment service, through a means of distance communication
that do not allow the payment service provider to comply with the provisions of paragraphs 1 and
2, the latter must comply with the obligations established there immediately after the
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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 of payment service of character payment
isolated or from the payment order project that includes the information and conditions
specified in Article 48.
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
in an appropriate manner;
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 applicable, 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 the
article 53 shall be made available to the user of the payment service of a
easily accessible form.
Article 49.
Information to be provided to the payer upon receipt of the order of payment
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Immediately upon receipt of the order of payment, the service provider of
payment of the payer must provide to this, or to put at its disposal, in the terms of the article
42. and Article 47 (2), the following information:
a) A reference that allows the payer to identify the payment transaction and,
where appropriate, 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 it 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 must provide to this, or put at its disposal, under the terms of the
article 42 and Article 47 (2), the following information:
a) The reference that allows the beneficiary to identify the payment transaction and,
where appropriate, the payer and any information transmitted in the scope
of the payment transaction;
b) The amount transferred in the currency in which the funds are made available to the
beneficiary;
c) The amount of possible charges from the payment transaction that the beneficiary
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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
Framework contracts
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 framework contract proposal.
2-A communication shall be carried out on paper support or in any other support
lasting.
3-If the contract 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
to the provider of the payment service respect the provisions of paragraph 1, the latter shall
to comply with the obligations set out in paragraph 1 immediately after the conclusion of the
framework contract.
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4-The obligations set out in paragraph 1 may also be fulfilled upon delivery
of a copy of the framework contract project that includes the information and conditions
specified in Article 53.
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 electronic mail, useful for 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 record
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;
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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
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
respect provider and, where appropriate, 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
pursuant to paragraph 4, 5 and 6 of Article 55;
d) As for the communication:
a. 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
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provided for in this legal regime;
ii) The forms of provision or provision of information in the terms
of the present legal regime 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
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 authorized 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 Articles 86 and 87; and
vi) The conditions for reimbursement under Articles 73 and 74.
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f) The changes and denunciation 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
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 for 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
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 conditions
1-Any change to the framework contract or the information and conditions specified in the
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article 53 shall be proposed by the provider of the payment service, pursuant
provided for in Article 42 and in Article 52 (2), and no later than two months before the
date proposed 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
vigour 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 report
the framework contract, immediately and without charge, prior to the proposed date for the
application of the amendments.
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 that the
changes are based on agreed upon interest rates or reference exchange rates in the
terms of the subparagraphs ii ) and iii ) of the paragraph c ) of Article 53.
5-The user of payment services shall be informed the most quickly
possible of any change in the rate of interest in the terms set out in Article 42 and in the
n Article 52 (2), 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 users of the payment service.
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Article 56.
Denunciation
1-The user of the payment service may denounce the framework contract in any
moment, save if the parties have agreed in a period of notice, which no
may 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 denunciation of framework contracts of
indefinite duration or celebrated for a fixed period of more than 12 months is exempt
of charges for the user of payment services after the end of the period 12
months, being that, in all other cases, the charges of the complaint must be
appropriate and correspond to the supported costs.
4-If this is agreed upon in the framework contract, the payment service provider may
denouncing a framework contract of undetermined duration upon a notice of,
at least two months, in the terms provided for in Article 42 and in Article 52 (2).
5-In cases of changes 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 prior to 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 that has elapsed to the date of resolution of the contract, and if such charges are
paid in advance, must be restituted in the portion proportional to the period yet
not elapsed.
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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
account of the payer, or, if the payer does not use an account, upon receipt of the
order of payment, the payment service provider of the payer provides this,
immediately, unless justified delay, and in the terms provided for in Article 42 and paragraph 2
of Article 52, the following information:
a) A reference that allows the payer to identify each operation of
payment and, where applicable, 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 payer or in the currency used in the order of payment;
c) The amount of possible charges of the payment transaction and, where applicable,
the respective discrimination, or the interest that 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.
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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 Article 42 and in Article 52 (2), the following information:
a) A reference that allows the beneficiary to identify the payment transaction and,
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
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per 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
per month.
SECTION IV
Common provisions
Article 60.
Currency and monetary conversion
1-Payments are made in the currency agreed upon between the parties.
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
which 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 that fact, before the
start of the payment operation.
2-Should the provider of the payment service, or a third party, cover charges for
use of a given instrument of payment, shall inform the
user of the payment service before the start of the payment transaction.
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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
may deviate from the application, in whole or in part, of the provisions of Article 63 (3) thereof.
n Article 65 (3) and Articles 70, 72, 74, 77, and 87, 86 and 87 and,
agree on a period other than that set out in Article 69.
3-This Chapter applies without prejudice to the provisions of the Decree-Law No. 133/2009, of
June 2.
4-A other legislation concerning the conditions for granting credit for consumption is
applicable in so far as it 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.
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3-The provider of the payment service may not charge the user of the service of
payment of the charges inherent in fulfilling your information 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 7 (7)
77.
c) Recovery of funds, in the terms provided for in Article 85 (3).
5-In cases provided for in the preceding paragraph, charges shall be appropriate and
match the costs effectively borne by the provider of the service of
payment.
6-The payment service provider shall not prevent the beneficiary from, relatively
to 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 to encourage the
competition or to promote the use of effective payment instruments.
Article 64.
Derogation for low-value payment instruments and electronic currency
1-In the case of payment instruments which, in accordance with the framework contract, say
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respect only to individual payment transactions that do not exceed € 30, which
have a limit of expenditure of € 150, or that allow to store funds whose
amount not to exceed, in any situation, € 150, the service providers of
payment may agree with the respective users who:
a) Do not apply to ( b) of Article 67 (1), the points c ), d ) and and ) of paragraph 1
of Article 68 and paragraphs 4 and 5 of Article 72, should the instrument of payment
do not allow to block such operations nor prevent their subsequent use;
b) Do not apply Articles 70 and 71 and paragraphs 1 and 2 of Article 72, should the
payment instrument is used in an anonymous form or the provider of the
payment service cannot, for other intrinsic reasons to the instrument
of payment, provide proof that the payment transaction has been authorized;
c) By way of derogation from the provisions of paragraphs 2 a to 4 of Article 76, the provider of the service of
payment is not obliged to notify the user of that service of the refusal to
a payment order, if the non-execution if it can deprehend from the context;
d) By way of derogation from the provisions of 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 shall also apply to electronic money within the meaning of paragraph
d) of Article 2, unless the payer of the payer of the payer does not have the
possibility to block the payment instrument that only allows to store
funds the amount of which never exceeds € 150.
SECÇAO II
Authorization of payment transactions
Article 65.
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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, being that, in
case of failure to comply with the agreed manner, if it considers that the payment transaction
has not been authorized.
4-Consent may be withdrawn by the payer at any time, but never
after the moment of irrevocability established pursuant to Rule 77.
5-The consent given to the execution of a set of payment transactions may
also be withdrawn, hence resulting that any payment transaction
subsequent should be considered unauthorized.
6-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 payment instrument 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
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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
payment or, at the latest, immediately after the blockage, unless such information
it cannot be provided for objectively substantiated security reasons or if
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 the
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its emission and use; and
b) Communicate, without unwarranted delays, to the payment service provider
or to 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 steps, 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:
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
an instrument of this type already delivered to the user of payment services
should be replaced;
c) Ensure the availability, at all times, of appropriate means for
enable the user of payment services to proceed to the notification provided
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in the paragraph b) of paragraph 1 of the preceding article or request the unlock in the terms of the
n Article 66 (4);
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 made 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 payment operations not authorized or incorrectly
executed and right of rectification
1-The user of the payment service shall have the right to obtain rectification, on the part of the
payment service provider, if, after having become aware of an operation
of unauthorized or incorrectly executed payment likely to originate a
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 it is
thanks in the terms of Chapter i of this Title iii, the limitation of
term referred to in the preceding paragraph.
Article 70.
Proof of authentication and execution of payment transactions
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1-Should a user of negue payment services have authorized an operation of
payment executed, or alegue that the operation was not correctly carried out,
it is incumbent upon the respective provider of the payment service to provide proof that the
payment transaction has been authenticated, duly registered and accounted for and that no
has 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
payment service provider, on its own, is not necessarily sufficient for
prove that the payment transaction was authorised by the payer, that the latter acted
in a fraudulent manner or which has failed to comply, deliberately or by gross negligence,
one or more of its obligations arising from Article 67.
Article 71.
Liability of the payment service provider by payment transactions
unauthorized
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 from the amount of the unauthorised payment transaction and, if applicable
of this, repose of the debited payment account in the situation where it would be if the operation of
unauthorized payment had not been executed.
2-Where the payer is not immediately reimbursed by the respective provider
of payment services pursuant to the previous number, are due moratory interest,
numbered day by day from the date on which the payment service user there is
denied having authorized the payment transaction executed, up to the date of the refund
effective, calculated at the statutory rate, fixed pursuant to the Civil Code, increased by 10
percentage points, without prejudice to the right to the supplementary compensation to which there is
place.
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Article 72.
Liability of the payer for unauthorized payment transactions
1-In the case of unauthorized payment transactions resulting from loss, theft or
of the abusive appropriation of payment instrument, with breach of confidentiality
of the personalized security devices attributable to the payer, this 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 the maximum of € 150.
2-The payer supports all losses resulting from payment operations not
authorized, if those are due to fraudulent acting or default
deliberated by one or more of the obligations laid down in Article 67, in which case they are not
applicable the limits referred to in paragraph 1.
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, 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
payer does not bear any financial consequences resulting from the use of
a lost, stolen or abusively appropriate payment instrument, saved in
case of fraudulent acting.
5-If the payment service provider does not provide appropriate means that allow
the notification, at any time, of the loss, theft or abusive appropriation of
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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 cases where it has acted out of
fraudulent mode.
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 this, which has already been performed, if the following conditions are met:
a) The authorization 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 your 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 the direct debits, the payer and the respective service provider of
payment may agree, in the framework contract, that the payer is entitled to the
reimbursement by the respective payment service provider even if not
if they find 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
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related to the exchange rate if the reference exchange rate has been applied
agreed with the respective payment service provider, pursuant to point (d)
of Article 48 (1) and sub-paragraph ii) of the paragraph c) of Article 53.
6-It may be agreed, in the framework contract, between the payer and the respective provider of
payment services, that the payer is not entitled to 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 before
of 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,
for a period of eight weeks from the date on which the funds have been
debited.
2-Within 10 working days from the date of receipt of a request for a refund, the
payment service provider reimburses the full amount of the operation of
payment, or present a justification for refusing the refund, indicating the
organisms for which the payer may refer the matter, under the Articles 92 para.
and 93, if it does not accept the justification presented.
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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
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 payer.
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 day
next useful.
3-The payment service provider may set a time limit at the end of the
business day in addition to which incoming payment orders are considered to
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 is by
received:
a) On a specified date;
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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 day
next useful.
Article 76.
Refusal of payment orders
1-In the event that all the conditions laid down in the framework contract concluded are met
with the payer, the payer's payment service provider cannot refuse
the execution of an authorized order of payment, regardless of whether it was
issued by the payer, 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 eventual 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 legal provision in
contrary, 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
you will be able to charge the charges inherent in the notification in the case of refusal to be
objectively justified.
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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 after receipt by the provider
of payer payment services.
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.
3-However, in the case of direct debit and without prejudice to the rights of reimbursement, the payer
can revoke the payment order by the end of the business day prior to the agreed day
for the debit of the 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 provider of
payment services.
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-In the situations provided for in the two preceding paragraphs, and upon express clause of the
framework contract, the payment service provider may charge charges for the
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repeal.
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 transaction
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
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 must 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
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Article 79.
Scope of application
1-A present subsection applies to payment transactions in euro.
2-A present subsection is still applicable to the payment transactions carried out in the
currencies of member states not belonging to the Eurozone, unless otherwise agreed
between the user and the respective payment service provider, being that the
parties may not, however, turn away from the application of the provisions of Article 84.
3-When the user and the respective payment service provider acorders num
longer term than those set out in Article 80 for payment transactions
intra-Community, that time limit may not be more than four working days from the
moment of receipt pursuant to Rule 75.
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 by the end of the following 1 working day.
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
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beneficiary after receiving the funds pursuant to Rule 84.
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
their respective payment service provider, so as to allow 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.
Article 82.
Cash deposits in a payment account
1-Should a consumer be made 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 time of receipt of the funds and with date-
coincident value 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 subsequent working day
to the receipt of the funds.
Article 83.
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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
whether to perform between accounts based on the same payment service provider, the
date-value and the date of making available that of the moment of credit.
2-At internal transfers between payment accounts based on providers of
different payment services is not applicable to the provisions of Article 80 (2).
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
credited to the payment account of the payment service provider of the
beneficiary.
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
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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 and 87, by the failure to implement or by the poor execution of the operation of
payment.
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 service of payment charges for such recovery, if such
be agreed in the framework contract.
4-Notwithstanding the user of payment services can provide information
additional to those specified in point (a) of Article 48 (1) or (ii) (ii) (ii)
b) of 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 Art. 69, of paragraphs 2, 3 and 4 of the
article 85 and Article 90.
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 will be fit to 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 payment operation not executed or incorrectly performed and, if
for the case of this, repose of the debited payment account in the situation where it would be if not
it had occurred the incorrect execution of the payment transaction.
4-Should the liability fall to the provider of the payee's payment service in the
terms of paragraph 2, this shall immediately accredit 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 operation
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 this is requested, immediately make efforts to
track the payment transaction and notify the payer of the obtained results.
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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 whose liability falls to them and by any
interest to which they are subject to users of the payment service in consequence
of the non-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, 3 and 4 of Article 85 and in Article 90, the liability to the beneficiary
by the correct transmission of the payment order to the payment service provider
of the payer, in accordance with 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, 3 and 4 of the
article 85 and in Article 90, the liability to the beneficiary for the processing of the
payment transaction pursuant to its obligations arising from 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 provider's account
of payment services of the beneficiary.
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5-In the case of an unexecuted or incorrectly executed payment operation
whose responsibility does not fall to the payee's payment service provider
in the terms of the previous figures, it is up to the payment service provider of the
payer the responsibility to the payer.
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 operation not executed or incorrectly executed and
repose of the debited payment account in the situation where the same would be if it did not
occurred the incorrect execution of the payment operation.
7-In the case of an unexecuted or incorrectly executed payment operation
where the order of payment is issued by the beneficiary or through this, the
respective payment service provider shall, regardless of the
liability incurred by virtue of this article and if so requested, to make
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 whose liability falls to them and by any
interest to which they are subject to users of the payment service in consequence
of the non-execution or incorrect execution of the payment transaction.
Article 88.
Supplementary compensation
The provisions of Articles 86 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 that intermediary shall
indemnify the first payment service provider for any losses
suffered from 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 eventual intermediaries, well
as of the legislation applicable to such agreements.
Article 90.
Force major
The liability laid down in Articles 65 to 89 shall not apply in the event of circumstances
abnormal and unpredictable alheys at the will of the part that invokes them, if the respective
consequences had not been able to be avoided in spite of all the efforts made,
or in case the payment service provider is bound by other legal obligations,
particularly those related to the prevention of money laundering and
financing of terrorism.
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SECTION IV
Protection of data
Article 91.
Protection of data
1-Without prejudice to other legitimate causes of treatment enshrined in law, it is permitted the
processing of personal data by payment systems and by providers of
payment services in so far as it is shown to be necessary for the safeguard of
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 III-A
Issuance and refundable character of electronic currency
Article 91-The
Issue
The electronic currency shall be issued by the nominal value at the receipt of the funds.
Article 91-B
Refundable character
1-A The bearer's request, the issuer of electronic money shall refund, in any
moment and by the nominal value, the monetary value of the e-money held.
2-The contract between the issuer of electronic money and the respective holder shall state
clearly and highlighted the conditions for reimbursement, including any commissions
related to the same, owing the holder to be informed of these conditions before
of linking to any contract or offer.
3-The refund may only be subject to a commission if this is stated in the contract,
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in the terms of paragraph 2, and in one of the following cases:
a) The refund is requested before the term fixed for the contract;
b) The contract shall fix a term and the holder denouncing the contract before that date;
or
c) The refund is asked for more than one year after the term fixed for the contract.
4-A the commission referred to in the preceding paragraph shall be proportionate and cost-based
effectively borne by the issuer of electronic money.
5-Case ask for the refund before the term fixed for the contract, the currency holder
electronic may ask you to be reimbursed a part or the totality of the value
money corresponding to the detained electronic currency.
6-In case the refund is requested by the electronic money holder on the date of the term of the
contract or within one year after that date:
a) Is refunded the totality of the monetary value of the e-money held; or
b) If the institution of electronic money exercises one or more of the activities referred to
in the paragraph and ) of Article 8 (2) and is not known in advance the part
of the funds to be used as an electronic currency, shall be repaid in full
of the funds requested by the holder.
7-Notwithstanding the provisions of paragraphs 3, 4, 5 and 6, the right to reimbursement on the part of
people who, not being consumers, accept electronic money in payments gets
subject to the discipline of the contract concluded between electronic money issuers and the
people in question.
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Article 91-C
Prohibition of interest
The allocation of interest or of any other benefit related to the
period of time during which the holder holds electronic currency.
Article 91-D
Change in the conditions and denunciation of the contract between the issuer and the holder of
electronic currency
The provisions of Articles 55 and 56 shall apply, with the necessary adaptations, to the contract
between the issuer of electronic money and the respective holder, without prejudice to the
provisions relating to conditions for repayment and payment instruments and
low value electronic currency.
Title IV
Out-of-court settlement of disputes and complaint procedure
Article 92.
Provision of means of out-of-court settlement of disputes
1-Without prejudice to access, by users of payment services and by the
electronic currency holders, the competent judicial means, the providers of
payment services and electronic money issuers should offer the
respective users of payment services and electronic money carriers
access to effective and appropriate extrajudicial means of complaint and redress
disputes of value equal to or lower than the remit of the courts of 1 th instance relating to the
rights and obligations set out in the headings III and III-A of this legal regime.
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2-A offer referred to in the preceding paragraph is effective through the accession of the providers of
payment services and e-money issuers to at least two
entities authorized to carry out arbitrations under the Decree-Law No. 425/86 of 27
of December, or to two entities registered in the voluntary registration system of
procedures for extrajudicial resolution of consumption conflicts, instituted by the
Decree-Law No. 146/99 of May 4.
3-The entities chosen by providers of payment services and issuers
of electronic money shall observe the principles applicable to the bodies
responsible for the extrajudicial resolution of consumption conflicts established in the
Recommendation No. 98 to /257/CE of the Commission of the European Communities of 30 of
March.
4-Payment service providers and electronic money issuers can,
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 client or entity
analogous, designated in accordance with the principles formulated in the Recommendation
n. 98 /257/CE of the Commission of the European Communities of March 30.
5-Payment service providers and electronic money issuers must
still ensure that the resolution of cross-border disputes is forwarded to
signatory entity of the protocol of accession to the FIN-NET network of cooperation in the
out-of-court resolution of cross-border disputes in the financial sector, and may
choose to recair on one of the entities mentioned in the previous figures.
6-Payment service providers and issuers of electronic money
communicate to the Bank of Portugal the entities to which hajam adhered to in the terms of the
n. 2, within 15 days after accession.
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7-The provisions of this Article shall not apply to providers of payment services and
to electronic money issuers indicated, respectively, in points (h) and (i) of the
n Article 7 (1) and in paragraphs 1 f) and g) of paragraph 1 of Article 7.º-A.
Article 93.
Complaint to the Bank of Portugal
1-Without prejudice to access to the competent judicial means, users of services of
payment and holders of electronic money, or their representative associations,
as well as the others interested, may present, directly to the Bank of
Portugal, claims founded on non-compliance with standards of securities III and III-A of the
present legal regime by the payment service providers and the
issuers of electronic money.
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 it is legally able to adopt or that the respective matter does not
kayba 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 the article
77.-The one of the RGICSF.
Title V
Regime against ordinance
Article 94.
Offences
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:
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a) The provision of payment services through agents without which
has been given compliance with the provisions of Article 18 (2);
b) The distribution and reimbursement of electronic money by means of
representatives, in accordance with paragraphs 1 and 2 of Article 18, without which it was
given compliance with the provisions of paragraph 4 of the same article;
c) The default on the part of the agents of the institutions authorized in another
Member State of the European Union, of the duty of information provided for in paragraph 5
of Article 26;
d) Failure to comply with the conditions laid down in Article 19, as regards the
commission to third parties of relief operational functions;
e) The non-constitution of commercial society which has as its exclusive object to
provision of payment services or, in the case of currency institutions
electronics, the provision of these services and the issuance of electronic money,
when determined by the Bank of Portugal under Rule 2 (2)
34.
f) The failure to comply with the file duty provided for in Article 36;
g) The violation of the rules on amendment and denunciation of revised framework contracts
in paragraphs 4, 6 and 7 of Article 55 and in paragraphs 1 and 4 of Article 56;
h) The making of payments in fun currency from that which was agreed between
the parties, in violation of the provisions of Article 60 (1);
i) The absence of unlocking or replacement of an instrument of
payment, in violation of the provisions of Article 66 (4);
j) The refusal to carry out payment orders, in violation of the provisions of the n.
1 of Article 76;
k) The failure to meet the deadlines for implementation, dates-value and dates of
provision provided for in Articles 79 to 84;
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l) Failure to comply with the duties on the provision of extrajudicial means
effective and appropriate complaints and redress of disputes, in the terms
provided for in Article 92;
m) The ducts provided for and punished in the sub- a ), b ), d ), and ), f ), i ) and l ) of Article 210 para.
of the RGICSF, when practiced in the framework of the activity of the institutions of
payment and electronic money institutions;
n) 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;
o) The violations of the imperative precepts of this diploma and the specific legislation
which governs the activity of the payment institutions and currency institutions
electronic, not provided for in the previous paragraphs and in the following article, as well as
of the regulations issued by the Bank of Portugal in compliance or for
implementation of the said precepts .
2-A breach of duty of information on additional charges or reductions, provided for in the
article 61, when such duty falls on the beneficiary or third party that is not the
provider of the payment service, is punishable under Article 21 of the Decree-Law
n. 57/2008 of March 26, competing with the Food Safety Authority and
Economic (ASAE) the instruction of the corresponding counterordinate proceedings.
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 unauthorized practice, by any individuals or entities, of the activity
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of provision of payment services or electronic money issuance;
b) The exercise, by the payment institutions and the currency institutions
electronics, of activities not included in its legal object, or the provision of
payment services not included in the respective authorisation;
c) The use of the funds from the users of the services of
payment for distinct purposes of the execution of these services, in violation of the
provisions of Article 8 (3);
d) The breach of duty, provided for in Article 8 (4), of using the accounts of
payment that they are the holders of the payment institutions or the
electronic money institutions exclusively for the realization of
payment operations;
e) The breach of duty, provided for in Article 8 (4), of exchanging without delay the
funds received by electronic money;
f) The granting of credit outside of the conditions and limits established under the shelter
of Article 9;
g) The realization of statutory amendments provided for in Article 15 (1), when
not preceded by permission of the Bank of Portugal;
h) The issuance of electronic money by the representatives of the institutions
of electronic money mentioned in paragraphs 1 and 2 of Article 18, in
disrespect of the constant prohibition of paragraph 3 of the same Article 18;
i) The failure to comply with the prudential standards set out in Articles 29, 30, without
Injury to paragraph 3 of the same Article, 31, without prejudice to paragraph 3 of the same
article, 33.-B, 33.-C, without prejudice to paragraph 3 of the same article, and 33.-D, without
injury to paragraph 4 of the same article, when it results in or may result in serious injury
injury to the financial balance of the entity concerned;
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j) The failure to comply with the protection requirements of the funds set out in Article 32.
and 33.-And, including non-compliance with determinations issued by the Bank of
Portugal under Article 32 (6) and paragraphs 6 and 7 of Article 33-And;
k) The provision of accounting information to the Bank of Portugal with
failure to comply with the provisions of Article 33;
l) The violation of the rules on information requirements and planned communications
in Articles 42, 45, 47 to 50, 57 to 61, in Article 66 (3), 66,
in paragraphs 2 and 3 of Article 76 (3), Article 86 (5), para.
n Article 87 (7) and Article 91 (2)-B;
m) The violation of the rules on the collection of charges laid down in Article 43, in the
article 56, 3, 5 and 6 of Article 56, Article 76 (4), paragraph 7 of the Article
article 77, in paragraphs 1 and 2 of Article 78, paragraph 3 of Article 85 and paragraphs 3 and 4
of Article 91-B;
n) The carrying out of payment transactions not authorized by the payer, by
non-existence or by withdrawal of your consent for the implementation of the
Same, in violation of the provisions of Article 65;
o) The default of obligations associated with the payment instruments
provided for in Article 68;
p) The failure to meet the obligations of repayment and payment provided for in paragraph 1
of Article 71 (1) of Article 73, paragraphs 2 and 3 of Article 74, paragraphs 3 and 4
of Article 86, in paragraphs 4 and 6 of Article 87 and in paragraphs 1, 5, and 6 of Article 91-B;
q) The violation of the limiting standards of the liability of the intended payer
in Article 72;
r) The default of the obligation to pay the full amount to the
beneficiary provided for in Article 78 (4);
s) The failure to meet the recovery obligations of the funds and
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tracking of the payment transactions provided for in Article 85 (3), in the
n Article 86 (5) and in Article 87 (7);
t) The issuance of electronic money in violation of the duty of issuance by the value
nominal upon receipt of the funds provided for in Article 91;
u) The granting of interest or of any other benefit related to the period
of time during which the holder holds electronic currency, in violation of the
provisions of Article 91-C;
v) The ducts provided for and punished in the sub- c ), and ), f ), g ), l ), m ), the ), p ), q ), r ) and t ) from the
article 211 of the RGICSF, when practiced in the framework of the activity of the
payment institutions and electronic money institutions
Article 96.
Ancillary sanctions
1-Contract with the fines, they can be applied to the responsible for any of the
against 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 or electronic money institutions, 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, institutions
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of payment and electronic money institutions, for a period of six
months to three years, in the case of offences set out in Article 94, or 1 a to 10
years, in the case of offences provided for in Article 95;
e) Interdiction, in whole or in part, for a period up to three years, of the exercise of
performance activity of the payment services listed in Article 4 or
of issuance of electronic money.
2-A publication as referred to in point a ) of the preceding paragraph is carried out:
a) In the case of decisions of the Bank of Portugal that have become already
outright, on the page on the Internet of the Bank of Portugal and, at the expense of the
infractor, in a broad-based newspaper in the locality of the registered office or of the
permanent establishment of the same or, if this is a natural person, in the
locality of your residence;
b) In the case of decisions of the Bank of Portugal that have been the subject of
judicial challenge, on the page on the Internet of the Bank of Portugal, with mention
express of the non-definitive character of the sentencing decision by interposition
of appeal 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.
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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
Supplementary, transitional and final provisions
Article 100.
Direct debits
The scheme established by this legal regime shall not affect the validity of authorisations
of debit in existing account 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 the present legal regime shall be without prejudice to the validity of the
contracts in force relating to the payment services regulated therein, sensing them
as soon as the provisions of the present legal regime that show more
favorable to users of payment services.
2-Without prejudice to the provisions of the preceding paragraph, the service providers of
payment must tailor the current contracts before the entry into force of the
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present legal regime, relating to the payment services providing to the
users of payment services that are their customers, to the provisions
constants of the present regime, as of the date of its entry into force and on the deadline
maximum of 6 months.
3-Payment service providers must refer to users of services
of payment that are your customers a full copy of the contractual conditions
that result from the adaptations made pursuant to paragraph 1, by the way that there is
agreed upon with them or, in case there is no agreement, by letter, in which is evidenced the
essential 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 the
article 102, and identify the form that the user should use to communicate his / her
possible non-acceptance of the adaptations made.
Article 102.
Consent
The contractual conditions proposed by the payment service providers in the
terms of Article 101 are deemed 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 alludited conditions; or
b) These request 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
Payment service providers may not debit to users of
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payment services any amounts:
a) By the adjustment of contracts in accordance with the provisions of Article 101;
b) By the communication carried out in accordance with paragraph 3 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.
ANNEX
Calculation of own funds
(referred to in Articles 31 and 33-D)
The calculation of the requirements of own funds referred to in Articles 31 and 33-D of the
legal regime of payment services and electronic money takes place in
compliance with one of the methods described in this Annex.
I-Method of fixed general expenses:
1-Payment institutions must own upstream own funds by the
less equivalent to 10% of the value of your fixed general expenses of the previous year.
2-The Bank of Portugal may adjust this requirement in cases where a
significant change 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 funds
own must be 10% of the value of the fixed general expenses forecast for the first
year in your plan of forecasting activities.
4-The Bank of Portugal may require an adjustment of that plan, particularly in the
cases in which significant divergence in the face of predictions has occurred.
II-Method of the volume of payments:
1-Payment institutions must own upstream own funds by the
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less equivalent to the sum of the following elements, multiplied by a factor of
scale k defined below:
i) 4% of the share of the volume of payments up to € 5 million; more
ii) 2.5% of the share of payment volume above € 5 million and up to € 10
million; more
iii) 1% of the share of payment volume above € 10 million and up to € 100
million; more
iv) 0.5% of the share of payment volume above € 100 million and up to € 250
million; more
v) 0.25% of the share of the volume of payments above € 250 million.
The k-scale factor is from:
a) 0.5 case the payment institution only pay the payment service
indicated in the paragraph f) of Article 4 of this legal regime;
b) 0.8 case the payment institution shall pay the payment service indicated in the
point ( g) of Article 4 of this legal regime;
c) 1.0 case the payment institution will pay any of the payment services
listed in the paragraphs a) a and ) of Article 4 of this legal regime.
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
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predictions.
III-Method of the relevant indicator:
1-Payment institutions must own upstream own funds by the
less equivalent to the sum of the following elements, multiplied by a factor of
scale k defined below:
i) 10% of the relevant indicator part up to € 2.5 million;
ii) 8% of the relevant indicator portion above € 2.5 million and up to € 5 million;
iii) 6% of the relevant indicator portion above € 5 million and up to € 25 million;
iv) 3% of the relevant indicator part above € 25 million and up to (euro) 50
million;
v) 1.5% of the relevant indicator portion above € 50 million.
The k-scale factor is from:
a) 0.5 case the payment institution only pay the payment service
indicated in the paragraph f) of Article 4 of this legal regime;
b) 0.8 case the payment institution shall pay the payment service indicated in the
(g) of Article 4 of this legal regime;
c) 1.0 case the payment institution will pay any of the payment services
listed in the paragraphs a) a e) of Article 4 of this legal regime.
2-The "relevant indicator" consists of the sum of the following elements:
Revenue from interest;
Charges with interest;
Commissions received; and
Other operating income.
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The defined elements are based on the accounting categories relating to the account
of gains and losses of the 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 )
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 scheme
legal constant in Annex I.
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 is available, they can be used
estimates.
3-Without prejudice to the provisions of paragraph 1, for the payment institutions subject to the
relevant indicator method your own funds may not be less than 80
% of the average of the relevant indicator for the last three financial years.
Seen and approved in Council of Ministers of
The Prime Minister
The Minister of State and Finance