European Communities (Payment Services) Regulations 2009

• Statutory Instrument No.: 383/2009
• Published date: 29 September 2009

S.I. No. 383 of 2009

EUROPEAN COMMUNITIES (PAYMENT SERVICES) REGULATIONS 2009

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 29th September, 2009.

I, BRIAN LENIHAN, Minister for Finance, in exercise of the powers conferred on me by section 3 (as amended by section 2 of the European Communities Act 2007 (No. 18 of 2007)) of the European Communities Act 1972 (No. 27 of 1972), and for the purpose of giving effect to Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC 1 , hereby make the following Regulations:

Part 1

Preliminary

1. Citation.

2. Commencement.

3. Interpretation.

4. Bank to be competent authority.

5. Application of certain provisions of these Regulations.

6. Payment transactions, etc., to which these Regulations do not apply.

7. Relationship with Consumer Credit Act 1995.

Part 2

Payment Service Providers

Chapter 1

Right to Provide Payment Services

8. Persons that may provide payment services.

9. The Register.

Chapter 2

Authorisation of Payment Institutions

10. Applications for authorisation.

11. Initial capital.

12. Own funds.

13. Calculation of amount of own funds.

14. Calculation of own funds — Method A.

15. Calculation of own funds — Method B.

16. Calculation of own funds — Method C.

17. Calculation of own funds — scaling factor k.

18. Decision to grant or refuse authorisation.

19. Conditions for granting of authorisation.

20. Bank may require adjustments to applicant’s business plan.

21. Communication of the decision.

Chapter 3

Conditions of Authorisation

22. Requirements of this Chapter to be conditions of authorisation.

23. Maintenance of own funds.

24. Safeguarding of users’ funds.

25. Maintenance of authorisation.

26. Accounting and audit.

27. Activities in which a payment institution may engage.

28. Use of agents.

29.Establishment of branch in the State by payment institution authorised in another Member State.

30. Outsourcing of functions.

31. Liability.

32. Record-keeping.

33.Obligation to give notice of intention to commence providing payment services in another Member State.

Chapter 4

Withdrawal of authorisation

34. Withdrawal of authorisation.

Chapter 5

Small Payment Institutions

35.Small payment institutions — waiver of application of certain provisions of Chapter 2.

36. Requirement to apply for authorisation in certain circumstances.

37. Withdrawal of waiver.

Part 3

Payment Systems

38. Definition (Part 3).

39. Application of Part II of Central Bank Act 1997 to payment systems.

40. Bank’s powers in relation to payment systems.

41. Court’s additional powers in relation to payment systems.

Part 4

Transparency of Conditions and Information Requirements for Payment Services

Chapter 1

General Rules

42. Scope of this Part.

43. Application of this Part.

44. Operation of other legislative provisions.

45. Charges for information.

Chapter 2

Single Payment Transactions

46. Single payment transactions.

47. General information to be supplied in advance.

48. Information and conditions.

49. Information for payer after receipt of payment order.

50. Information for payee after execution of payment transaction.

Chapter 3

Framework Contracts

51. Scope of this Chapter.

52. General information to be supplied in advance.

53. Information to be provided.

54. Access to information and conditions of framework contracts.

55. Changes in conditions of framework contracts.

56. Termination.

57. Information before execution of individual payment transactions.

58. Information for the payer on individual payment transactions.

59. Information for the payee on individual payment transactions.

60.Information requirements for low-value payment instruments and electronic money.

Chapter 4

Common Provisions

61. Currency and currency conversion.

62. Information on additional charges or reductions.

63. Manner in which information to be given.

Part 5

Rights and Obligations in Relation to the Provision and Use of Payment Services

Chapter 1

Common Provisions

64. Scope.

65. Application of this Part.

66. Charges applicable.

67.Right of payment service provider and user to agree on application of certain provisions of these Regulations.

Chapter 2

Authorisation of Payment Transactions

68. Consent and withdrawal of consent.

69. Limits of the use of payment instruments.

70. Obligations of payment service users in relation to payment instruments.

71.Obligations of the payment service provider in relation to payment instruments.

72.Rectification of unauthorised, etc., payment transactions dependent on notice.

73.Evidence on authentication and execution of payment transactions.

74.Payment service provider’s liability for unauthorised payment transactions.

75.Payer’s liability for certain unauthorised payment transactions.

76. Refunds for payment transactions initiated by or through a payee.

77.Requests for refunds for payment transactions initiated by or through a payee.

78. No liability in certain circumstances.

79. Other compensation not prevented.

Chapter 3

Execution of payment transactions

80. Receipt of payment orders.

81. Refusal of payment orders.

82. Irrevocability of payment orders.

83. Amounts transferred and amounts received.

84. Execution time and value date.

85. Payment transactions to payment account.

86. Absence of payee’s payment account with the payment service provider.

87. Cash placed on a payment account.

88. Value date and availability of funds.

89. Incorrect unique identifiers.

90. Non-execution or defective execution.

91. Right of recourse.

92. No liability in certain circumstances.

93. Other compensation not prevented.

Chapter 4

Data Protection

94. Processing of personal data.

Part 6

Powers and Duties of the Bank

Chapter 1

Supervisory Powers and Duties

95. Bank as competent authority.

96. Supervision.

97. Bank’s power to give directions.

98. Exchange of information.

Chapter 2

Powers of Authorised Officers

99. Interpretation (Chapter 2).

100. Power to appoint authorised officers.

101. Powers of authorised officers.

102. Warrants.

Chapter 3

Out-of-Court Complaint and Redress Procedures

103. Out-of-court redress.

Chapter 4

Appeals

104. Appealable decisions.

Part 7

Offences

105. Offence — operation as a payment institution without authorisation, etc.

106. Offence — false or misleading information in application.

107. Offence — misappropriation of users’ funds.

108. Offence — failure to inform Bank of relevant changes, etc.

109. Offence — failure to keep appropriate records.

110. Offences — obstruction of authorised officer, etc.

111.Offence — provision of false or misleading information under Regulation 96(1)(a).

112. Penalties.

113. Prosecution of offences.

114.Offences — directors and others of bodies corporate and unincorporated bodies.

Part 8

Transitional

115. Payment service providers active before 25 December 2007.

116.Payment service providers active before 25 December 2007 included in consolidated supervision of another undertaking.

117.Certain small payment service providers active before commencement of these Regulations.

Part 9

Amendment and Revocation of Other Legislation

118. Amendments of Central Bank Act 1942.

119.Amendment of the European Communities (Licensing and Supervision of Credit Institutions) Regulations 1992.

120.Revocation of European Communities (Cross-Border Credit Transfers) Regulations 1999.

121.Amendment of European Communities (Protection of Consumers in Respect of Contracts Made by Means of Distance Communication) Regulations 2001.

122.Amendments of European Communities (Distance Marketing of Consumer Financial Services) Regulations 2004.

SCHEDULE 1

Payment Services

SCHEDULE 2

Amendment of other Legislation

Part 1

Amendments of Central Bank Act 1942

Part 2

Amendments of European Communities (Licensing and Supervision of Credit Institutions) Regulations 1992

Part 1 Preliminary

Citation.

1. These Regulations may be cited as the European Communities (Payment Services) Regulations 2009.

Commencement.

2. (1) Part 1 and Part 2 (except for Chapter 1) come into operation on the day after the making of these Regulations is notified in Iris Oifigiúil.

(2) The remainder of these Regulations come into operation on 1 November 2009.

Interpretation.

3. (1) In these Regulations—

“the Bank” means the Central Bank and Financial Services Authority of Ireland;

“competent authority”, in relation to any other Member State means the body or bodies charged by law in the Member State with the supervision of payment institutions;

“court” means the High Court;

“electronic money” has the same meaning as in the European Communities (Electronic Money) Regulations 2002 (S.I. No. 221 of 2002);

“Member State” means a Member State of the European Communities and includes a contracting party to the Agreement on the European Economic Area signed at Oporto on 2 May 1992 2 (as adjusted by the Protocol signed at Brussels on 17 March 1993 3 ), as amended from time to time;

“micro enterprise” has the meaning given by Commission Recommendation 2003/361/EC of 6 May 2003 4 concerning the definition of micro, small and medium-sized enterprises;

“money-laundering” means:

(a) the conversion or transfer of property, knowing that the property is derived from criminal activity or from an act of participation in criminal activity, for the...