European Union (Payment Services) Regulations 2018

• Jurisdiction: Ireland
• Citation: IR SI 6/2018
• Year: 2018

Notice of the making of this Statutory Instrument was published in

“Iris Oifigiúil” of 12th January, 2018.

I, PASCHAL DONOHOE, Minister for Finance, in exercise of the powers conferred on me by section 3 of the European Communities Act 1972 (No. 27 of 1972) and for the purpose of giving effect to Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 20151 hereby make the following Regulations:

PART 1

Preliminary

Citation and commencement

1. (1) These Regulations may be cited as the European Union (Payment Services) Regulations 2018.

(2) Subject to paragraph (3), these Regulations come into operation on 13 January 2018.

(3) Regulations 89(2)(c), 90(4)(d) and (5)(a), 91(3)(c) and (4)(a) and 120 come into operation 18 months from the date the regulatory technical standards referred to in Article 98 of the Payment Services Directive enter into force.

Interpretation

2. (1) In these Regulations, unless the context otherwise requires-—

“Act of 1942” means the Central Bank Act 1942 (No. 22 of 1942);

“applicant” means a person who applies for an authorisation under Regulation 7;

“Bank” means the Central Bank of Ireland;

“Commission Recommendation” means the Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises2 ;

“competent authority of another Member State” means a competent authority of another Member State designated for the purposes of the Payment Services Directive under the law of that Member State;

“court” means the High Court;

“credit institution” has the same meaning as it has in the European Union (Capital Requirements) Regulations 2014 ( S.I. No. 158 of 2014 );

“credit union” has the same meaning as it has in the Credit Union Act 1997 (No. 15 of 1997);

“Directive 2009/110/EC” means Directive 2009/110/EC of the European Parliament and of the Council of 16 September 2009 on the taking up, pursuit and prudential supervision of the business of electronic money institutions amending Directives 2005/60/EC and 2006/48/EC and repealing Directive 2000/46/EC3 ;

“Directive 2013/36/EU” means Directive 2013/36/EU of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC4 ;

“Directive (EU) 2015/849” means Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015 on the prevention of the use of the financial system for the purposes of money laundering or terrorist financing, amending Regulation (EU) No 648/2012 of the European Parliament and of the Council, and repealing Directive 2005/60/EC of the European Parliament and of the Council and Commission Directive 2006/70/EC5 ;

“electronic money institution” has the same meaning as it has in the European Communities (Electronic Money) Regulations 2011 ( S.I. No. 183 of 2011 );

“Financial Services and Pensions Ombudsman” has the same meaning as it has in the Act of 1942;

“General Data Protection Regulation” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC6 ;

“insurance undertaking” has the same meaning as it has in the European Union (Insurance and Reinsurance) Regulations 2015 ( S.I. No. 485 of 2015 );

“investment firm” has the same meaning as it has in the European Union (Markets in Financial Instruments) Regulations 2017 ( S.I. No. 375 of 2017 );

“market operator of a regulated market” has the same meaning as it has in the European Union (Markets in Financial Instruments) Regulations 2017;

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

“payment account” means an account held in the name of one or more payment service users that is used for the execution of payment transactions, where the holder of the account is entitled to place, transfer or withdraw funds without any restrictions;

“Payment Services Directive” means Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC7 ;

“payment institution” means a payment institution authorised by the Bank under Regulation 18;

“payment services provider” means a person referred to in Regulation 6(1) ;

“Register” has the meaning assigned to it by Regulation 25;

“Regulation (EU) 2015/847” means Regulation (EU) 2015/847 of the European Parliament and of the Council of 20 May 2015 on information accompanying transfers of funds and repealing Regulation (EC) No 1781/20068 ;

“Regulation (EU) No 575/2013” means Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648/20129 ;

“Regulation (EU) No 1093/2010” means Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC10 ;

“Regulations of 2009” means the European Communities (Payment Services) Regulations 2009 ( S.I. No. 383 of 2009 );

“reinsurance undertaking” has the same meaning as it has in European Union (Insurance and Reinsurance) Regulations 2015;

“UCITS management company” means a management company within the meaning of the European Communities (Undertakings for Collective Investment in Transferable Securities) Regulations 2011 ( S.I. No. 352 of 2011 ).

(2) A word or expression that is used in these Regulations and is also used in the Payment Services Directive has, unless the contrary intention appears, the same meaning in these Regulations that it has in the Payment Services Directive.

Application of certain provisions of these Regulations

3.(1) Subject to the limitations with regard to the currency of a payment transaction specified in paragraphs (2), (3) and (4), Parts 3 and 4 apply—

(a) in respect of a payment service provided by a payment service provider—

(i) established in the State, or

(ii) providing that payment service to a payment service user in the State—

(I)in the exercise of the right of establishment, or

(II)through an agent established in the State, or

(b) in a case in which the provision concerned applies to or imposes an obligation on a payment service user, where that payment service user is resident in or established in the State.

(2) Parts 3 and 4 apply to payment transactions in the currency of a Member State where both the payer’s payment service provider and the payee’s payment service provider are, or the sole payment service provider in the payment transaction is, located in a Member State.

(3) Part 3, except Regulation 69(1) (b), Regulation 76(b) (v) and Regulation 80(a), and Part 4, except for Regulations 105 to 109, apply to payment transactions in a currency that is not the currency of a Member State where both the payer’s payment service provider and the payee’s payment service provider are, or the sole payment service provider in the payment transaction is, located within the Union, in respect to those parts of the payments transaction which are carried out in a Member State.

(4) Part 3, except for Regulation 69(1) (b), Regulation 76(b) (v), Regulation 76(e) (vii) and Regulation 80(a), and Part 4, except for Regulation 86(3) and (6), Regulations 100, 101, 105, 107(1) and (2), 112 and 115, apply to payment transactions in all currencies where only one of the payment service providers is located in a Member State, in respect to those parts of the payments transaction which are carried out in a Member State.

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

4.(1) These Regulations do not apply to-—

(a) payment transactions made exclusively in cash directly by a payer to a payee, without any intermediary intervention,

(b) payment transactions from a payer to a payee through a commercial agent authorised under an agreement to negotiate or conclude the sale or purchase of goods or services on behalf of the payer only or the payee only,

(c) professional physical transport of banknotes and coins, including their collection, processing and delivery,

(d) payment transactions consisting of non-professional cash collection and delivery within the framework of a non-profit or charitable activity,

(e) services where cash is provided by a payee to a payer as part of a payment transaction following an explicit request by the payment service user just before the execution of the payment transaction through a payment for the purchase of goods or services,

(f) cash-to-cash currency exchange operations where the funds are not held on a payment account,

(g) payment transactions based on any of the following classes of document drawn on a payment service provider with a view to placing funds at the disposal of a payee:

(i) paper cheques governed by the Geneva Convention of 19 March 1931 providing a uniform law for cheques;

(ii) paper cheques similar to those referred to in clause (i) and governed by the law of a Member State which is not a party to the Geneva Convention of 19 March 1931 providing a uniform law for cheques;

(iii) paper-based drafts in accordance with the Geneva Convention of 7 June 1930 providing a uniform law for bills of exchange...