Regulatory Developments on the Payment Market in Europe. ACC Corporate and Securities Law March 15, 2016

Transcription

1 Regulatory Developments on the Payment Market in Europe ACC Corporate and Securities Law March 15, 2016

2 Lutz Auffenberg German Attorney at Law, Certified Banking and Capital Markets Law Specialist Expert in Banking Law, Securities Law & Banking Regulatory Law Attorney at WINHELLER Attorneys at Law & Tax Advisors, Frankfurt, Germany 1

3 I. Introducing WINHELLER WINHELLER Rechtsanwaltsgesellschaft mbh Practices: Banking and Capital Markets Law, Regulatory Law Tax Law and Tax Advisory Business Law, Companies Law, Trade Law, Restructuring Employment Law, Trademark Law, Copyright Law, Internet Law 12 Attorneys at Law, 1 Tax Advisor, 6 Senior Tax Accountant Assistants Internationally connected via: The International Society of Primerus Law Firms The American Chamber of Commerce in Germany Digital Finance Lawyers 2

4 I. Introducing WINHELLER WINHELLER office locations Frankfurt am Main Tower 185 Friedrich-Ebert-Anlage Frankfurt am Main Germany Karlsruhe Ludwig-Erhard-Allee Karlsruhe Germany Berlin Unter den Linden Berlin Germany Hamburg Neuer Wall Hamburg Germany 3 München Nymphenburger Str München Germany

5 Overview I. Payment Services in Europe (PSD I) II. European Payment Services Directive II III. Duties for Payment Services Providers IV. Excursus: Blockchain-based Payment Systems V. Summary 4

6 I. Payment Services in Europe The payment market in Europe is a highly regulated business Functionality of money transactions is essential Impact on all fields of business Traditionally: Payment services are provided by banks In Europe: Payment service providers (PSPs) are not only fully authorized banks: The European legislator has put in place Payment Services Directive (PSD) in 2007 for establishing a European single market, Directive 2007/64/EC PSD had to be transformed into national law by the EU member states until

7 I. Payment Services in Europe PSD regulates several services as payment services that are subject to regulation by the competent national supervision authorities and may only be provided with their prior authorization According to the Annex of PSD regulated Payment services are: Operating payment accounts, services enabling cash to be placed on payment accounts Operation accounts, services enabling cash to be withdrawn from payment accounts Execution of payment transactions without credit line: direct debits, card payments or similar Execution of payment transactions with credit line Issuing of payment instruments Money remittance, e.g. Western Union, Moneygram 6

8 Overview I. Payment Services in Europe (PSD I) II. European Payment Services Directive II III. Duties for Payment Services Providers IV. Excursus: Blockchain-based Payment Systems V. Summary 7

9 II. European Payment Services Directive II PSD II was passed end of 2015, Directive EU 2015/2366 EU member states have to adopt the new rules within two years What s new? Scope: The rules on transparency and customer information will also be applicable to transactions where only one PSP is located in the EU (so called one-leg-transactions ) New PSPs: The following activities will be subject to regulation under PSD II Payment initiation services (Art. 4 Nr. 15 PSD II): A service to initiate a payment order at the request of the payment service user with respect to a payment account held at another payment service provider 8

10 II. European Payment Services Directive II Account information services (Art. 4 Nr. 16 PSD II): An online service to provide consolidated information on one or more payment accounts held by the payment service user with either another payment service provider or with more than one payment service provider Intention: Regulation of FinTechs, that provide services with relation to customer s personal payment data (PIN, TAN, Access to Online banking etc.) Exclusions: PSD II will limit the existing exclusions e.g. for commercial agents or for payment activities within a limited regional network of traders/service providers 9

11 Overview I. Payment Services in Europe (PSD I) II. European Payment Services Directive II III. Duties for Payment Services Providers IV. Excursus: Blockchain-based Payment Systems V. Summary 10

12 III. Duties for Payment Service Providers Obligations of PSPs under PSD: Authorization requirement: Detailed documentation to be provided to supervisor Minimum capital: to euros Fit and proper directors: Immaculate police record, relevant experience Sufficient own funds: Three different calculation methods possible Method A: 10% of last years fixed overheads Safeguarding requirements: Insurance, separate accounts Data protection, AML-rules, fair customer information and transparency (e.g. pricing, no misleading commercials) 11

13 Overview I. Payment Services in Europe (PSD I) II. European Payment Services Directive II III. Duties for Payment Services Providers IV. Excursus: Blockchain-based Payment Systems V. Summary 12

14 IV. Excursus: Blockchain-based payment systems Blockchain-based payment systems do not fall under the PSD or PSD II Only payment services in connection with legal tender Most popular example for blockchain-based technology: Bitcoin (BTC) Can also be used for transfer of values, transactions Invented in 2009, no definite legal categorization in Europe so far In Germany: Unit of account and therefore financial instrument under the German Banking Act In UK: No regulation of BTC so far In the Netherlands: No regulation of BTC so far EBA: At least AML-rules should be mandatory for BTC-related businesses all over Europe 13

15 Overview I. Payment Services in Europe (PSD I) II. European Payment Services Directive II III. Duties for Payment Services Providers IV. Excursus: Blockchain-based Payment Systems V. Summary 14

16 V. Summary European legislator faces new challenges and amends the regulatory framework in the payment market New disruptive business models which could manage without banking licenses so far will be subject to supervision under PSD II Side effect: Companies from the non-banking sector may be subject to supervision accidentally, especially in regard to Money remittance or account information services 15

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18 Lutz Auffenberg, German Attorney at Law Thank you very much for your attention! WINHELLER Rechtsanwaltsgesellschaft mbh Tel.: +49 (0) Fax: +49 (0) Internet: winheller-attorneys-at-lawwww-winheller-com- 17