Changes in banking and payment service outsourcing – impact and requirement

 

[Draft 1] Proposed solutions for:

1) Deregulation of Payment Service Bureau:

  • limitation of the amount rendered by the Payment Service Bureau with respect to a single transaction or transactions on the same account to EUR 2,500
  • abolition of the obligation to submit with the Polish Financial Supervision Authority the documents confirming the execution of a guarantee or insurance agreement, concluded to protect the funds received from users, including abandonment of penalties for non-compliance with such obligation, without prejudice to the customer protection
  • reduction in the rate of payments made by payment service bureaus to cover the costs of supervision of their activities
  • reduction and simplification of the supervision procedure over the activities of payment service bureaus to change it into remote and follow-up inspections

2) Small payment institutions:

  • extension of the obligations related to the application for entry into the register of small payment institutions by including the requirement to attach (1) a description of internal controls related to the prevention of money laundering and terrorist financing in compliance with the Anti-Money Laundering Act, (2) a copy of the payment account agreement used by the small payment institution to perform payment transactions, and (3) a description of the business activities referred to in Article 117f(5) (other than the provision of payment services and short-term cash credit) carried out or planned to carry out by the small payment institution.
  • introduction of an obligation to inform the Polish Financial Supervision Authority about any changes in the data on the list of payment services and changes in the (1) description of internal control mechanisms related to the prevention of money laundering and terrorist financing, (2) content of the payment account agreement used by the small payment institution to perform payment transactions, (3) description of business activities other than the provision of payment services and short-term cash credit.

3) other:

  • exemption of BGK and NBP from the obligation to use the Confirmation Availability of Funds (CAF) functionality
  • changes in payments towards the costs of supervision made by payment institutions, whereby the amount of an overpayment made by a payment institution in a given year is not to be returned to that institution but allocated to the following year, reducing the amount of the aforesaid contributions due from that institution in the following year
  • authorization of the Polish Financial Supervision Authority to audit the activities and financial standing of the EU electronic money institutions and their agents conducting activities within the territory of the Republic of Poland
  • resignation from issuing regulations on the basis of Articles 64(a)(5) and 98(b)(3) of the Payment Services Act

*Comments submitted by market participants during the legislative process:

  • clarification of the definition of a payment instrument and extension of the definition of a “parent entity” under the Payment Services Act to include a situation where the direct or indirect partners or shareholders of the National Payment Institution/National Electronic Money Institutions are or become natural persons
  • change of exclusions under the Payment Services Act regarding sales agents and limited network
  • changes to the authorization and authentication of payment transactions and the burden of proof on the provider to justify that the payment transaction was authorized in terms of its consistency with the PSD2 Directive
  • revocation of a payment order. The proposed amendment to add paragraph 4a in Article 51 is aimed at allowing payers to revoke the payment order in a situation where it is legally considered as not having been received by the provider

*the indicated comments are currently under consideration by the draft proponent and their presence in Draft 1 has not been determined

[Draft 2]

1. Changes in outsourcing:

  • the key change is to allow banks to outsource services without any limitation on the number of entities involved in providing services to the bank; the changes remove the current ban on creating an “outsourcing chain” of more than 2 entities
  • as a result of such changes, banks will have more opportunities to use services provided by external entities, especially technology services
  • the contract conclusion process will be simplified in the case of using the services of persons remaining in a B2B relationship with the insourcer
  • acceleration of the process of concluding an agreement in the case of agreements with an element (seat or place of residence, place of activity) from outside the EEA – the requirement to obtain the consent of the Polish Financial Supervision Authority to conclude such an agreement is to be replaced with the requirement to notify the Polish Financial Supervision Authority of the intention to conclude the agreement
  • in the case of agreements planned to be concluded with a non-EEA element, according to the current regulations, the Polish Financial Supervision Authority should issue its permission within 3 months, however this is an instructional deadline; according to the proposed amendments, a notification about the planned conclusion of the agreement should be given at least 30 days prior to its execution; the Polish Financial Supervision Authority will be entitled to order the bank, by way of a decision, to take actions aimed at refraining from the conclusion, amendment or termination of the agreement
  • simplification of the outsourcing process between banks: some requirements do not apply, as it is unnecessary to apply the same standards as in the case of the banks (i.e. regulated entities) versus external non-bank service providers. Special simplifications are provided for outsourcing between a mortgage bank and its affiliated domestic bank
  • simplification of the outsourcing process between banks: in the case of such outsourcing, it is unnecessary to apply the same standards as for external non-bank service providers; specific simplifications are provided for outsourcing between a mortgage bank and its affiliated domestic bank

2. Amendments to the Payment Services Act:

  • change in the manner of imposing fines on persons managing domestic payment institutions by introducing a maximum amount threshold of up to PLN 500,000.00, while repealing the current method based on three times the gross monthly remuneration of the person, calculated on the basis of the average gross remuneration for the last 3 months before imposing the penalty
  • introduction of the responsibility of “persons who are members of the statutory body directly responsible for overseeing the area in which the irregularities were found” in addition to the managers directly responsible for the ascertained irregularities
  • introduction of the possibility of punishment also after the termination of the function of a manager or member of a body, without any time limit in this respect
  • replacement of the 2-year statute of limitations on the imposition of fines with a general 5-year period based on the principles laid down in the Code of Administrative Procedure
  • introduction of the possibility of the qualified electronic registered delivery service with regard to control and other supervisory activities of the Polish Financial Supervision Authority, which do not take the form of an administrative decision
See also:
Changes in banking and payment service outsourcing – table of contents
Changes in banking and payment service outsourcing – table of contents
Changes in banking and payment service outsourcing – FAQ
Changes in banking and payment service outsourcing – FAQ
Changes in banking and payment service outsourcing – what we provide
Changes in banking and payment service outsourcing – what we provide

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