LegalizeCommission Delegated Regulation (EU) 2021/1722 of 18 June 2021 supplementing Directive (EU) 2015/2366 of the European Parliament and of the Council with regard to regulatory technical standards specifying the framework for cooperation and the exchange of information between competent authorities of the home and the host Member States in the context of supervision of payment institutions and electronic money institutions exercising cross-border provision of payment services (Text with EEA relevance)
THE EUROPEAN COMMISSION,
Having regard to the Treaty on the Functioning of the European Union,
Having regard to 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/EC (1), and in particular Article 29(7) thereof,
Whereas:
(1) In accordance with Title II of Directive (EU) 2015/2366, the framework for cooperation and for the exchange of information between competent authorities of the home and the host Member States is to enhance cooperation between competent authorities and ensure consistent and efficient supervision of payment institutions providing payment services in other Member States by specifying the method, means and details of cooperation, including the scope and treatment of information to be exchanged.
(2) In order to facilitate communication and exchange of information with competent authorities in other Member States, competent authorities should designate single points of contact. They should notify those contact points to the European Banking Authority (EBA) and to competent authorities in other Member States so that those authorities in other Member States know to whom they should address their requests and notifications. Competent authorities should also indicate the languages in which they can receive correspondence from competent authorities in other Member States.
(3) Standardised forms should be introduced and made available to competent authorities to facilitate their communication when requesting and notifying information from and to each other, in order to ensure consistent and efficient cooperation. Those standard forms should be flexible enough to allow competent authorities to introduce the relevant explanations and information, upon request, and on their own initiative, information that they consider to be essential. It is desirable to introduce deadlines to avoid undue delays regarding the request, exchange and notification of information among competent authorities.
(4) Where the competent authorities of the host Member States require payment institutions located in their territory to report to them periodically on the activities carried out, they should indicate to those payment institutions, the registered office or head office of which is situated in another Member State the language in which and the electronic means, where available, by which they may submit the reports. Furthermore, to enable EBA to fulfil its mandate to contribute to supervisory cooperation and convergence as envisaged in Regulation (EU) No 1093/2010 of the European Parliament and of the Council (2) and for the purposes of applying Directive (EU) 2015/2366 consistently, host competent authorities should inform EBA about their decision to require payment institutions having branches or agents within their territories to report to them periodically.
(5) The content and the format of the reports to be submitted to host competent authorities by payment institutions having branches or agents within their territories should ensure the comparability of the data reported and, to the extent possible, the predictability of the data.
(6) In order to enhance cooperation, where the competent authority of the home Member State intends to carry out an on-site inspection of an agent or a branch of a payment institution located in the territory of another Member State, a specific procedure should be set out. The competent authority of the host Member State may also be able to ask the competent authority of the home Member State to carry out an on-site inspection at the head office of a payment institution situated in the home Member State. Competent authorities of the home and the host Member States should engage in ongoing dialogue to coordinate the various stages of any on-site inspection.
(7) In accordance with Article 6(1)(a) of Directive 2009/110/EC of the European Parliament and of the Council (3), electronic money institutions, in addition to issuing electronic money, are entitled to engage in the provision of payment services. Further, in accordance with Article 3(1) of that Directive, the procedures for supervision of payment institutions exercising the right of establishment and freedom to provide services, including any periodical reporting required from payment institutions, apply mutatis mutandis to electronic money institutions. Article 3(4) of Directive 2009/110/EC also establishes that the provisions for supervision of payment institutions exercising the right of establishment and freedom to provide services apply mutatis mutandis to electronic money institutions distributing electronic money in another Member State through natural or legal persons that act on their behalf, with the exception of the appointment of central contact points in accordance with Article 29(4) of Directive (EU) 2015/2366. Article 3(5) of Directive 2009/110/EC provides that electronic money institutions may not issue electronic money through agents, while they are allowed to provide payment services through agents subject to the conditions laid down in Article 19 of Directive (EU) 2015/2366. Cross-border cooperation among competent authorities in relation to electronic money institutions having branches, agents or distributors within the territory of a host Member State should be facilitated with regard to the content and the format of the reports to be submitted. Nevertheless, information for monitoring compliance with the provisions of national law transposing Titles III and IV of Directive (EU) 2015/2366 should be submitted only by electronic money institutions providing payment services via branches or agents that are establishments in the host Member States.
(8) This Regulation is based on the draft regulatory technical standards submitted by EBA to the Commission.
(9) EBA has conducted open public consultations on the draft regulatory technical standards on which this Regulation is based, analysed the potential related costs and benefits and requested the advice of the Banking Stakeholder Group established in accordance with Article 37 of Regulation (EU) No 1093/2010,
HAS ADOPTED THIS REGULATION:
Article 1
Subject matter and scope
This Regulation establishes the framework for cooperation and for the exchange of information between the competent authorities of the home Member State and the host Member State in accordance with Title II of Directive (EU) 2015/2366 and, as far as the payment service business is conducted under the right of establishment, for the monitoring of compliance with the provisions of national law transposing Titles III and IV of that Directive.
This Regulation also establishes the means and details of any periodical reporting required by the competent authorities of the host Member States from payment institutions having agents or branches within their territories on the payment business activities carried out in their territories, including the frequency of such reporting, in accordance with Article 29(2), first subparagraph) of Directive (EU) 2015/2366.
This Regulation shall also apply mutatis mutandis to the framework for cooperation, and for the exchange of information, between the competent authorities of the home Member State and of the host Member State with regard to the exercise of the right of establishment or of the freedom to provide services by electronic money institutions in accordance with Article 111 of Directive (EU) 2015/2366, including the means and details of any periodical reporting required by the competent authorities of the host Member States from electronic money institutions having agents, branches or distributors within their territories on the payment business activities and electronic money activities carried out in their territories, including the frequency of such reporting, in accordance with the first subparagraph of Article 29(2) of Directive (EU) 2015/2366.
Article 2
Single contact points
The competent authorities shall designate a single contact point to receive and transmit requests for cooperation and for the exchange of information in accordance with Article 4. The single contact point shall be a dedicated functional mailbox.
Each competent authority shall make information on the single contact points referred to in paragraph 1 available to the other competent authorities and to the European Banking Authority (EBA).
Based on the information received by the competent authorities, EBA shall maintain a list of single contact points referred to in paragraph 1 and shall make that list available to the competent authorities.
The competent authorities shall communicate updates on the information on single contact points referred to in paragraph 1 to EBA and shall be solely responsible for the validity of the information provided to EBA.
Article 3
General requirements
The requests for information and the responses exchanged between competent authorities in accordance with this Regulation shall be submitted in writing in a language customary in the field of finance, or in any Union language accepted by the competent authorities of the home and the host Member States.
Those requests and responses shall be transmitted in a secure way by electronic means, where those means are accepted by the competent authorities of the home and the host Member States.
Where the requesting authority has objective reasons justifying the urgency of the request, the requesting authority may make the request by means other than those referred to in paragraph 1, including orally. Any request for cooperation or exchange of information made orally shall be subsequently confirmed in writing in accordance with paragraph 1, unless the competent authorities concerned agree otherwise.
Each competent authority shall communicate the languages accepted in accordance with paragraph 1 to EBA. EBA shall include that information, for each competent authority, in the list of single contact points referred to in Article 2(2).
Article 4
Submission of requests for cooperation or exchange of information
Requests for cooperation of or exchange of information with a competent authority in another Member State shall be submitted to the single contact point of the requested authority by completing the form in Annex I. The requesting authority may attach to the request any document or other material deemed necessary to support the request.
Article 5
Reply to a request for cooperation or exchange of information
No later than twenty working days after receipt of a request for cooperation or exchange of information, the requested authority shall provide the following information:
(a) all relevant information specified by the requesting authority;
(b) all essential information, on its own initiative.
The information shall be provided using the form set out in Annex II. It shall be submitted to the single contact point of the requesting authority.
The requested authority shall inform the requesting authority of any clarification it requires in relation to the request received.
Where, on the basis of the complexity of the request or the amount of information requested, the requested authority is unable to meet the time limit set out in paragraph 1, it shall immediately inform the requesting authority of the justifiable reasons that necessitate any such delay and provide an estimated date of response.
Where, as referred to in paragraph 3, the requested authority is not able to provide all the information required within the time limit set out in paragraph 1, it shall provide the information available to it within the time limit set out in that paragraph. For that purpose, it shall use the form in Annex II.
The requested authority shall provide the missing information as soon as it becomes available. The requested authority may provide that information in any manner, including orally, that ensures that any necessary action may be taken expediently.
Where a procedure for the settlement of a disagreement between the competent authorities of different Member States has been initiated in accordance with Article 27 of Directive (EU) 2015/2366 in relation to a request for cooperation or exchange of information, paragraphs 1 to 4 of this Article shall not apply pending resolution of the procedure under Article 19 of Regulation (EU) No 1093/2010.
Article 6
Notification of intention to carry out an on-site inspection in the host Member State
Where the competent authority of the home Member State intends to carry out an on-site inspection of an agent or a branch of a payment institution located in the territory of another Member State, it shall notify the competent authority of the host Member State by completing the form in Annex III.
Article 7
Procedure for a request to carry out an on-site inspection
Where the competent authority of the home Member State intends to delegate to the competent authority of the host Member State the task of carrying out an on-site inspection of an agent or a branch of a payment institution located in its territory, it shall send a request to the competent authority of the host Member State, stating the reasons for the request. The competent authority of the home Member State may make a request to carry out the inspection jointly with the competent authority of the host Member State.
Where, on the basis of the complexity of the request, the competent authority of the host Member State is unable to fulfil the request, it shall immediately inform the competent authority of the home Member State, stating the justifiable reasons that prevent it from fulfilling the request.
The competent authorities of the home and the host Member States shall engage in ongoing dialogue to coordinate the various stages of the on-site inspection and shall agree beforehand on:
(a) the subject matter and scope of the inspection;
(b) a supervisory programme that sets out the different areas on which the inspection will focus;
(c) the allocation of resources and staff;
(d) timelines for the completion of the inspection;
(e) responsibility for any enforcement actions and for monitoring the implementation of any risk mitigation plan that is considered necessary as a result of the inspection.
The competent authority of the home Member State shall submit the request in the accordance with Article 4 and the requested authority shall reply in accordance with Article 5.
The competent authority of the host Member State, to ensure consistent and efficient supervision of payment institutions exercising cross-border provision of payment services, may ask the competent authority of the home Member State to carry out an on-site inspection at the head office of a payment institution that is situated in the home Member State and which provides payment services in the host Member State, stating the reasons for the request.
The competent authority of the host Member State shall submit the requests under paragraph 5 in accordance with Article 4.
Where a procedure for the settlement of a disagreement between the competent authorities of different Member States has been initiated in accordance with Article 27 of Directive (EU) 2015/2366 in relation to a request to carry out an on-site inspection, paragraphs 1 to 4 of this Article shall not apply pending resolution of the procedure under Article 19 of Regulation (EU) No 1093/2010.
Article 8
Notification in the event of an infringement or suspected infringement
The competent authorities of the home and host Member States, on becoming aware of any infringements or suspected infringements by an agent or a branch of a payment institution, or such infringements occurring in the exercise of the freedom to provide services, shall notify each other immediately in accordance with Article 4.
The notifying competent authority shall provide the notified competent authority with all the indispensable information in relation to the infringements or suspected infringements as referred to in paragraph 1, which shall include:
(a) the type of infringement;
(b) any actions undertaken by the competent authority such as precautionary measures issued against the payment institution, sanctions or withdrawals of authorisation.
The notifying competent authority may provide the notified competent authority with any other information that it considers to be pertinent for the notified competent authority.
The notified competent authority may request from the notifying competent authority any other information that it considers to be pertinent for deciding on the appropriate course of action.
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