S.I. No. 6/2018 - European Union (Payment Services) Regulations 2018

• “(2A) The security control and mitigation measures referred to in subparagraph (q) of paragraph (1) shall indicate how those measures ensure a high level of technical security and data protection, including for the software and information technology systems used by the applicant or the undertakings to which it outsources the whole or part of its operations.

• (2B) The measures referred to in paragraph (2A) shall also include the security measures referred to in Regulation 118(1) and (2) of the Payment Services Regulations and shall take into account the European Banking Authority’s guidelines on security measures where such guidelines have been issued under Article 95(3) of the Payment Services Directive.

• (2C) An applicant that applies for authorisation to provide payment initiation services, shall as a condition of its authorisation, hold a professional indemnity insurance policy, covering the territories in which it offers services, or some other comparable guarantee against liability to ensure that it can cover its liabilities in relation to the provision of such services.

• (2D) An applicant that applies for authorisation or registration for the purposes of providing account information services, shall as a condition of its authorisation, hold a professional indemnity insurance policy covering the territories in which it offers services, or some other comparable guarantee against its liability vis--vis an account servicing payment service provider or a payment service user resulting from non-authorised or fraudulent access to or non-authorised or fraudulent use of payment account information.

• (2E) In paragraph (2D), “account servicing payment service provider” and “payment service user” have the same meaning as they have in the Payment Services Regulations.”,

• (e) in Regulation 14, by the substitution of the following paragraph for paragraph (3):

• “(3) Methods, A, B and C are set out in Regulations 12, 13 and 14, respectively, of the Payment Services Regulations.”,

• (f) by the substitution of the following for Regulation 19:

“Accounting and statutory audit

1. (1) The European Union (Credit Institutions: Financial Statements) Regulations 2015 ( S.I. No. 266 of 2015 ) and Regulation (EC) No 1606/2002 of the European Parliament and of the Council of 19 July 2002²⁴ shall apply to an electronic money institution, subject to the modification that a reference in the European Union (Credit Institutions: Financial Statements) Regulations 2015 to a credit institution shall be construed as a reference to an electronic money institution.

2. (2) Part 6 of the Companies Act 2014 (No. 38 of 2014) shall apply mutatis mutandis to an electronic money institution to which that Act does not otherwise apply.

3. (3) Unless exempted under the Companies Act 2014 (including as applied in accordance with paragraph (2)), where applicable, the European Union (Credit Institutions: Financial Statements) Regulations 2015, the annual accounts and consolidated accounts of an electronic money institution shall be audited by a statutory auditor or audit firm within the meaning of the European Union (Statutory Audits) (Directive 2006/43/EC, as amended by Directive 2014/56/EU, and Regulation (EU) No 537/2014) Regulations 2016 ( S.I. No. 312 of 2016 ).

4. (4) For supervisory purposes, an electronic money institution shall provide separate accounting information for the issuance of electronic money and activities referred to in Regulation 28, which shall be subject to an auditor’s report prepared, where applicable, by the statutory auditors or an audit firm.

5. (5) Regulation 52 of the European Union (Capital Requirements) Regulations 2014 ( S.I. No. 158 of 2014 ) shall apply to the statutory auditor or audit firm of an electronic money institution in respect of the issuance of electronic money, subject to the modification that a reference in those Regulations to a credit institution shall be construed as a reference to an electronic money institution.”,

• (g) by the substitution of the following for Regulation 21:

“Use of agents

1. (1) Where an electronic money institution whose home Member State is the State intends to provide payment services through an agent it shall communicate the following information to the Bank:

2. (a) the name and address of the agent;

3. (b) a description of the internal control mechanisms that will be used by the agent in order to comply with the obligations in relation to money laundering and terrorist financing under the law of the State giving effect to Directive (EU) 2015/849, to be updated without delay in the event of material changes to the particulars communicated at the initial notification;

4. (c) the identity of directors and persons responsible for the management of the agent to be used in the provision of payment services and, for agents other than payment service providers, evidence that they are fit and proper persons;

5. (d) the payment services of the electronic money institution for which the agent is mandated;

6. (e) where applicable, the unique identification code or number of the agent.

7. (2) Within 2 months of receipt of the information referred to in paragraph (1), the Bank shall inform the electronic money institution whether the details of the agent concerned have been entered in the Register.

8. (3) An agent shall not commence provision of payment services prior to the entry of its details in the Register.

9. (4) Before listing an agent in the Register, the Bank shall, if it considers that the information provided to it pursuant to paragraph (1) is incorrect, take further action to verify the information.

10. (5) Where, after taking action to verify the information, the Bank is not satisfied that the information provided to it pursuant to paragraph (1) is correct, it shall not list the agent in the Register and shall inform the electronic money institution accordingly without undue delay.

11. (6) Where an electronic money institution proposes to provide payment services in another Member State by engaging an agent or establishing a branch it shall follow the procedures set out in Regulation 26.”,

• (h) by the substitution of the following for Regulation 22:

“Outsourcing of functions

1. (1) Where an electronic money institution whose home Member State is the State proposes to outsource an operational function relating to the provision of electronic money services or payment services, it shall inform the Bank accordingly not less than 30 days prior to the date on which it proposes to commence such outsourcing.

2. (2) Outsourcing of important operational functions, including information technology systems, shall not be undertaken in a manner that materially impairs the quality of the electronic money institution’s internal control and the ability of the Bank to monitor and review the electronic money institution’s compliance with these Regulations.

3. (3) For the purposes of this Regulation, an operational function shall be regarded as important if a defect or failure in its performance would materially impair the continuing compliance of an electronic money institution with the requirements of its authorisation under this Part, its other obligations under these Regulations, its financial performance, or the soundness or the continuity of its provision of electronic money services or payment services.

4. (4) An electronic money institution may only outsource an important operational function where it meets the following requirements:

   • (a) the outsourcing will not result in the delegation by senior management of its responsibility;

   • (b) the relationship and obligations of the electronic money institution towards its electronic money holders or payment service users under these Regulations will not be altered;

   • (c) the conditions with which the electronic money institution is to comply in order to be authorised and remain so in accordance with this Part will not be breached;

   • (d) none of the other conditions subject to which the electronic money institution’s authorisation was granted will be removed or modified.”,

• (i) by the insertion of the following Regulation after Regulation 22:

“22A Information obligation

• (1) An electronic money institution shall ensure that agents or branches acting on its behalf inform electronic money holders and payment service users of this fact.

• (2) An electronic money institution whose home Member State is the State shall communicate to the Bank without undue delay any change regarding the use of—

  • (a) entities to which activities are outsourced, and

  • (b) in accordance with the procedure provided for in paragraphs (2), (3), (4) and (5) of Regulation 21, agents, including additional agents.”,

• (j) by the substitution of the following for Regulation 25:

“Record-keeping

1. (1) An electronic money institution shall keep all appropriate records for the purpose of this Part for at least 5 years.

2. (2) Paragraph (1) does not affect the operation of the law of the State giving effect to Directive (EU) 2015/849 or other relevant European law.”,

• (k) by the substitution of the following for Regulation 26:

“Application to exercise the right of establishment and freedom to provide services

1. (1) An electronic money institution which proposes to provide

2. (a) electronic money services, or

3. (b) payment services,

for the first time in another Member State, in the exercise of the right of establishment or the freedom to provide services, shall communicate the following information to the Bank not less than 3 months prior to the date on which it proposes to commence provision of those services:

(i)the name, address and, where applicable, authorisation number of the electronic money institution;

(ii)the Member State or Member States, as the case may be, in which it intends to operate;

(iii)the electronic money or payment services to be provided;

(iv)where the electronic money institution intends to make use of an agent, the information referred to in Regulation 21(1) ;

(v)where the electronic money institution intends to make use of a branch, the information referred to in subparagraphs (b) and (e) of Regulation 8(1) with regard to the electronic money business in the host Member State, a description of the organisational structure of the branch and the identity of those responsible for the management of the branch;

(vi)where the electronic money institution proposes to outsource operational functions of electronic money or payment services to other entities in the host Member State, that it proposes to do so.

• (2) Where an electronic money institution becomes aware of any relevant change regarding the information communicated in accordance with paragraph (1), including as regards additional agents, branches or entities to which activities are outsourced in the host Member States in which it operates, it shall communicate any such change to the Bank without undue delay.

• (3) Within 1 month of receipt of all of the information referred to in paragraph (1), or change regarding such information received in accordance with paragraph (2), as the case may be, the Bank shall send the information to the competent authority of the host Member State.

• (4) Where the Bank receives information from a competent authority of another Member State in accordance with the law of that Member State equivalent to paragraph (3), the Bank shall, within 1 month of receipt of the information assess that information and provide that competent authority with relevant information in connection with the proposed provision of electronic money or payment services by the electronic money institution, authorised by that competent authority, in the exercise of the freedom of establishment or the freedom to provide services.

• (5) The Bank shall, when providing relevant information in accordance with paragraph (4), inform the competent authority concerned in particular of any reasonable grounds for concern in connection with the intended engagement of an agent or establishment of a branch with regard to money laundering or terrorist financing within the meaning of Directive (EU) 2015/849.

• (6) Where the Bank does not agree with an assessment provided by the competent authority of a host Member State, provided by that competent authority in accordance with the law of that Member State equivalent to paragraphs (4) and (5), it shall provide that competent authority with the reasons for the Bank’s disagreement with that assessment.

• (7) If the assessment of the Bank, in particular in light of the information received from the competent authority of the host Member State provided by that competent authority in accordance with the law of that Member State equivalent to paragraphs (4) and (5), is not favourable, the Bank shall refuse to register the agent or branch or shall withdraw the registration if already made.

• (8) If the assessment of the Bank, in particular in light of the information received from the competent authority of the host Member State provided by that competent authority in accordance with the law of that Member State equivalent to paragraphs (4) and (5), is favourable, the Bank shall enter the agent or branch in the Register.

• (9) Within 3 months of receipt of the information referred to in paragraph (1), or where a change to that information has been provided in accordance with paragraph (2), receipt of the most recently received of such information, the Bank shall communicate its decision to the competent authority of the host Member State and to the electronic money institution.

• (10) Upon entry in the Register, the agent or branch, as the case may be, of the electronic money institution concerned may commence its activities in the host Member State.

• (11) The electronic money institution concerned shall notify the Bank of the date from which it commences its activities through the agent or branch, as the case may be, in the relevant host Member State.

• (12) The Bank shall inform the competent authority of the host Member State concerned of the information provided by the electronic money institution concerned in accordance with paragraph (11).”,

• (l) by the insertion of the following Regulations after Regulation 26:

“Supervision of electronic money institutions exercising the right of establishment and freedom to provide services

26A. (1) In order to carry out the controls and take the necessary steps provided for in this Part and in Parts 3, 4 and 5 in respect of the agent or branch of an electronic money institution authorised under Regulation 9 located in the territory of another Member State, the Bank shall cooperate with the competent authorities of the host Member State of that agent or branch.

• (2) The Bank shall notify the competent authority of the host Member State concerned where the Bank intends to carry out an on-site inspection in that Member State.

• (3) The Bank may delegate to the competent authority of the host Member State concerned the task of carrying out on-site inspections of the agent or branch concerned.

• (4) The Bank may require an electronic money institution authorised in another Member State having an agent or branch in the State to report to the Bank periodically on the activities carried out in the State.

• (5) A report referred to in paragraph (4) shall be required for information or statistical purposes and, as far as the agent or branch concerned conducts the electronic money or payment service business under the right of establishment, to monitor compliance with this Part and Parts 3, 4 and 5.

• (6) The Bank shall provide the competent authority of a host Member State of the agent or branch of an electronic money institution authorised under Regulation 9 with all essential and relevant information, in particular in the case of infringements or suspected infringements of these Regulations by an agent or a branch, and where such infringements occurred in the context of the exercise of the freedom to provide services.

• (7) The Bank shall, for the purposes of compliance with paragraph (6), communicate, upon request, all relevant information and, on its own initiative, all essential information, including on the compliance of the electronic money institution with the conditions under Regulation 11(1) .

• (8) The Bank may require an electronic money institution operating in the State through an agent under the right of establishment, the head office of which is situated in another Member State, to appoint a central contact point in the State to—

  • (a) ensure adequate communication and information reporting on compliance with this Part and Parts 3, 4 and 5, without prejudice to any obligations under anti-money laundering law or counter terrorist financing law, and

  • (b) facilitate supervision by the competent authority of the home Member State and any other host Member States of the electronic money institution concerned, including by providing such competent authorities with documents and information on request.

• (9) Paragraph (8) shall not apply to an electronic money institution that distributes or redeems electronic money through natural or legal persons acting on its behalf.

Measures in case of non-compliance, including precautionary measures

26B. (1) Where the Bank ascertains that an electronic money institution authorised in another Member State having agents or branches in the State contravenes this Part or Parts 3, 4 or 5 it shall inform the competent authority of the home Member State of the electronic money institution concerned without delay.

• (2) Where the Bank receives information from a competent authority in another Member State pursuant to the law of that Member State equivalent to paragraph (1), the Bank shall, after having evaluated the information received, without undue delay, take all appropriate measures, available to it under this or any other law of the State, to ensure that the electronic money institution concerned ceases its contravention.

• (3) Where the Bank takes measures under paragraph (2), it shall communicate those measures without delay to the competent authority of the host Member State of the electronic money institution concerned and to the competent authorities of any other Member State concerned.

• (4) In an emergency situation, where immediate action is necessary to address a serious threat to the collective interests of the electronic money holders in the State, where the State is the host Member State, the Bank may, in parallel with the cross-border cooperation between competent authorities and pending measures by the competent authorities of the home Member State of the electronic money institution concerned, as provided by Regulation 26A, take such precautionary measures, available to it under this or any other law of the State, as it considers appropriate in the circumstances.

• (5) A precautionary measure taken under paragraph (4) shall—

  • (a) be appropriate and proportionate to its purpose to protect against a serious threat to the collective interests of the electronic money holders in the State,

  • (b) not result in a preference for electronic money holders of the electronic money institution concerned in the State over electronic money holders of the electronic money institution in other Member States,

  • (c) be temporary, and

  • (d) be terminated when the serious threats identified are addressed, including with the assistance of or in cooperation with the home Member State’s competent authority or with the European Banking Authority in accordance with Regulation 61A.

• (6) Where compatible with the emergency situation referred to in paragraph (4), the Bank shall inform—

  • (a) the competent authorities of the home Member State of the electronic money institution concerned and those of any other Member State concerned,

  • (b) the Commission, and

  • (c) the European Banking Authority

  in advance and in any case without undue delay, of the precautionary measures taken under paragraph (4) and of their justification.

  Reasons and communication

  26C. (1) The Bank shall only take a decision pursuant to Regulation 26, 26A, 26B or 59 involving penalties or restrictions on the exercise of the freedom to provide services or the freedom of establishment where that decision is justified in the circumstances relating to the decision.

• (2) Where the Bank takes a decision pursuant to Regulation 26, 26A, 26B or 59 involving penalties or restrictions on the exercise of the freedom to provide services or the freedom of establishment, it shall communicate the reasons for its decision to the electronic money institution concerned.

• (3) Regulations 26, 26A and 26B shall be without prejudice to the obligation of the Bank under the law of the State giving effect to Directive (EU) 2015/849 and Regulation (EU) 2015/847 of the European Parliament and of the Council of 20 May 2015²⁵ , in particular under the law of the State giving effect to Article 48(1) of Directive (EU) 2015/849 and Article 22(1) of that Regulation, to supervise or monitor the compliance with the requirements laid down in those enactments.”,

• (m) in Regulation 27—

• (i) in paragraph (1), by the substitution of the following subparagraph for subparagraph (a) :

• “(a) if the institution—

  • (i) does not engage in the provision of electronic money services or payment services, in accordance with the authorisation within 12 months, expressly renounces the authorisation or ceases to engage in that business for more than 6 months,

  • (ii) obtained the authorisation through false statements or any other irregular means,

  • (iii) would constitute a threat to the stability of or trust in the payment system by continuing its electronic money or payment services business, or

  • (iv) no longer meets the conditions for granting the authorisation or fails to inform the competent authority on major developments in this respect,”, and

• (ii) by the deletion of paragraph (6),

• (n) in Regulation 59, by the insertion of the following paragraph:

• “(3) Where the Bank requires an electronic money issuer to provide information under paragraph (1) (a), it shall specify the purpose of the request, where appropriate, and the time limit by which the information is to be provided.”,

• (o) in Regulation 61, by the substitution of the following paragraph for paragraph (2):

• “(2) The Bank may exchange information with—

  • (a) the competent authorities of other Member States responsible for the authorisation and supervision of electronic money institutions,

  • (b) the European Central Bank and the central banks of other Member States, in their capacity as monetary and oversight authorities, and, where appropriate, other public authorities responsible for overseeing payment and settlement systems,

  • (c) relevant authorities of other Member States designated under laws giving effect to the Payment Services Directive, Directive (EU) 2015/849 and other acts of the European Union applicable to payment service providers (including acts applicable to money laundering and terrorist financing), and

  • (d) the European Banking Authority, in its capacity of contributing to the consistent and coherent functioning of supervising mechanisms (as referred to in point (a) of Article 1(5) of Regulation (EU) No 1093/2010).”,

• (p) by the insertion of the following Regulation after Regulation 61:

“Settlement of disagreements between competent authorities of different Member States

61A. (1) Where the Bank considers that, in a particular matter, cross-border cooperation with competent authorities of another Member State referred to in Regulations 26, 26A, 26B, 26C or 61 does not comply with the relevant conditions set out in those provisions, it may refer the matter to the European Banking Authority and request its assistance in accordance with Article 19 of Regulation (EU) No 1093/2010.

(2)Where the European Banking Authority has been requested to assist in accordance with Article 19 of Regulation (EU) No 1093/2010 or the European Banking Authority, on its own initiative, is assisting the Bank and competent authorities of other Member States in reaching an agreement in accordance with the second subparagraph of Article 19(1) of that Regulation, the Bank shall defer its decision on the matter concerned pending resolution under Article 19 of that Regulation.”, and

• (q) by the insertion of the following Regulation after Regulation 77:

“Activities taken up before 13 January 2018

77A. (1) An electronic money institution that has, before 13 January 2018, taken up activities—

• (a) in the State in accordance with these Regulations and the European Communities (Payment Services) Regulations 2009, or

• (b) in another Member State in accordance with the laws of that Member State giving effect to the Electronic Money Directive and Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007²⁶ ,

may continue to carry out those activities in the State until 13 July 2018 without being required to seek authorisation in accordance with Regulation 8 or to comply with the other requirements of Part 2.

• (2) An electronic money institution to which paragraph (1) applies shall submit all relevant information to the Bank in a timely manner in order to allow the Bank to assess whether the electronic money institution complies with its requirements under Part 2 and, if not, which measures need to be taken in order to ensure compliance or whether a withdrawal of authorisation is appropriate.

• (3) The Bank shall complete the assessment referred to in paragraph (2) by 13 July 2018.

• (4) Where the Bank is satisfied that an electronic money institution to which paragraph (1) applies complies with the institution’s obligations under Part 2, the Bank shall grant an authorisation to the electronic money institution and enter in the Register the information required under Regulation 7 in respect of the electronic money institution.

• (5) Where the Bank is not satisfied by 13 July 2018 that an electronic money institution to which paragraph (1) applies complies with the institution’s obligations under Part 2, the electronic money institution shall be prohibited from issuing electronic money.”.

Amendment of European Union (Capital Requirements) Regulations 2014

• “(4) Payment services as defined in Article 4(3) of Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015²⁷ .”.

Amendment of Act of 1942 — professional secrecy

• (a) in subsection (4)(a) (ii), by the insertion of “or (5B)” after “subsection (1A)”,

• (b) by the insertion of the following subsections after subsection (5):

• “(5A) Subsection (5) shall not apply to confidential information received by the Bank in the performance of its functions as a competent authority designated as such for the purposes of the Payment Services Directive.

• (5B) A person to whom subsection (1) applies shall not disclose confidential information concerning—

  • (a) the business of any person or body whether corporate or incorporate that has come to the person’s knowledge through the person’s office or employment with the Bank, or

  • (b) any matter arising in connection with the performance of the functions of the Bank or the exercise of its powers,

  if such disclosure is required to be prohibited by the Payment Services Directive.

• (5C) Subject to subsection (5B), the Bank may disclose confidential information received by it in the performance of its functions as a competent authority (so designated for the purposes of the Payment Services Directive)—

  • (a) to a public authority or body designated by another Member State as the competent authority for the purposes of the Payment Services Directive,

  • (b) to the European Central Bank and the central banks of other Member States, in their capacity as monetary and oversight authorities, and, where appropriate, other public authorities responsible for overseeing payment and settlement systems,

  • (c) to the European Banking Authority, in its capacity of contributing to the consistent and coherent functioning of supervising mechanisms (as referred to in point (a) of Article 1(5) of Regulation (EU) No 1093/2010 of 24 November 2010^28),

  • (d) to the relevant authorities of other Member States designated under laws giving effect to the Payment Services Directive, Directive (EU) 2015/849 of the European Parliament and of the Council of 20 May 2015²⁹ and other Acts of the European Union applicable to payment service providers (including Acts applicable to the protection of individuals with regard to the processing of personal data and to money laundering and terrorist financing),

  • (e) to authorities entrusted with the public duty of supervising other financial sector entities and the authorities responsible for the supervision of financial markets,

  • (f) to authorities or bodies charged with responsibility for maintaining the stability of the financial system in Member States through the use of macroprudential rules,

  • (g) to reorganisation bodies or authorities aiming at protecting the stability of the financial system,

  • (h) to bodies involved in the liquidation and bankruptcy of institutions and in other similar procedures,

  • (i) to the persons responsible for carrying out statutory audits of the accounts of institutions, insurance undertakings and financial institutions,

  • (j) to the ESCB central banks and other bodies with a similar function in their capacity as monetary authorities when the information is relevant for the exercise of their respective statutory tasks,

  • (k) to contractual or institutional protection schemes as referred to in Article 113(7) of Regulation (EU) No 575/2013 of the European Parliament and of the Council of 26 June 2013³⁰ ,

  • (l) where appropriate, to other public authorities responsible for overseeing payment systems,

  • (m) to the European Systemic Risk Board, the European Insurance and Occupational Pensions Authority and the European Securities and Markets Authority, where that information is relevant for the exercise of their functions under Regulation (EU) No 1092/2010 of the European Parliament and of the Council of 24 November 2010³¹ , Regulation (EU) No 1094/2010 of the European Parliament and of the Council of 24 November 2010³² or Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010³³ , as the case may be,

  • (n) to a clearing house or other similar body recognised under Irish law for the provision of clearing or settlement services where that information is necessary in order to ensure the proper functioning of those bodies in relation to defaults or potential defaults by market participants,

  • (o) to a liquidator, examiner, receiver or any other person or body involved in the liquidation or bankruptcy of a supervised entity in relation to that entity,

  • (p) to the Minister for Housing, Planning and Local Government in connection with that Ministers functions under the national housing programme with respect to a mortgage lender,

  • (q) to—

    • (i) the Minister, in accordance with the provisions of the Payment Services Directive in relation to the Minister’s responsibility for policy on the supervision of supervised entities,

    • (ii) authorities in other Member States with responsibilities corresponding to that of the Minister referred to in subparagraph (i), or

    • (iii) where the Bank is the chair of a college of supervisors established under Regulation 104 of the European Union (Capital Requirements) Regulations 2014 ( S.I. No. 158 of 2014 ), to the Committee of European Banking Supervisors,

  • (r) to an inspector appointed by the Minister and acting on the Minister’s behalf,

  • (s) where the information is required for the purposes of criminal proceedings, or

  • (t) with the consent of the person to whom the information relates and, if the information was obtained from another person, that other person.

• (5D) Where confidential information has been received from an authority designated as a competent authority for the purposes of the Payment Services Directive in another Member State, the Bank shall only disclose such confidential information pursuant to subsection (5C)(h), (i) or (k) in accordance with the express consent of that authority.

• (5E) In subsections (5A), (5B), (5C) and (5D), “Payment Services Directive” means Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015³⁴ .

• (5F) Subsections (5A), (5B), (5C) and (5D) shall apply to confidential information received in connection with the operation of the European Communities (Electronic Money) Regulations 2011, subject to the modification that a reference to the Payment Services Directive shall be construed as a reference to Directive 2009/110/EC of the European Parliament and of the Council of 16 September 2009³⁵ .”,

• (c) by the insertion of the following subsection after subsection (6A):

• “(6B) Any person or entity to whom confidential information is provided under subsection (5C) shall, when holding and dealing with that information, ensure its confidentiality.”,

• (d) in paragraph (a) of subsection (8), by the insertion of “or (5B)” after “subsection (1A)”, and

• (e) in subsection (10), in the definition of “supervisory EU legal acts”, by the deletion of paragraphs (p) and (q) .

Amendment of Act of 1942 — insertion of references

• (a) in section 2(2A)—

• (i) in paragraph (ar), by the substitution of “and of the Council of 8 June 2016;” for “and of the Council of 8 June 2016.”, and

• (ii) by the insertion after paragraph (ar) of the following paragraph:

• “(as) Commission Delegated Regulation (EU) 2017/2055 of 23 June 2017 supplementing Directive (EU) 2015/2366 of the European Parliament and of the Council with regard to regulatory technical standards for the cooperation and exchange of information between competent authorities relating to the exercise of the right of establishment and the freedom to provide services of payment institutions.³⁶ ”, and

• (b) in Part 2 of Schedule 2 by the insertion of the following item after the last item:

“

71	S.I. No. 6 of 2018	European Union (Payment Services) Regulations 2018	The whole instrument

”.

SCHEDULE Payment Services

• (a) execution of direct debits, including one-off direct debits;

• (b) execution of payment transactions through a payment card or a similar device;

• (c) execution of credit transfers, including standing orders.

• (a) execution of direct debits, including one-off direct debits;

• (b) execution of payment transactions through a payment card or a similar device;

• (c) execution of credit transfers, including standing orders.

GIVEN under my Official Seal,

12 January 2018.

PASCHAL DONOHOE,

Minister for Finance.

EXPLANATORY MEMORANDUM

(This note is not part of the Instrument and does not purport to be a legal interpretation.)

These Regulations transpose into domestic law the provisions of Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market (the “revised Payment Services Directive” or “PSD2”). These Regulations revoke the European Communities (Payment Services) Regulations 2009 ( S.I. No. 383 of 2009 ), which transposed the original Payment Services Directive (Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007.

The objective of PSD2 is to set a common legal framework for payment services, providing a consistent set of rights and obligations for businesses and consumers making and receiving payments.

The main elements of the Regulations are:-

• • Part 1 covers preliminary matters such as important definitions and the scope of the Regulations. The scope has expanded now that PSD2 extends to payment transactions in non-EEA currencies and to “one-leg” transactions (payment transactions where only one of the payment service providers is located within the Union) and the extent to which some payment transactions and services are excluded from the scope of the Regulations has been narrowed.

The vast majority of the provisions of PSD2 come into operation on 13 January 2018. A small number of provisions will come into operation 18 months from the date the regulatory technical standards on strong customer authentication and common and secure open standards of communication enter into force.

• • Part 2 sets out the categories of payment service providers that can provide payment services. It adds two new categories of payment service providers to be regulated; providers of account information services and providers of payment initiation services. This Part establishes the authorisation requirements and process for payment institutions, including the relevant requirements for initial capital, own funds, and safeguarding of users’ funds. This Part also designates the Central Bank as the competent authority in the State for the purposes of the Payment Services Directive, and provides for it to maintain a register on which authorised payment institutions and their agents are to be included and to notify the European Banking Authority of changes to that register.

• • Part 3 establishes transparency and information requirements to ensure that payment service users are given pertinent information by payment service providers.

• • Part 4 sets out the respective rights and obligations of payment service providers and payment service users in relation to the provision and use of payment services.

It also covers reporting of infringements, and certain matters relating to supervision and directions from the Central Bank. This Part requires payment service providers to have effective procedures for the resolution of complaints from payment service users and provides for the Financial Services and Pensions Ombudsman to have jurisdiction over the settlement of disputes between eligible payment service users and payment service providers.

• • Part 5 ensures that the leaflet produced by the Commission of the European Union in accordance with Article 106(1) of PSD2 on the rights of consumers under PSD2 is made available to consumers.

• • Part 6 contains final provisions, including the revocation of the European Communities (Payment Services) Regulations 2009 with associated saver and transitional provisions. It also contains amendments necessitated to other legislation as a consequence of the transposition of PSD2.

Although it is not required to be provided for in these Regulations, it should be noted that Article 108 of PSD2 provides that the EU Commission shall submit to the European Parliament and to the Council a report on the application of the Directive by 13 January 2021.

Footnotes