The Polish government’s draft of a bill amending the Act on payment services ("Bill") was signed by the country’s president on 1 August 2013 and will shortly come into force. The Bill is intended to fully implement the Directive 2009/110/EC ("Directive") and clarify the rules governing the business activity of entities operat-ing on the payment services market, especially those issuing so-called "e-money".
Currently, issues relating to the payment services and e-money are regulated by two separate acts, namely the act on payment services ("Act on PS") (implement-ing the Payment Services Directive) and the act on electronic payment instruments ("Act on EPI") (implementing the Directive, but only partially). Now, the Polish leg-islator is willing to fully implement the Directive and to consolidate both acts into one act, the Act on PS.
The Bill will be soon published in the Poland’s Journal of Laws and will come into force after 30 days from its publication.
As the Bill introduces a large number of amendments, this legal insight focuses only on those that would seem to have the greatest relevance for participants (or poten-tial participants) of the payment services market.
Issuance of e-money
The Bill introduces several amendments aimed at facilitating the issuance of e-money, in particular by establishing clear and transparent rules governing the ac-tivity with respect to e-money. Firstly, even though the issuance of e-money will be regulated in the Act on PS, from a formal point of view, it will not be a payment service. Consequently, e.g. with respect to regulatory matters, the Bill distinguishes the legal requirements and administrative procedure for entities applying for a license as a payment institution from those for entities applying for a license as an e-money issuer (currently, Polish laws make no such distinction, which may be confusing for entities intending to take up the latter activity).
As to market entry requirements, currently, the initial share capital of an e-money issuer must not be lower than EUR 350,000. According to the Bill, with respect to entities which already hold a license as a payment institution (such entities will be authorized to issue e-money without obtaining a separate license), initial share capi-tal may amount to EUR 125,000 if the average monthly value of issued e-money will not exceed EUR 5,000,000.
Furthermore, the Bill extends the catalogue of entities authorized to issue e-money without obtaining a license to act as an e-money issuer. Such catalogue will cover: (i) domestic banks, (ii) branches of foreign banks, (iii) credit institutions, (iv) elec-tronic money institutions, (v) Poczta Polska S.A. (Polish Post) and branches of postal entities from other member states, (vi) payment institutions (however, in this case a license to act as a payment institution will still be required), (vii) the European Central Bank, the National Bank of Poland and the central banks of other member states, (viii) branches of foreign electronic money institutions, (ix) administrative authorities and (x) cooperatives savings and credit unions. Some of the abovemen-tioned entities will be entitled to issue e-money subject to certain limitations estab-lished in separate regulations relevant for the main type of their activity.
As to the day-to-day operations of e-money issuers, the Bill introduces a rule that they will be entitled to operate through their agents, but only with respect to distribution and redemption of e-money.
Acquirers: elimination of a dual licensing regime
The Bill will facilitate the activity of acquirers.
Currently, an entity which intends to run a business as an acquirer is obliged to obtain two administrative approvals: (i) license from Polish Financial Supervision Authority ("PFSA") to act as a payment institution, and (ii) consent of the President of National Bank of Poland ("PNBP") for maintaining the authorization system.
The Bill will eliminate this dual licensing regime and an acquirer will be obliged to obtain only one license – from PFSA. PNBP will only participate in the proceedings and its role will be limited to the issuance of an opinion. The participation of PNBP will not delay the proceedings, as they will have to be completed within 3 months of the submission of a license request.
The entities which currently hold both a PFSA license and PNBP’s consent, will be still authorized to carry out their activities in unchanged scope after the Bill comes into force.
The Bill also introduces a number of other amendments relating to acquisitions, the issuance of payment instruments, and other payment services.
Some of these amendments refer to disclosure obligations, e.g. a merchant will be entitled to demand from an acquirer information about the amount and types of all fees imposed on the merchant (acquirers will be obliged to provide a breakdown of all fees including fees & assessments, interchange, and margin). The Polish legislator believes that since merchants will become more aware of all the fees connected with the card acceptance, this new regulation will help popularize card payments.
Another amendment refers to the statutory fees which are incurred by a payment institution performing activity with respect to issuing payment instruments or acquiring and, at the same time, performing certain additional payment services. Currently such an institution must twice pay the fees covering the costs of supervision. In order to avoid such a situation, the Bill will introduce only one fee.
In order to consolidate the Act on EPI and Act on PS, many definitions and provisions will have to be transferred from the former to the latter. During such transfer, the Polish legislator is going to clarify most of the questions that legal practitioners have raised to date with regard to the application of Act on PS.
To sum up, after the Bill comes into force, the rules relating to the payment services and e-money will be clearer and more transparent. This is especially important, as the Polish payment services market is one of the most dynamic and rapidly growing ones in the EU.