Decree No. 1 / 2018 Coll.
Ordinance on applications and notifications to carry out activities under the Law on Payment
Valid
Effective from 13.01.2018
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1
DECLARATION
of 19 December 2017
on applications and notifications for activity under the Payment Act
The Czech National Bank, pursuant to § 263 of Act No. 370 / 2017 Coll., on payment, provides for the execution of § 10 (4), § 11 (2), § 18 (6), § 27 (4), § 28 (3), § 29 (4), § 33 (5), § 34 (2), § 38 (2), § 43 (3), § 44 (2), § 51 (4), § 52 (2), § 55 (2), § 60 (3), § 61 (2), § 69 (4), § 70 (2), § 76 (6), § 86 (4), § 87 (3) § 88 (4), § 92 (5), § 93 (2), § 96 (2), § 69), § 101 (3) and § 102 (2):
Subject matter
(1) This Decree provides for details of the formalities
(a) applications for authorisation to operate
1. payment institutions and the extension of such authorisation;
2. the payment account information manager,
3. electronic money institutions and the extension of such authorisation;
4. the small-scale payment service provider and the extension of such authorisation;
5. the publisher of small-scale electronic money and the extension of this permit,
(b) requests by a payment institution, an electronic money institution or an administrator of payment account information to consent to the provision of payment services in the host Member State through a branch or an authorised representative;
(c) notification
1. changes to the data specified in the application for authorisation to operate a payment institution, the administrator of payment account information, the electronic money institution, the small-scale payment service provider or the small-scale electronic money issuer;
2. changes to the data contained in the application of a payment institution, an electronic money institution or an administrator of payment account information to consent to the provision of payment services in the host Member State through a branch or an authorised representative;
3. the intention to acquire, increase, renounce or reduce qualified participation in, control or cease control of, or the electronic money institution;
4. authorised representative of the payment institution or electronic money institution;
5. changes to the information contained in the notification of the authorised representative of the payment institution or electronic money institution;
6. the intention to entrust the performance of certain operational activities to another person,
7. the intention of a payment institution, an electronic money institution or a payment account information administrator to carry out activities in the host Member State other than through a branch or an authorised representative.
(2) In addition, this Decree shall lay down the formats and other technical details of applications and notifications referred to in paragraph 1.
Definition of terms
For the purposes of this decree:
(a) proof of integrity issued by a foreign State, a document similar to the extract from the Register of Penalties which may not be more than 3 months old, issued by a foreign State;
1. where the natural person is a citizen and a foreign State in which the natural person has remained continuously for more than 6 months during the last 3 years; or
2. in which the legal person has its registered office or has its registered office in the last 3 years, as well as the foreign State in which the legal person has, or has, a branch of a commercial establishment in the last 3 years, where the legal order of those States regulates the criminal liability of legal persons,
(b) documents for the assessment of the integrity of a document of integrity issued by a foreign State, a declaration of independence of a natural person, a declaration containing the information necessary for the measures to be taken in the register of criminal records of a natural person and data and evidence of the person's current activities over the last 10 years, in particular concerning:
1. the imposition of administrative penalties in connection with the performance of employment, function or business activities;
2. the bankruptcy decision;
3. suspension or withdrawal of an authorisation for a business or other activity, unless it has taken place at the request of a person holding such an authorisation;
4. Refusal of the consent of a court or administrative authority to elect a person to office in the elected bodies of legal persons or to the post to which a person has been appointed or otherwise called, or to acquire a qualified participation or control of a person, where such consent has been required; and
5. exclusion from the professional chamber, association or association of persons working in the financial market;
(c) evidence relating to the acquisition of a qualifying holding of a declaration by a person intending to acquire or increase a qualifying holding, whether:
1. acquire shares in its own name and on its own account;
2. exercise or exercise voting rights for the benefit of a third party;
3. intends to transfer the voting rights to another person under a contract or other arrangement,
4. there is or is to be a fact on the basis of which it is or becomes a person controlled;
5. act in agreement with another person to whom the exercise of voting rights has been transferred or who has significant influence on proceedings; and
6. has debts exceeding 5% of the equity or assets of a person acquiring or increasing a qualifying holding or which may have such an effect;
(d) by a regulated institution, a bank, a savings and credit cooperative, a securities trader, an insurance undertaking, a reinsurance undertaking, a payment institution, an electronic money institution, a payment account information manager or another person operating on the financial market supervised by the supervisory authority of the regulated institutions in the State of its registered office;
(e) financial statements
1. annual reports and financial statements for the last 3 financial years or for the period during which the applicant or notifier carries out business activities where that period is less than 3 financial years; where the applicant or notifier is part of a consolidation unit, also consolidated annual reports and financial statements for the same period, and if the accounts are to be audited by the auditor under the Accounting Act, the accounts are to be presented by the auditor; and
2. evidence of income for the last 3 years, assets and debts, in the case of a natural person,
(f) the business plan actually envisaged for the first 3 financial years, drawn up in the format of the financial statements in accordance with the Accounting Act, with a commentary on
1. the intention of the person in terms of the extent and volume of the payment services or electronic money and other activities provided under the Payment Act and a description of the intended way of achieving them, the characteristics of the target group of clients and the trading network, including foreign, and
2. the basis and assumptions on which the business plan is based and the justification for the consistency of the quantitative data of the plan and the reality of the planned results of the activity;
(g) a strategic intention for a project involving:
1. the period during which the qualifying holding is to be held or the payment institution or electronic money institution is to be controlled;
2. anticipated changes to the level of qualifying participation in the short and long term;
3. the estimated level of involvement in the management of the payment institution or electronic money institution;
4. the envisaged support of the payment institution or electronic money institution by its own resources, if necessary to develop activities or to address a deteriorating financial situation;
5. Information on whether or not an agreement has been concluded on the promotion of common interests with another member of a payment or electronic money institution; and
6. envisaged changes in the activity of the payment institution or electronic money institution, in how to finance further development, in the dividend distribution policy, in the distribution of funds and in the loss-making policy, in the management and control system, in strategic development and in the casting of managers; that information contains a strategic intention only if the qualifying holding is to exceed a 20% share of the capital or voting rights of the payment institution or electronic money institution;
(h) details of the person
1. in the case of a legal person, the trading firm or the name, registered office and identification number of the person, if assigned; and
2. in the case of a natural person, the name and surname, birth number or, if no birth number, date of birth, address of residence in the form of a street, descriptive number, municipality, part of the municipality, postal code and State; the business name, registered office and identification number of the person, if assigned;
(i) data on persons with close links
1. details of the person for each person with close links; where a person with close links is a foreign person having its registered office in another Member State, also an indication of whether he is a person who is to be authorised by the supervisory authority of another Member State to act as a regulated institution or whether he is a controlling person of that person; and
2. a description of the structure of the group and the way in which it is linked with the graphic representation of the relationships between the individual closely linked persons, indicating the subject matter of their activities;
(j) data on professional experience
1. information on the type of professional experience;
2. an indication of the person to whom the professional practice is or has been carried out;
3. a description of the employment classification and, where relevant, the importance of the practice for financial market activity, a description of the activity carried out and the extent of the powers and responsibilities associated with that activity, indicating the number of persons managed;
4. the definition of the duration of the activity referred to in point 3; and
5. consent to the performance of a work assignment required by other legislation, if necessary; and
(k) data on education
1. the name and type or type of educational institution, the study programme, the focus of the study programme, the duration of the study programme, the manner and date of completion of the study, and, where appropriate, the academic degrees obtained; and
2. an overview of professional examinations and courses, traineeships and study visits relevant to financial market activities, indicating the year of completion and focus.
Details of the details of the application for authorisation to operate a payment institution
(K § 10 (4) of the Payment Act)
(1) The details of the application for authorisation to operate a payment institution shall be information on the applicant, information relating to the activity of the payment institution and the documents containing that information.
(2) Information on the applicant is:
(a) founding acts;
(b) an extract from the commercial register or other similar business records which may not be more than 3 months old if the legal person has already been established;
(c) the actual registered office, if different from the registered office of the applicant;
(d) a list of applications for annulment of the resolutions of the General Assembly, on which the legal proceedings were not definitively closed at the date on which the application was lodged, if such proposals were made and could have a significant impact on the company's continued operation;
(e) a list of and for each person
1. details of the person,
2. evidence of credibility assessment;
3. an overview of the functions of the elected bodies and of the functions to which the lead person has been appointed or otherwise called, in other legal persons over the last 10 years, for each legal person, the details of the person, the designation of the function performed in another legal person, the period of performance of that function in another legal person and whether he intends to perform that function in another legal person in parallel with that of the lead person of the applicant; and
4. the proposed management function in the applicant's organisational structure and a brief description of the performance of that function in terms of delegated powers and responsibilities;
(f) a list of the managers who actually manage the payment service activity and for each such person
1. details of professional experience; and
2. data on education,
(g) the amount of initial capital;
(h) the financial statements of the applicant if the legal person has already been created;
(i) the list of persons having qualified participation in the applicant and the graphically displayed relationship between those persons;
(j) for each person included in the list of persons qualified to participate in the applicant referred to in (i):
1. details of the person,
2. an indication of the amount of the share of the capital or voting rights expressed in percentage and absolute value, or a description of any other form of application of a significant influence on the management of the applicant;
3. strategic plan,
4. evidence of credibility assessment;
5. an extract from a business register or other similar business records which may not be more than 3 months old if it is a legal person or an undertaking natural person;
6. a document related to the acquisition of a qualifying holding;
7. information on the financial and personnel interconnection of a person with a qualifying holding with another legal person, containing an overview of the legal persons who are managing or exercising control over a person and, for each such legal person, the data on the person and the amount of the share, or a description of any other form of application of a significant influence on the management of that legal person, and an overview of the functions performed in the elected bodies and functions to which the person with a qualifying holding has been appointed or otherwise called in other legal persons over the last 10 years, for each such legal person, of the person and the designation of the function performed and the period of performance in that legal person;
8. Information on the financial and personnel relations of a person with qualified participation in, and close to, the applicant's management and the legal person who controls the applicant;
9. financial statements and other documents proving the origin of the financial resources from which the acquisition of the qualifying holding was or is to be covered; and
10. the supervisory authority supervising regulated institutions in the State of residence of a person with a qualifying holding as regards a person who is a regulated institution with a registered office in a State other than the Czech Republic;
(k) the list of persons who are the leading legal person on the list of persons having qualified participation in the applicant referred to in (i) and for each such person
1. details of the person,
2. a description of the function performed,
3. evidence to assess credibility,
4. an overview of the currently performed functions in the elected bodies and functions to which a person has been appointed or otherwise called, in other legal persons, for each such legal person, of the person and the designation of the function performed by the lead person in that legal person; and
5. Information on the financial and personnel relations of the manager and persons close to him or her to the manager of the applicant and the legal person who controls the applicant;
(l) details of persons with close links; where the person with a close link is a person with a registered office in a Member State, also an analysis containing a comparison of the relevant legislation to demonstrate whether the legislation of that State and the manner in which it is applied, including its enforceability, prevents the effective exercise of supervision of the applicant;
(m) general information on the system of regulation of the State of residence of a person with a qualifying participation in an applicant who applies to that legal person and on the extent to which the system of regulation of the State of residence of a person with a qualifying participation in the prevention of the legalisation of proceeds from crime and terrorist financing in accordance with the recommendations of the Financial Action Committee (FATF), where the person with a qualifying participation in an applicant listed in point (i) is a regulated institution having its registered office in a Member State which is not a Member State,
(n) a description of the consolidation unit structure of which the applicant will be part, indicating the persons within the group falling within the scope of supervision on a consolidated basis; and
(o) if in control, a description of the fact on the basis of which a person listed as having qualified participation in an applicant under point (i) becomes a person controlling the applicant.
(3) Where a person with a qualified participation in an applicant listed in paragraph 2 (i) is a regulated institution established in another Member State, the applicant may, instead of the data and documents referred to in paragraph 2 (j) (4), (7) to (9) and (k) and (m), submit a certificate to the supervisory authority supervising that regulated institution that he is subject to his supervision whose credibility has been verified by that authority and has no up-to-date knowledge indicating his non-trustworthiness.
(4) Information relating to the requested activity of the payment institution is:
(a) the business plan; Part of the comment on the business plan is also information containing:
1. a description of the activities which show that the activity fulfils the features of the payment service under Section 8 (1) of the Payment Act;
2. a description of the arrangements for the implementation of individual payment services under Section 8 (1) of the Payment Act and related activities which the applicant intends to provide, taking into account the individual conditions of the applicant and the involvement of interested parties, in particular a description of the handling of cash and non-cash cash means, the course of the payment transaction including the acceptance and execution of payment orders, the issuance of payment instruments and the provision of credit;
3. an indication of whether the applicant will be entrusted with user funds;
4. draft framework contract on payment services,
5. the estimated number of staff divided into the relevant organisational units;
6. a description of the intended use of authorised representatives and branches or the provision of activities by other persons;
7. description of the applicant's participation in national or international payment systems;
8. an indication of what part of payment services, as quantified by the volume of payment transactions, the number of clients, or any other quantitative indicator, will be operated in the Czech Republic if payment services are to be provided in another State,
(b) whether the applicant carries out or intends to carry out any other business activity other than the provision of payment services and indicating such other business activity, including the scope and manner of execution;
(c) a description of the management and control system referred to in Article 20 (1) of the Payment Act and the Decree governing certain conditions for the exercise of the activities of persons authorised under the Payment Act and the draft internal rules, which include in particular:
1. procedures for identifying, evaluating, measuring, monitoring, reporting and limiting risks, internal control system and sound administrative and accounting procedures;
2. procedures for monitoring and addressing client security incidents and complaints, in particular organisational measures and instruments for preventing fraud, placing a person in the applicant's organisational structure responsible for assisting customers in the event of detection of fraud or technical problems, methods of reporting fraud, customer contact points and monitoring tools used and subsequent measures and procedures to mitigate these security risks;
3. procedures for the submission, monitoring and recording of sensitive payment data, including classification and access to sensitive data;
4. measures to ensure the continued operation of the company, based on an analysis carried out of the potential impact of the interruption and recovery, a description of the method of recovery, testing plans, measures to mitigate the impact of the interruption, a description of the preparation of contingency plans and their regular review and assessment of their adequacy and effectiveness;
5. security policy principles containing an assessment of the risks associated with the activities of the payment institution, including the risk of fraud, security controls, measures put in place to mitigate risks and to protect the user effectively against identified risks and a description of the information system;
6. the system of internal control mechanisms to fulfil the obligations relating to measures aimed at preventing the legalisation of proceeds from crime and terrorist financing; and
7. a description of the principles and definitions used for the efficient collection of statistical data related to the activity carried out, transactions and detected fraud, including in particular the type of data collected by clients, the type of payment service, the extent of data collected, the means of data collection, the purpose and frequency of data collection, and a description of the functioning of the data collection system and the protection of personal data,
(d) an insurance contract or a proposal for an insurance contract or other document of a similar nature to the guarantee provided for in Articles 9 (1) (d) and 17 (1) and (2) of the Law on Payment, where the authorisation to operate a payment institution is to apply to an indirect payment order service or to a payment account information service, and to the calculation of the minimum limit of insurance premiums on professional indemnity insurance or of the minimum level of comparable collateral under the Decree governing certain conditions for the performance of the activities of persons authorised under the Payment Act;
(e) the method chosen to protect the funds entrusted to execute the payment transaction; depending on the method of protection chosen pursuant to § 22 (1) or (2) of the Payment Act,
1. procedures to ensure the proper and separate records of the funds entrusted through their deposit in a separate account with a bank, savings and credit cooperative, a foreign bank with its head office in a Member State or a foreign bank with its head office in a Member State other than a Member State which is subject to supervision comparable to that of the Czech National Bank (hereinafter referred to as the "credit institution") or through its investment, a credit institution contract or a draft contract with the promise of its conclusion by a credit institution, an indication of the person in the organisation of the applicant who will have access to that account; and
2. the rules for investing the funds entrusted in safe and liquid assets and the way in which the funds entrusted are protected against claims by other creditors of the applicant, in particular in the event of insolvency; or
3. a draft insurance contract or other document providing comparable collateral, together with a confirmation by a person pursuant to § 22 (3) or (4) of the Payment Act that, in the case of an authorisation to operate a payment institution, the contract will be concluded;
(f) the draft approach to be applied by the payment institution in the calculation of capital adequacy and the justification for the proposed approach, the data used for the calculation of capital adequacy and the calculation of capital adequacy according to all approaches in the structure according to the own funds statement of the payment institution provided for by the Decree on information obligations of certain persons under the Payment Act.
(5) If the applicant intends to entrust the performance of certain operational activities relating to the provision of payment services to another person, it shall also submit:
(a) a description of the principles of performance by another person and its selection and indication of the operational activities the exercise of which is to be entrusted to another person or, where appropriate, the extent of such entrusted operations;
(b) details of the person to be entrusted with the performance of certain operational activities, where such data are known at the time of the request;
(c) a draft standard contract between the payment institution and the person entrusted with the performance of the operational activities;
(d) a description of the personnel, technical and organisational security of the applicant's activities, taking into account the entrustment of certain operational activities to another person;
(e) the method of management, control and security of the activity entrusted to another person; and
(f) an indication of the service in the applicant's organisational structure and functional classification of the person directly responsible for the management and control of the operational activities entrusted to another person.
(6) If the applicant intends to use an authorised representative, he shall also submit:
(a) information on:
1. How to ensure compliance with the activities of the authorised representative with the applicable legislation and the authorisation to operate the payment institution, how to ensure the quality control of the payment services provided by the authorised agent and the fulfilment of obligations aimed at preventing the legalisation of the proceeds of crime and terrorist financing,
2. the manner and periodicity of the provision of supporting documents by an authorised representative to ensure the payment institution's obligation to the Czech National Bank,
3. how the training of the authorised representative is carried out to ensure the required quality of the payment services provided and compliance with applicable legislation;
4. the chosen criteria for assessing the credibility, competence and sufficient experience of the authorised representative, if any, and the lead person of the authorised representative, indicating the list of documents that the applicant will require from the authorised representative for this purpose;
5. the means of continuous verification of the credibility, competence and sufficient experience of each person referred to in point 4; and
6. the way in which each person is stored, registered and updated in accordance with point 4; and
(b) a draft standard contract between the paying institution and the authorised representative.
Details of the details of the notification of the change to the information contained in the application for authorisation to operate a payment institution
(Paragraph 11 (2) of the Payment Act)
The details of the notification of an amendment shall be the specification of the information the change takes place, supplemented, depending on the nature of the change, by the updated information referred to in Articles 3 (2) to (4) and, where applicable, paragraphs 5 and 6, which are affected by the amendment.
Details of the application for extension of the payment service scope of the payment institution
(Article 14 of the Payment Act)
The details of the payment institution's request to extend the scope of payment services shall be an indication of the activity for which the extension is requested, supplemented by updated information pursuant to Article 3 (2) and (4), which is affected by the change in scope of the activity.
Details of the details of the application for authorisation to operate the payment account information administrator
(Paragraph 43 (3) of the Payment Act)
(1) The details of the application for authorisation for the activity of the payment account administrator shall be information on the applicant, information relating to the performance of the activity of the payment account administrator and the documents containing that information.
(2) Information on the applicant is:
(a) founding acts;
(b) an extract from a business register or other similar business records which may not be more than 3 months old if the legal person or the natural person in business is already established;
(c) the actual registered office, if different from the registered office of the applicant;
(d) a list of applications for annulment of the resolutions of the General Assembly, on which the legal proceedings were not definitively closed at the date on which the application was lodged, if such proposals were made and could have a significant impact on the company's continued operation;
(e) the financial statements of the applicant;
(f) the information necessary for the provision of an extract from the Register of Penalties, if any,
(g) a statement by the applicant that no fact has occurred that constitutes an obstacle to the pursuit of a business activity under the Commercial Business Act;
(h) proof of integrity issued by a foreign State;
(i) proof of authenticity if the applicant is a natural person;
(j) the list of managers and for each such person
1. details of the person; and
2. evidence of credibility assessment;
(k) a list of the managers who are actually managing the activity of providing the payment account information service and for each such person
1. details of professional experience; and
2. data on education.
(3) Information relating to the performance of the activity of the payment account administrator is:
(a) the business plan; Part of the comment on the business plan is also information containing:
1. a description of the activity showing that the activity fulfils the features of the payment account information service;
2. a description of the arrangements for providing the activity referred to in point 1 and the activities related thereto which the applicant intends to provide, taking into account the applicant's individual conditions and conditions and rules for providing the payment account information service, including the processing period;
3. a statement by the applicant that the applicant will not be entrusted with user funds;
4. draft contract between interested parties related to the payment account information service provided,
5. the estimated number of staff divided into the relevant organisational units;
6. a description of the intended use of authorised representatives and branches or the provision of activities by other persons; and
7. draft model contract between the payment account information administrator and the person to be entrusted with the exercise of operational activities if the applicant intends to transfer an operational activity to another person;
(b) a description of the management and control system referred to in Article 48 (1) of the Payment Act and the Decree governing certain conditions for the performance of the activities of persons authorised under the Payment Act and the draft internal rules, which include in particular:
1. procedures for identifying, evaluating, measuring, monitoring, reporting and limiting risks, internal control system and sound administrative and accounting procedures;
2. procedures for monitoring and addressing client security incidents and complaints, in particular organisational measures and instruments for preventing fraud, placing a person in the applicant's organisational structure responsible for assisting customers in the event of detection of fraud or technical problems, methods of reporting fraud, customer contact points and monitoring tools used and subsequent measures and procedures to mitigate these security risks;
3. procedures for the submission, monitoring and recording of sensitive payment data, including classification and access to sensitive data;
4. measures to ensure the continued operation of the company, based on an analysis carried out of the potential impact of the interruption and recovery, a description of the method of recovery, testing plans, measures to mitigate the impact of the interruption, a description of the preparation of contingency plans and their regular review and assessment of their adequacy and effectiveness;
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Regulation Information
| Citation | Decree No. 1 / 2018 Coll., on Applications and Announcements for Activity under the Law on Payment |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 05.01.2018 |
|---|---|
| Effective from | 13.01.2018 |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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