What is Decree No. 141 / 2011 Coll.?

Decree No. 141 / 2011 Coll., on the performance of the activities of payment institutions, electronic money institutions, small-scale payment service providers and small-scale electronic money publishers — Ordinance on the performance of the activities of payment institutions, electronic money institutions, small-scale payment service providers and small-scale electronic money issuers.

When it became Decree No. 141 / 2011 Coll. effectiveness?

Decree No. 141 / 2011 Coll. became effective 27.05.2011.

Is Decree No. 141 / 2011 Coll. still valid?

Yes, Decree No. 141 / 2011 Coll. is still valid and effective.

Decree No. 141 / 2011 Coll. - Ordinance on the performance of the acti...

141

DECLARATION

of 13 May 2011

on the performance of the activities of payment institutions, electronic money institutions, small-scale payment service providers and small-scale electronic money issuers

Pursuant to Article 142 of Act No. 284 / 2009 Coll., on payment, as amended by Act No. 139 / 2011 Coll., (hereinafter referred to as "the Act '), the Czech National Bank provides for the implementation of § 9 (3), § 11 (2), § 17 (4), § 18 (6), § 20 (4), § 23 (3), § 26 (4), § 29 (2), § 37 (3), § 39 (2), § 47 (3), § 48 (4), § 52a (5), § 52b (3) and § 56 (2):

ČÁST PRVNÍ

GENERAL PROVISIONS

§ 1

Subject matter

This decree implements the relevant provisions of the European Union1) and provides for

(a) the model form and the content of the Annexes

1. applications for authorisation to operate a payment institution;

2. requests for entry in the register of small-scale payment service providers;

3. Applications for authorisation to operate an electronic money institution;

4. requests to register small-scale electronic money issuers;

5. Notification of an intention to acquire, increase, cease or reduce qualified participation in an electronic money institution or to control or cease to control an electronic money institution;

6. notification of the intention of a payment institution and an electronic money institution to provide payment services through a sales agent, to entrust the exercise of certain activities to another person and to carry out activities in the host Member State;

7. notification of a change to the information contained in the application for authorisation to operate an electronic money payment institution or an electronic money institution;

8. Notification of changes to the data contained in the application for registration in the register of small-scale payment service providers or in the register of small-scale electronic money issuers;

(b) how the requirements for the management and control system of the payment and electronic money institutions are met;

(c) the rules for calculating the amount of own funds and for calculating the capital adequacy of the payment institution and electronic money institution, including the individual approaches that may be applied in the calculation of the capital adequacy; and

(d) assets in which a payment institution, an electronic money institution, a small-scale payment service provider and a small-scale issuer of electronic money may invest the funds entrusted to conduct a payment transaction (hereinafter referred to as "investment restrictions").

§ 2

Definition of terms

For the purposes of this decree:

(a) proof of integrity issued by a foreign State, a document similar to that in the Register of Penalties not earlier than 3 months 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;

2. in which the legal person has its registered office or has had its registered office in the last 3 years as well as the foreign State in which the legal person has, or has, an organisational component of the undertaking in the last 3 years, provided that the legal system of that State regulates the criminal liability of legal persons;

(b) a full extract from the register of entrepreneurs or other registers under another legislation (2), or from similar registers of foreign States, containing the information in force at the time of the application or notification, including information on the application for entry in the relevant register which was not carried out at the date of the application or notification and a document authorising the performance of another activity, if issued under another legislation (3), or another similar document issued by the competent authority of a foreign State;

(c) financial institution financial institution23) pursuant to Regulation (EU) No 575 / 2013 of the European Parliament and of the Council of 26 June 2013 on prudential requirements for credit institutions and investment firms and amending Regulation (EU) No 648 / 2012 ("the Regulation"),

(d) financial statements

1. the annual reports and accounts for the last 3 financial years or for the period during which the person carries out the business if that period is less than 3 financial years; where a person is part of a consolidation unit, also consolidated annual reports and financial statements for the same period; (4) if the accounts are to be audited by an auditor, the accounts thus audited;

2. evidence of income, assets and liabilities over the last 3 years in the case of a natural person;

(e) a hybrid payment institution or an electronic money institution which carries out business activities other than those for which authorisation under the law is required;

(f) information on persons with close links, a list of persons closely linked to the applicant, a description of the structure of the group and the manner of interconnection, including graphically illustrated relationships between individuals with close links, as well as a communication as to whether the legal order of the State in which the group has close links does not prevent the supervision of the Czech National Bank; for persons with close links with the applicant, the details of those persons referred to in point (m) and the subject matter of the activities of individual persons with close links shall also be provided;

(g) an information system of a functional unit ensuring the acquisition, processing, transmission, sharing and storage of information in whatever form, including the relevant technical equipment;

(h) institutions

1. bank or foreign bank,

2. savings and credit cooperatives;

3. a securities dealer who fulfils the conditions of § 8a (1), (2) or (3) of Act No. 256 / 2004 Coll., on Capital Market Business, as amended,

(i) the capital investment of a participating security, a commercial interest, a member's share or a similar asset value, or any claim the repayment of which is subject to the condition of subordination (5);

(j) the business plan of the applicant for the first three financial years, drawn up in the format of the financial statements in accordance with the Accounting Act (6), supported by real economic calculations, together with a comment containing:

1. the applicant's intentions in terms of the size and volume of the payment services or electronic money or other activities provided by law and a description of the intended way of achieving them, including the characteristics of the applicant's target group and business network;

2. the basis and assumptions on which the 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 action;

(k) a decision on the bankruptcy of a bankruptcy decision under the bankruptcy law and its methods of resolution (7), or a similar decision under another law or legislation of a foreign State;

(l) the strategic objective of the intention to acquire or increase qualified participation or to become a person controlling it, which shall include information on:

1. the period during which qualified participation is to be held or be a person controlling,

2. the expected change in the level of qualifying participation in the short and long term;

3. the estimated level of involvement in the strategic management of the electronic money institution;

4. any support to an electronic money institution by additional equity if necessary for the development of an activity or the maintenance of an activity;

5. agreement with other members of the electronic money institution; and

6. the development of the activity of the electronic money institution in relation to the current business plan, the policy of distribution of profits or reimbursement of losses, the method of financing further development, the management and control system and any changes in staffing and strategic development; This does not apply if the qualifying holding does not exceed 20%;

(m) details of the person

1. in the case of a legal person, the commercial firm, or the name, registered office and identification number of the person, if any,

2. in the case of a natural person, the name and surname, birth number, date of birth, if no birth number has been assigned, address of residence in the form of a street, descriptive number, municipality, part of the municipality, postal code and state; a commercial firm, place of business and person identification number have also been assigned to an entrepreneur incorporated in the commercial register,

(n) data on professional experience

1. information on the type of professional experience;

2. an indication of the person with whom he or she has been practised;

3. an indication of the employment classification and a description of the activity carried out;

4. the definition of the duration of the activity referred to in point 3;

5. consent to the performance of a work assignment required by other legislation, where necessary;

(o) 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 method and date of completion of the study, and, where appropriate, the academic degrees obtained; and

2. an overview of courses, traineeships and study visits of relevance to the activity of the payment institution or electronic money institution, indicating the year of completion, focus, duration and, where appropriate, the titles obtained.

ČÁST DRUHÁ

AUTHORISATION, REGISTRATION, NOTIFICATION AND NOTIFICATION

HLAVA I

PAYMENT INSTITUTIONS

Application for authorisation to operate a payment institution

(K § 9 (3) of the Act)

§ 3

(1) An application for authorisation to operate a payment institution shall be made on a form, a model of which is given in Annex 1 to this Order. The application shall include the annexes referred to in paragraphs 2 to 5.

(2) The Annexes containing the basic information on the applicant are:

(a) proof of a business authorisation;

(b) proof of origin of the initial capital and, where applicable, other financial resources and the extent of the paying-up of the capital, unless this information is apparent from the document of the business authorisation;

(c) financial statements; and

(d) a list of applications for annulment of decisions of the applicant's highest authority which, at the date on which the application was lodged, have not been definitively brought to an end, where such applications have been made and where such proposals could have a significant impact on the applicant's continued functioning.

(3) Annexes containing information relating to the requested activity of the payment institution shall be:

(a) a business plan;

(b) a description of the management and control system within the scope of Article 18 (1) to (5) of the Act and this Decree;

(c) the method chosen to protect the funds entrusted to execute the payment transaction; depending on the method of protection chosen pursuant to § 20 (1) or (2) of the Act, the procedures for ensuring the proper and separate registration of such funds entrusted and their deposit in a separate account and the rules on the investment of funds, or the draft insurance contract or contract providing for another comparable guarantee, together with the confirmation of the person referred to in § 20 (3) of the Act, that, in the case of an authorisation to operate a payment institution, the contract will be concluded,

(d) a description of the arrangements for the implementation of individual payment services pursuant to Article 8 (1) of the Act and the activities related thereto which the applicant intends to provide, taking into account the applicant's individual conditions, 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 issue of payment instruments and the provision of credit;

(e) a description of the personnel, organisational and technical security of the various activities, which shall always include the expected number of staff divided into the relevant organisational departments, a description of the information system, the accounting and financial reporting system, and, where the applicant intends to use the commercial agents, a description of their activities and checks,

(f) a description of the subject matter, scope and manner in which the payment institution carries out other business activities than those for which authorisation under the law is required; and

(g) the draft approach to be applied by the payment institution in the calculation of capital adequacy, including 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 as provided for by the Czech National Bank20).

(4) The Annexes containing information on the applicant's managers shall be:

(a) the questionnaire provided for in Annex 2 to this Order, completed for each person in charge;

(b) information on professional practice and training of each management person who actually manages the payment service activity; and

(c) proof of integrity issued by the foreign State to each of the managers.

(5) Annexes containing information on persons with qualified participation in the applicant and persons with close links with the applicant shall be:

(a) a list of persons who have qualified participation in the applicant and persons who have qualified participation in the applicant by acting in agreement with another person, including graphically illustrated relations between those persons, with details of those persons, indicating the amount of the participation in the applicant, or other forms of participation in the applicant, for persons acting in agreement, the fact on the basis of which the conduct takes place and the questionnaire provided for in Annex 3 to this Regulation, completed for each person included in that list;

(b) the list of senior legal persons referred to in point (a) and, for each person included in that list, the questionnaire provided for in Annex 2 to this Decree, with the exception of the basic information listed in Part A of this Annex;

(c) proof of integrity issued by the foreign State of each person referred to in (a) and each person referred to in (b);

(d) proof of authorisation for the business of each person referred to in (a);

(e) the financial statements of each person referred to in (a);

(f) information on persons closely linked to the applicant; and

(g) a description of the fact on the basis of which the person referred to in point (a) becomes the person controlling the 8) of the applicant when control occurs.

(6) Where a person with a qualified participation in an applicant as referred to in paragraph 5 (a) is a person who is an institution, financial institution or other person engaged in a financial market which has its head office in a Member State and is subject to supervision by a competent authority in the Member State of its registered office, who has assessed the credibility of the persons constituting its statutory authority or members of its statutory authority, the applicant shall submit for that person:

(a) the Annex referred to in paragraph 5 (d) and, where that person becomes the person controlling the applicant, the Annex referred to in paragraph 5 (g); and

(b) a statement by the authority which oversees a person with a qualifying holding in the State of his registered office that he does not know that the person with a qualifying holding in the applicant is not credible.

(7) Where a person with a qualifying holding in an applicant as referred to in paragraph 5 (a) is a person who has a qualifying holding in an institution, a financial institution or another person operating in a financial market having its head office in a Member State and that institution, financial institution or other person operating in a financial market is subject to supervision by a competent authority in the Member State of its registered office which has assessed the credibility of a person having a qualifying holding, the applicant shall submit:

(a) the Annex referred to in paragraph 5 (d) per person qualified to participate in the applicant and, if that person becomes the person controlling the applicant, the Annex referred to in paragraph 5 (g); and

(b) the statement by the authority which oversees the institution, financial institution or other person engaged in the financial market that it is not known that a person with a qualifying participation in the applicant is not credible.

§ 4

(1) The applicant intending to provide payment services through a sales agent shall, in addition to the information provided for in Article 3, provide information on:

(a) the management and control system with regard to compliance with the obligations relating to combating the legalisation of proceeds from crime and terrorist financing by the agent;

(b) arrangements for ensuring compliance with the activities of the agent with the applicable legislation and authorisation for the operation of the payment institution, including arrangements for ensuring the quality control of the payment services provided by the agent;

(c) the manner and periodicity of the provision of supporting documents by the sales agent to ensure the payment institution's obligation to the Czech National Bank;

(d) the way in which the commercial agent is trained to ensure the required quality of the payment services provided and compliance with applicable legislation;

(e) the criteria for assessing the credibility, competence and sufficient experience of a commercial agent who is a natural person and of a manager of a commercial agent who is a legal person, including a list of documents that the payment institution will require from the commercial agent for this purpose;

(f) the means of continuous verification of credibility, competence and sufficient experience of each person referred to in (e);

(g) the way in which the data on each person referred to in (e) are kept, recorded and updated.

(2) The applicant shall also submit a draft standard contract between the payment institution and the agent.

HLAVA II

PROVISION OF PAYMENT SERVICES OF SMALL SCOPE

§ 5

Application for entry in the register of small-scale payment service providers

(Paragraph 37 (3) of the Act)

(1) An application for entry in the register of small-scale payment service providers shall be made on a form, the model of which is set out in Annex 4 to this Order. The application shall include the annexes referred to in paragraphs 2 to 5.

(2) An annex containing basic information on the applicant shall be a document of the business authorisation.

(3) Annexes containing information on the applicant if he is a natural person and the lead person are:

(a) a proof of integrity issued by the applicant's foreign State and by each manager; and

(b) the questionnaire provided for in Annex 12 to this Order for each person in charge.

(4) Annexes containing information related to the requested activities of a small-scale payment service provider are:

(a) a business plan in which the applicant also assesses compliance with the limits under Article 36 (2) of the Act, with sufficient planning for the first 12 months of the activities required;

(b) a description of the arrangements for the implementation of individual payment services pursuant to Article 8 (1) of the Act and the activities related thereto which the applicant intends to provide, taking into account the applicant's individual conditions, 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 issue of payment instruments and the provision of credit; and

(c) the method chosen to protect the funds entrusted to execute the payment transaction; Depending on the method of protection chosen pursuant to § 20 (1) or (2) of the Act, the procedures for ensuring the proper and separate registration of such entrusted funds and their deposit in a separate account and the rules for the investment of funds, or the draft insurance contract or contract providing for another comparable guarantee, together with the confirmation of a person under § 20 (3) of the Act, that, in the case of the entry of an applicant in the register of small-scale payment service providers, the contract will be concluded.

(5) If the applicant intends to grant consumer credit under the Consumer Credit Act in connection with the exercise of the activity under Paragraph 8 (1) (b) of the Act, he shall also attach proof of the amount of initial capital (23) and of its origin.

(6) Where a small-scale payment service provider applies pursuant to Section 42 of the Law on the extension of the scope of payment services, it shall submit an application on a form, the model of which is set out in Annex 4 to this Order. The application shall include the annexes referred to in paragraph 4 for which there is a change in the scope of payment services. Where an application for extension of the registration for the provision of consumer credit is made under the Consumer Credit Act, it shall also attach the documents referred to in paragraph 5.

HLAVA III

ELECTRONIC MONEY INSTITUTION

§ 6

Application for authorisation to operate an electronic money institution

(Paragraph 47 (3) of the Law)

(1) An application for authorisation to operate an electronic money institution shall be made on a form, a model of which is given in Annex 5 to this Order. The application shall include the annexes referred to in paragraphs 2 to 5.

(2) The Annexes containing the basic information on the applicant are:

(a) proof of a business authorisation;

(b) proof of origin of the initial capital and, where applicable, other financial resources and the extent of the paying-up of the capital, unless this information is apparent from the document of the business authorisation;

(c) financial statements; and

(d) a list of applications for annulment of decisions of the applicant's highest authority which, at the date on which the application was lodged, have not been definitively closed, where such applications have been made and where such proposals are likely to have a significant impact on the continued functioning of the company.

(3) Annexes containing information related to the requested activity of the electronic money institution shall be:

(a) a business plan;

(b) a description of the management and control system within the scope of Section 52c (1) to (5) of the Act and of this Decree;

(c) the method chosen to protect funds pursuant to Article 52e (1) or (2) of the Act, if it is the funds against which electronic money is to be issued or the funds entrusted for the execution of a payment transaction not involving electronic money; depending on the method of protection chosen, the procedures to ensure the proper and separate registration of such funds and their deposit in a separate account and the rules for investing funds, or a draft insurance contract or contract providing for another comparable guarantee, together with the confirmation of a person under Section 52e (3) of the Act that, in the case of an authorisation to operate an electronic money institution, the contract will be concluded;

(d) a description of how the individual activities under Section 46 (2) of the Act and related activities which the applicant intends to provide, taking into account the individual conditions of the applicant, in particular a description of the issuance and storage of electronic money and the execution of payment transactions, including their exchange, the handling of cash and non-cash cash means, the course of the payment transaction including the acceptance and execution of payment orders, the issue of payment instruments and the provision of credit;

(e) a description of the personnel, organisational and technical security of the various activities, which shall always include the expected number of staff divided into the relevant organisational departments, a description of the information system, the accounting and financial reporting system, and, where the applicant intends to use the commercial agents, a description of their activities and checks,

(f) a description of the subject matter, scope and manner in which an electronic money institution carries out business activities other than those for which authorisation under the law is required; and

(g) the draft approach to be applied by the electronic money institution in the calculation of the capital requirement to cover the risks associated with the provision of payment services not related to electronic money, including 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 report on the capital of the electronic money institution provided by the Order on the submission of information by the Czech National Bank20).

(4) The Annexes containing information on the applicant's managers shall be:

(a) the questionnaire provided for in Annex 2 to this Order, completed for each person in charge;

(b) data on professional experience and training of any lead person who actually manages electronic money issuance and payment services activities; and

(c) proof of integrity issued by the foreign State to each of the managers.

(5) Annexes containing information on persons with qualified participation in the applicant and persons with close links with the applicant shall be:

(a) a list of persons who have qualified participation in the applicant and persons who, acting in agreement with another person, have qualified participation in the applicant, including graphically illustrated relations between those persons, with details of those persons, indicating the amount of the participation in the applicant, or other forms of participation in the applicant, the fact on the basis of which the conduct is based, and the questionnaire provided for in Annex 3 to this Regulation, completed for each person included in that list;