1. Exchanging units of value and the develoment of ‘money’
Electronic money, notwithstanding the fancy name, bears strikingly similar functionality to the paper and coin money we are all familiar with. Therefore before I proceed with explaining the concept of E-money, European E-money Institutions (hereafter referred to as ‘EMIs’), and the legal framework permitting the passporting of these institutions inter-EU states, I will first elucidate some reasons for the use of ‘money’ as a means of payment. Incidentally ‘E-money Institutions’ merely refers to those entities which are authorised to issue e-money lawfully, however, I shall return to this point later.
As a rule, the paper notes and metal coins which we use as ‘money’ hold a low intrinsic value. Nevertheless, they act as a token representing greater value. The credit institution[1] on issuing these tokens gives rise to a claim in favour of their bearer which the institution undertakes to make good up to a pre-determined value. This value is imprinted on the token and denoted in monetary terms.
One can observe that a credit institution would issue the tokens in a selective manner. Namely, they are issued in favour of persons holding an account with the banking institution in question in lieu of the value which those persons have deposited with the bank.
2. What is ‘electronic money’?
E-money functions on the same principle and serves an analogous function to paper and coin money. An institution issues (e-money) tokens[2] of low intrinsic value to particular individuals. The claim in question is for a pre-determined value, higher than the intrinsic value of the token, which the issuer undertakes to make good up to the same pre-determined value. Similar to the deposits of persons in a credit institution, e-money is issued in lieu of a pre-paid value (money) by the bearer of the e-money token to the credit of the issuer.
Consequently the value of the claim is customarily denoted in monetary terms, however, the transfer of value is by e-money which marks it apart from debit and credit cards where token money is transferred from say the buyers account to the sellers account. [3] Finally, in order to be considered ‘e-money’ the token should be accepted as a means of payment by a party other than the issuer.[4]
3. Regulation of EMIs in Malta
Notwithstanding the close similarities between the two payment systems, the Second E-Money Directive (hereafter referred to as ‘2EMD’),[5] which regulates the issue of e-money, considers that e-money need not be issued by only credit institutions.[6] An EMI may be used as an alternative when the specific task of issuing e-money only is required.[7]
The Malta Financial Institutions Act, which supplemented by subsidiary legislation[8] and the MFSA’s Financial Institutions Rules (hereafter referred to as ‘FIRs’), transposes the provisions of 2EMD.[9] EMIs are classified in the Act under the umbrella term ‘Financial Institutions’.[10] This is distinct from credit institutions, which are authorised under the Malta Banking Act 1994.[11] As explained the activities of financial institutions and credit institutions may be similar in nature. However, the Act specifies that as the point of demarcation between the two, a financial institution may not raise funds by taking ‘deposits’[12] or other funds from the general public.[13] Of course a credit institution, a bank, can so raise funds.
This marks a point of diversion from the First E-Money Directive (hereafter referred to as ‘1EMD’),[14] which permitted the functions of EMI to be conducted only by credit institutions on account of the stringent prudential and compliance requirements they are subject to.[15] The immediate benefit is that less stringent requirements apply to financial institutions. In theory at least this should promote their popularity. However, in parallel with the establishment of ‘stand-alone’ EMIs introduced by the 2EMD, EMIs were also made subject to prudential and supervisory rules as with credit institutions, albeit of a nature which reflects the formers business.
It should be noted that under the Act varying levels of prudential supervision rules apply according to the type of financial institution in question. For the purpose of this paper, I shall focus on the rules applicable to financial institutions acting as EMIs which issue electronic money only.[16]
4. Authorisation as a pre-requisite to operating as an EMI
An EMI may only issue electronic money in and/or from Malta if firstly it operates through a company and secondly if it possesses a valid licence to perform this function by the competent authority. In terms of the Act[17] the competent authority is the Malta Financial Services Authority (hereafter referred to as the ‘MFSA’).[18]
4.1. Prudential supervision of an EMI
The Act provides that the MFSA should only authorise an entity to issue electronic money after it has ascertained that the applicant will conduct this activity in a prudent manner.[19] In this regard an applicant should abide by a number of pre-conditions in order to receive a licence under the Act.[20] The MFSA has issued FIR/01 which elucidates the pre-conditions for the granting of a licence.[21]
In brief, the following are some of the preconditions which apply to the applicant:-
-
Initial capital of not less than €350,000;[22]
-
The entity must have at least 2 directors;[23]
-
All persons directing the business must pass a fit and proper test;[24]
-
A clear and sound business plan;[25]
-
Effective supervision of the entity can be maintained by the MFSA at all times throughout the duration of the licence.[26]
A significant number of other requirements are established by FIR/01 which should accompany an application form for a licence under the Act.[27] I reiterate my point that the preconditions serve to ensure the responsible and prudent holding of a licence and subsequent conduct of business by an EMI.
4.2. Ongoing prudential supervision of EMIs
Subsequent to the issue of a licence, ongoing regulatory requirements contingent for the maintenance of a licence under the Act apply.[28] These include the regulation the activities which an EMI may carry out, updated compliance conditions, ‘own funds’ requirements and other. The MFSA has issued FIR/03/2011 in this regard which lists certain specific provisions on post-licensing prudential and compliance requirements.[29]
EMIs authorised under the Act are expected to hold own funds calculated according to “Method D” of 2EMD.[30] Accordingly, an EMIs own funds shall amount to at least 2% of the average outstanding electronic money.[31] Moreover, the Act envisages that EMIs also observe the rules on own funds applicable to credit institutions.[32]
On the basis of an evaluation by the MFSA of the entity’s risk-management processes, risk loss databases and internal control mechanisms, the MFSA may order a amendment of the own funds requirements to 20% higher or 20% lower than the amount of own funds which is obtained using the calculation in terms of ‘Method D’.
4.3. Waiving the requirements of prudential supervision of EMIs
The 2EMD contemplates that local authorities in each EU MS may waive the application of all or part of the above prudential and compliance requirements in relation to EMIs.[33] The MFSA is authorised under the Act to waive the application of part of the prudential and compliance requirements as set out in the Act and FIRs during the application for a licence under the Act and there after.
However, this exemption is envisaged in relation to ‘small electronic money issuers’ only. That is EMIs in relation to which:
-
the total business activities of the EMI generates an average outstanding electronic money of less than €2,000,000;
-
none of the natural persons responsible for the management or operation of the EMI’s business has been convicted of offences relating to money laundering or terrorist financing or other financial crimes;[34]
-
-
the payment instrument of the consumer where the electronic money is stored does not exceed €250 in value.[35]
The effect of the waiver is to grant a number of derogations from the preconditions referred to in point 3.1 above. Therefore an entity satisfying the three requirements above is still subject to prudential supervision, initial capital, own funds and safeguarding requirements. However, this supervision is applied less stringently at the discretion of the MFSA.[36] For instance, the initial capital requirement of a small electronic money issuer availing itself of this waiver is of €50,000 to €100,000, rather than €350,000 as held in point 3.2 above.[37]
5. A Malta EMI passporting its activity to another Member State
The effect of the standards imposed by 2EMD across all EU and EEA member states (hereafter referred to as ‘MS’) is that as a general rule, an EMI licensed in one MS may issue electronic money in any other MS without requiring to obtain a (another) licence and satisfy the prudential supervision rules imposed by the second MS.[38] In the case of a Malta EMI wishing to so ‘passport’ the issue of electronic money in MS, it should inform the MFSA of:-
-
its intention to passport its services,
-
the identity of the second MS;
-
the name of the Malta EMI and its head office address;
-
the activities which the Malta EMI intends to perform in the second MS.[39]
Furthermore, where the operation shall be passported by the opening of a branch in the foreign MS it should inform the MFSA of:
-
the name of the MS in which it intends to establish a branch;[40]
-
the name and address of the head office of the Malta EMI;[41]
-
the activities which the Malta EMI intends to carry out in the MS;[42]
-
the address of the proposed branch;[43]
-
the names of those responsible for the management of the proposed branch;[44] and
-
the organisational structure of the proposed branch.[45]
The MFSA shall transmit the said information to the relevant authorities in the second MS within a month of receiving them.[46] The foreign authority, having received this information, will communicate this point with the MFSA, enabling the Malta EMI to passport its activities into the foreign territory.[47] In the event that a branch shall be established, the MFSA would accordingly register the branch.[48]
6. Prohibition from passporting the activity of an EMI to another MS
Directive 2000/46/EC,[49] which was the predecessor of the 2EMD, had established that an EMI which is exempted from the prudential framework established by EU law, would be prohibited from passporting its services beyond its home MS, that is, beyond the territory of the MS which granted the exemption.[50]
This prohibition is one of the tenets of the 2EMD. In fact recital 16 thereof specifies that; ‘(...) institutions benefiting from such a waiver[51] should not have the right under this Directive[52] to exercise the freedom of establishment or the freedom to provide services and they should not indirectly exercise those rights (...)’.[53]
As explained above, the Act does envisage such a waiver in favour of small electronic money issuers in terms of point 3.4 above.[54] While the Act and the Rules do not transpose the corresponding prohibition to passport, it is established in terms of FIR/03/2011 which provides that; ‘An electronic money institution, to the exclusion of a small electronic money issuer, may exercise a European right to issue electronic money in another Member State or EEA State (...).’[55] (emphasis added)
7. Passporting of European EMIs into Malta
In a similar fashion to the passport of Malta EMIs’ services out of Malta, foreign EMIs may passport their services and issue electronic money in Malta either through the establishment of a branch or under the freedom to provide services into Malta.[56] On satisfying the conditions below, there is therefore no requirement to obtain a licence under the Act and satisfy the prudential supervision rules imposed by the Act, the Rules and FIRs.
Where a foreign licensed EMI wishes to issue electronic money in Malta it should communicate the following information to its home regulatory authority:
-
its intention to passport its activities to Malta;
-
the name and the head office address of the electronic money institution;
-
the activities it intends to provide;[57]
Furthermore, where the operation shall be passported by the opening of a branch in Malta, the foreign EMI should inform its home regulatory authority of:
-
the nature of the services which will be carried out;[58]
-
the name and address of the head office of the foreign EMI;[59]
-
the address of the proposed branch;[60]
-
the names of those responsible for the management of the proposed branch;[61] and
-
the organisational structure of the proposed branch.[62]
The foreign authority once in possession of the above information should tender it to the MFSA within one month of its receipt.[63] Upon the foreign regulatory authority informing the foreign EMI that this information was transferred to the MFSA, it may commence activities in Malta.[64] In the event that the foreign EMI wishes to set up a branch in Malta, the foreign regulatory authority may proceed to register a branch on the lapse of one month from the receipt of this information by the MFSA.[65]
[1] Commonly known as ‘banks’.
[2] This generally adopts a card of computer software format.
[3] ECB, Electronic money Institutions, Current Trends Regulatory Issues and Future Prospects, (July 2008, 11 – 12.
[4] The definition provided in the Malta Financial Institutions Act of e-money incorporates all these elements. See Third Schedule, point 1, Malta Financial Institutions Act. The definition proposed by Maltese statue implements the Europe wide definition of e-money implemented by Directive 2009/110/EC of the European Parliament and of the Council (16 September 2009) on the taking up, pursuit and prudential supervision of the business of electronic money institutions
[5] Directive 2009/110/EC of the European Parliament and of the Council (16 September 2009) on the taking up, pursuit and prudential supervision of the business of electronic money institutions amending Directives 2005/60/EC and 2006/48/EC and repealing Directive 2000/46/EC (Text with EEA relevance) (Second E-money Directive – 2EMD). Directive 2009/110/EC is a new and maximum harmonising directive; it repeals Directive 2000/46/EC formerly the 2EMD. As a product of the 2EMD the prudential regime which applies to electronic money institutions (EMIs) is made to reflect the prudential regime imposed on payment institutions (hereafter referred to as ‘PI’, which refer to firms (other than credit or electronic money institutions) that carry out or intend to carry out payment services) under the Payment Services Directive (Directive 2007/64/EC) - particularly with regards to capital, safeguarding requirements, general prudential rules, authorisation and registration. Deposit taking by the EMI is still specifically excluded.
[7] It should be pointed out that EMIs may perform other activities, see Article 2 of the Third Schedule to the Malta Financial Institutions Act, which do not extend so far so as to cover the remit of credit institutions’ activities. However, this is beyond the scope of this paper.
[8] European Passport Rights for Financial Institutions Regulations, S.L. 376.05 (hereafter referred to as the ‘Rules’)
[9] Chapter 376 of the laws of Malta, hereafter referred to as the ‘Act’ and European Passport Rights for Financial Institutions Regulations, S.L. 376.05 of the laws of Malta (hereafter referred to as the ‘Passporting Regulations’).
[10] First Schedule, point 10, the Act. In terms of the Act, a financial institution may be one of the following; (1) a payment institution (hereafter referred to as ‘PI’), (2) an EMI, or (3) another institution carrying out one of the activities contained in the First Schedule to the Act.
[11] Chapter 371 of the laws of Malta.
[12] ‘Deposit’ is defined in S.(2)(1) of the Malta Banking Act as a sum of money paid to a Bank on terms under which it will be repaid, with or without interest or a premium and either on demand or at a time or in circumstances agreed by or on behalf of the person making the payment and the person receiving it.
[13] S.3(5), the Act. This prohibition does not prevent a financial institution from raising funds from other institutions say on the interbank market or from other professional market parties such as institutional investors and insurance companies.
[14] Directive 2000/28/EC of the European Parliament and of the Council (18 September 2000) amending Directive 2000/12/EC relating to the taking up and pursuit of the business of credit institutions.
[15] A.1(1), 1EMD. In turn the 1EMD had amended the definition of ‘credit institution’ as established in the First Council Directive 77/780/EEC (12 December 1977) on the coordination of the laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions, which did not include EMIs.
[16] That is, financial institutions which carry out activity number 10 in the First Schedule of the Act, namely; ‘Issuing of electronic money as defined in the Third Schedule.’
[18] S.3(1), the Act. The requirement by the Act for the business of a financial institution to be carried out by a company implements the provision of A.2(1), 2EMI.
[19] See S.5(1)(c) and S.13(4), the Act.
[21] MFSA, ‘Application Procedures and Requirements for Authorisation of Licences under the Financial Institutions Act 1994, FIR/01/2011. This FIR is issued under S.4, the Act.
[22] S.5(1)(a), the Act and Rule 18, FIR/03.
[27] See Rule 28(a-n), FIR/01.
[29] MFSA, Taking up, Pursuit of and Prudential Supervision of the Business of Financial Institutions Authorised to Issue Electronic Money Under the Financial Institutions Act 1994, FIR/03/2011.
[31] A.2(4), 2EMD, ‘average outstanding electronic money’ is defined as the average total amount of financial liabilities related to electronic money in issue at the end of each calendar day over the preceding six calendar months, calculated on the first calendar day of each calendar month and applied for that calendar month.
[32] S.5A, the Act. The own fund rules applicable to credit institutions are available on MFSA, ‘Own Funds Of Credit Institutions Authorised Under The Banking Act 1994’ BR/03/2011.
[33] A.1(3), 2EMD and A.2, Directive 2006/48/EC, the prudential and compliance requirements may not be waived in relation to member states’ central banks and post office giro institutions.
[34] S.3(7)(a-b), the Act
[35] S.3(7) proviso, the Act.
[37] Rule 28, FIR/03/2011.
[39] Rule 7(2), the Rules.
[40] Rule 8(2)(a), the Rules.
[41] Rule 8(2)(b), the Rules.
[42] Rule 8(2)(c), the Rules.
[43] Rule 4(2)(d), the Rules.
[44] Rule 4(2)(e), the Rules.
[45] Rule 4(f), the Rules. The MFSA is entitled to request additional information, as may be necessary for the fulfilment of its supervisory duties in respect of the establishment of a branch.
[46] Rule 7(3) & 8(3), the Rules.
[47] Rule 7(3–4), the Rules.
[48] Rule 8(8), the Rules. The MFSA would register the branch after one month from the transmission of the required information to the foreign authorities.
[49] Directive 2000/46/EC of the European Parliament and of the Council (18 September 2000) on the taking up, pursuit of and prudential supervision of the business of electronic money institutions.
[50] A.8(2), Directive 2000/46/EC.
[51] That is a waiver from the Requirements for the Taking Up, Pursuit and Prudential Supervision of the Business of Electronic Money Institutions in terms of Title II of 2EMD.
[52] ‘This Directive’ refers to 2EMD.
[54] Rule 34, ‘Electronic Money Institutions Benefiting from the Right to Passport’, FIR/03/2011.
[56] S.3 et seq, the Rules.
[57] Rule 3(2), the Rules.
[58] Rule 4(2)(a)(i)(iii), the Rules.
[59] Rule 4(2)(a)(ii), the Rules.
[60] Rule 4(2)(a)(iv), the Rules.
[61] Rule 4(2)(a)(v), the Rules.
[62] Rule 4(2)(a)(vi), the Rules & Rule 35, FIR/03/2011. The MFSA is entitled to request additional information, as may be necessary for the fulfilment of its supervisory duties in respect of the establishment of a branch.
[63] S.3(2)(b), the Rules.
[64] Rule 3(3), and Rule 4(2)(b) & (4), the Rules.
[65] Rule 4(4), the Rules.
1. Exchanging units of value and the develoment of ‘money’
Electronic money, notwithstanding the fancy name, bears strikingly similar functionality to the paper and coin money we are all familiar with. Therefore before I proceed with explaining the concept of E-money, European E-money Institutions (hereafter referred to as ‘EMIs’), and the legal framework permitting the passporting of these institutions inter-EU states, I will first elucidate some reasons for the use of ‘money’ as a means of payment. Incidentally ‘E-money Institutions’ merely refers to those entities which are authorised to issue e-money lawfully, however, I shall return to this point later.
As a rule, the paper notes and metal coins which we use as ‘money’ hold a low intrinsic value. Nevertheless, they act as a token representing greater value. The credit institution[1] on issuing these tokens gives rise to a claim in favour of their bearer which the institution undertakes to make good up to a pre-determined value. This value is imprinted on the token and denoted in monetary terms.
One can observe that a credit institution would issue the tokens in a selective manner. Namely, they are issued in favour of persons holding an account with the banking institution in question in lieu of the value which those persons have deposited with the bank.
2. What is ‘electronic money’?
E-money functions on the same principle and serves an analogous function to paper and coin money. An institution issues (e-money) tokens[2] of low intrinsic value to particular individuals. The claim in question is for a pre-determined value, higher than the intrinsic value of the token, which the issuer undertakes to make good up to the same pre-determined value. Similar to the deposits of persons in a credit institution, e-money is issued in lieu of a pre-paid value (money) by the bearer of the e-money token to the credit of the issuer.
Consequently the value of the claim is customarily denoted in monetary terms, however, the transfer of value is by e-money which marks it apart from debit and credit cards where token money is transferred from say the buyers account to the sellers account. [3] Finally, in order to be considered ‘e-money’ the token should be accepted as a means of payment by a party other than the issuer.[4]
3. Regulation of EMIs in Malta
Notwithstanding the close similarities between the two payment systems, the Second E-Money Directive (hereafter referred to as ‘2EMD’),[5] which regulates the issue of e-money, considers that e-money need not be issued by only credit institutions.[6] An EMI may be used as an alternative when the specific task of issuing e-money only is required.[7]
The Malta Financial Institutions Act, which supplemented by subsidiary legislation[8] and the MFSA’s Financial Institutions Rules (hereafter referred to as ‘FIRs’), transposes the provisions of 2EMD.[9] EMIs are classified in the Act under the umbrella term ‘Financial Institutions’.[10] This is distinct from credit institutions, which are authorised under the Malta Banking Act 1994.[11] As explained the activities of financial institutions and credit institutions may be similar in nature. However, the Act specifies that as the point of demarcation between the two, a financial institution may not raise funds by taking ‘deposits’[12] or other funds from the general public.[13] Of course a credit institution, a bank, can so raise funds.
This marks a point of diversion from the First E-Money Directive (hereafter referred to as ‘1EMD’),[14] which permitted the functions of EMI to be conducted only by credit institutions on account of the stringent prudential and compliance requirements they are subject to.[15] The immediate benefit is that less stringent requirements apply to financial institutions. In theory at least this should promote their popularity. However, in parallel with the establishment of ‘stand-alone’ EMIs introduced by the 2EMD, EMIs were also made subject to prudential and supervisory rules as with credit institutions, albeit of a nature which reflects the formers business.
It should be noted that under the Act varying levels of prudential supervision rules apply according to the type of financial institution in question. For the purpose of this paper, I shall focus on the rules applicable to financial institutions acting as EMIs which issue electronic money only.[16]
4. Authorisation as a pre-requisite to operating as an EMI
An EMI may only issue electronic money in and/or from Malta if firstly it operates through a company and secondly if it possesses a valid licence to perform this function by the competent authority. In terms of the Act[17] the competent authority is the Malta Financial Services Authority (hereafter referred to as the ‘MFSA’).[18]
4.1. Prudential supervision of an EMI
The Act provides that the MFSA should only authorise an entity to issue electronic money after it has ascertained that the applicant will conduct this activity in a prudent manner.[19] In this regard an applicant should abide by a number of pre-conditions in order to receive a licence under the Act.[20] The MFSA has issued FIR/01 which elucidates the pre-conditions for the granting of a licence.[21]
In brief, the following are some of the preconditions which apply to the applicant:-
-
Initial capital of not less than €350,000;[22]
-
The entity must have at least 2 directors;[23]
-
All persons directing the business must pass a fit and proper test;[24]
-
A clear and sound business plan;[25]
-
Effective supervision of the entity can be maintained by the MFSA at all times throughout the duration of the licence.[26]
A significant number of other requirements are established by FIR/01 which should accompany an application form for a licence under the Act.[27] I reiterate my point that the preconditions serve to ensure the responsible and prudent holding of a licence and subsequent conduct of business by an EMI.
4.2. Ongoing prudential supervision of EMIs
Subsequent to the issue of a licence, ongoing regulatory requirements contingent for the maintenance of a licence under the Act apply.[28] These include the regulation the activities which an EMI may carry out, updated compliance conditions, ‘own funds’ requirements and other. The MFSA has issued FIR/03/2011 in this regard which lists certain specific provisions on post-licensing prudential and compliance requirements.[29]
EMIs authorised under the Act are expected to hold own funds calculated according to “Method D” of 2EMD.[30] Accordingly, an EMIs own funds shall amount to at least 2% of the average outstanding electronic money.[31] Moreover, the Act envisages that EMIs also observe the rules on own funds applicable to credit institutions.[32]
On the basis of an evaluation by the MFSA of the entity’s risk-management processes, risk loss databases and internal control mechanisms, the MFSA may order a amendment of the own funds requirements to 20% higher or 20% lower than the amount of own funds which is obtained using the calculation in terms of ‘Method D’.
4.3. Waiving the requirements of prudential supervision of EMIs
The 2EMD contemplates that local authorities in each EU MS may waive the application of all or part of the above prudential and compliance requirements in relation to EMIs.[33] The MFSA is authorised under the Act to waive the application of part of the prudential and compliance requirements as set out in the Act and FIRs during the application for a licence under the Act and there after.
However, this exemption is envisaged in relation to ‘small electronic money issuers’ only. That is EMIs in relation to which:
-
the total business activities of the EMI generates an average outstanding electronic money of less than €2,000,000;
-
none of the natural persons responsible for the management or operation of the EMI’s business has been convicted of offences relating to money laundering or terrorist financing or other financial crimes;[34]
-
-
the payment instrument of the consumer where the electronic money is stored does not exceed €250 in value.[35]
The effect of the waiver is to grant a number of derogations from the preconditions referred to in point 3.1 above. Therefore an entity satisfying the three requirements above is still subject to prudential supervision, initial capital, own funds and safeguarding requirements. However, this supervision is applied less stringently at the discretion of the MFSA.[36] For instance, the initial capital requirement of a small electronic money issuer availing itself of this waiver is of €50,000 to €100,000, rather than €350,000 as held in point 3.2 above.[37]
5. A Malta EMI passporting its activity to another Member State
The effect of the standards imposed by 2EMD across all EU and EEA member states (hereafter referred to as ‘MS’) is that as a general rule, an EMI licensed in one MS may issue electronic money in any other MS without requiring to obtain a (another) licence and satisfy the prudential supervision rules imposed by the second MS.[38] In the case of a Malta EMI wishing to so ‘passport’ the issue of electronic money in MS, it should inform the MFSA of:-
-
its intention to passport its services,
-
the identity of the second MS;
-
the name of the Malta EMI and its head office address;
-
the activities which the Malta EMI intends to perform in the second MS.[39]
Furthermore, where the operation shall be passported by the opening of a branch in the foreign MS it should inform the MFSA of:
-
the name of the MS in which it intends to establish a branch;[40]
-
the name and address of the head office of the Malta EMI;[41]
-
the activities which the Malta EMI intends to carry out in the MS;[42]
-
the address of the proposed branch;[43]
-
the names of those responsible for the management of the proposed branch;[44] and
-
the organisational structure of the proposed branch.[45]
The MFSA shall transmit the said information to the relevant authorities in the second MS within a month of receiving them.[46] The foreign authority, having received this information, will communicate this point with the MFSA, enabling the Malta EMI to passport its activities into the foreign territory.[47] In the event that a branch shall be established, the MFSA would accordingly register the branch.[48]
6. Prohibition from passporting the activity of an EMI to another MS
Directive 2000/46/EC,[49] which was the predecessor of the 2EMD, had established that an EMI which is exempted from the prudential framework established by EU law, would be prohibited from passporting its services beyond its home MS, that is, beyond the territory of the MS which granted the exemption.[50]
This prohibition is one of the tenets of the 2EMD. In fact recital 16 thereof specifies that; ‘(...) institutions benefiting from such a waiver[51] should not have the right under this Directive[52] to exercise the freedom of establishment or the freedom to provide services and they should not indirectly exercise those rights (...)’.[53]
As explained above, the Act does envisage such a waiver in favour of small electronic money issuers in terms of point 3.4 above.[54] While the Act and the Rules do not transpose the corresponding prohibition to passport, it is established in terms of FIR/03/2011 which provides that; ‘An electronic money institution, to the exclusion of a small electronic money issuer, may exercise a European right to issue electronic money in another Member State or EEA State (...).’[55] (emphasis added)
7. Passporting of European EMIs into Malta
In a similar fashion to the passport of Malta EMIs’ services out of Malta, foreign EMIs may passport their services and issue electronic money in Malta either through the establishment of a branch or under the freedom to provide services into Malta.[56] On satisfying the conditions below, there is therefore no requirement to obtain a licence under the Act and satisfy the prudential supervision rules imposed by the Act, the Rules and FIRs.
Where a foreign licensed EMI wishes to issue electronic money in Malta it should communicate the following information to its home regulatory authority:
-
its intention to passport its activities to Malta;
-
the name and the head office address of the electronic money institution;
-
the activities it intends to provide;[57]
Furthermore, where the operation shall be passported by the opening of a branch in Malta, the foreign EMI should inform its home regulatory authority of:
-
the nature of the services which will be carried out;[58]
-
the name and address of the head office of the foreign EMI;[59]
-
the address of the proposed branch;[60]
-
the names of those responsible for the management of the proposed branch;[61] and
-
the organisational structure of the proposed branch.[62]
The foreign authority once in possession of the above information should tender it to the MFSA within one month of its receipt.[63] Upon the foreign regulatory authority informing the foreign EMI that this information was transferred to the MFSA, it may commence activities in Malta.[64] In the event that the foreign EMI wishes to set up a branch in Malta, the foreign regulatory authority may proceed to register a branch on the lapse of one month from the receipt of this information by the MFSA.[65]
[1] Commonly known as ‘banks’.
[2] This generally adopts a card of computer software format.
[3] ECB, Electronic money Institutions, Current Trends Regulatory Issues and Future Prospects, (July 2008, 11 – 12.
[4] The definition provided in the Malta Financial Institutions Act of e-money incorporates all these elements. See Third Schedule, point 1, Malta Financial Institutions Act. The definition proposed by Maltese statue implements the Europe wide definition of e-money implemented by Directive 2009/110/EC of the European Parliament and of the Council (16 September 2009) on the taking up, pursuit and prudential supervision of the business of electronic money institutions
[5] Directive 2009/110/EC of the European Parliament and of the Council (16 September 2009) on the taking up, pursuit and prudential supervision of the business of electronic money institutions amending Directives 2005/60/EC and 2006/48/EC and repealing Directive 2000/46/EC (Text with EEA relevance) (Second E-money Directive – 2EMD). Directive 2009/110/EC is a new and maximum harmonising directive; it repeals Directive 2000/46/EC formerly the 2EMD. As a product of the 2EMD the prudential regime which applies to electronic money institutions (EMIs) is made to reflect the prudential regime imposed on payment institutions (hereafter referred to as ‘PI’, which refer to firms (other than credit or electronic money institutions) that carry out or intend to carry out payment services) under the Payment Services Directive (Directive 2007/64/EC) - particularly with regards to capital, safeguarding requirements, general prudential rules, authorisation and registration. Deposit taking by the EMI is still specifically excluded.
[7] It should be pointed out that EMIs may perform other activities, see Article 2 of the Third Schedule to the Malta Financial Institutions Act, which do not extend so far so as to cover the remit of credit institutions’ activities. However, this is beyond the scope of this paper.
[8] European Passport Rights for Financial Institutions Regulations, S.L. 376.05 (hereafter referred to as the ‘Rules’)
[9] Chapter 376 of the laws of Malta, hereafter referred to as the ‘Act’ and European Passport Rights for Financial Institutions Regulations, S.L. 376.05 of the laws of Malta (hereafter referred to as the ‘Passporting Regulations’).
[10] First Schedule, point 10, the Act. In terms of the Act, a financial institution may be one of the following; (1) a payment institution (hereafter referred to as ‘PI’), (2) an EMI, or (3) another institution carrying out one of the activities contained in the First Schedule to the Act.
[11] Chapter 371 of the laws of Malta.
[12] ‘Deposit’ is defined in S.(2)(1) of the Malta Banking Act as a sum of money paid to a Bank on terms under which it will be repaid, with or without interest or a premium and either on demand or at a time or in circumstances agreed by or on behalf of the person making the payment and the person receiving it.
[13] S.3(5), the Act. This prohibition does not prevent a financial institution from raising funds from other institutions say on the interbank market or from other professional market parties such as institutional investors and insurance companies.
[14] Directive 2000/28/EC of the European Parliament and of the Council (18 September 2000) amending Directive 2000/12/EC relating to the taking up and pursuit of the business of credit institutions.
[15] A.1(1), 1EMD. In turn the 1EMD had amended the definition of ‘credit institution’ as established in the First Council Directive 77/780/EEC (12 December 1977) on the coordination of the laws, regulations and administrative provisions relating to the taking up and pursuit of the business of credit institutions, which did not include EMIs.
[16] That is, financial institutions which carry out activity number 10 in the First Schedule of the Act, namely; ‘Issuing of electronic money as defined in the Third Schedule.’
[18] S.3(1), the Act. The requirement by the Act for the business of a financial institution to be carried out by a company implements the provision of A.2(1), 2EMI.
[19] See S.5(1)(c) and S.13(4), the Act.
[21] MFSA, ‘Application Procedures and Requirements for Authorisation of Licences under the Financial Institutions Act 1994, FIR/01/2011. This FIR is issued under S.4, the Act.
[22] S.5(1)(a), the Act and Rule 18, FIR/03.
[27] See Rule 28(a-n), FIR/01.
[29] MFSA, Taking up, Pursuit of and Prudential Supervision of the Business of Financial Institutions Authorised to Issue Electronic Money Under the Financial Institutions Act 1994, FIR/03/2011.
[31] A.2(4), 2EMD, ‘average outstanding electronic money’ is defined as the average total amount of financial liabilities related to electronic money in issue at the end of each calendar day over the preceding six calendar months, calculated on the first calendar day of each calendar month and applied for that calendar month.
[32] S.5A, the Act. The own fund rules applicable to credit institutions are available on MFSA, ‘Own Funds Of Credit Institutions Authorised Under The Banking Act 1994’ BR/03/2011.
[33] A.1(3), 2EMD and A.2, Directive 2006/48/EC, the prudential and compliance requirements may not be waived in relation to member states’ central banks and post office giro institutions.
[34] S.3(7)(a-b), the Act
[35] S.3(7) proviso, the Act.
[37] Rule 28, FIR/03/2011.
[39] Rule 7(2), the Rules.
[40] Rule 8(2)(a), the Rules.
[41] Rule 8(2)(b), the Rules.
[42] Rule 8(2)(c), the Rules.
[43] Rule 4(2)(d), the Rules.
[44] Rule 4(2)(e), the Rules.
[45] Rule 4(f), the Rules. The MFSA is entitled to request additional information, as may be necessary for the fulfilment of its supervisory duties in respect of the establishment of a branch.
[46] Rule 7(3) & 8(3), the Rules.
[47] Rule 7(3–4), the Rules.
[48] Rule 8(8), the Rules. The MFSA would register the branch after one month from the transmission of the required information to the foreign authorities.
[49] Directive 2000/46/EC of the European Parliament and of the Council (18 September 2000) on the taking up, pursuit of and prudential supervision of the business of electronic money institutions.
[50] A.8(2), Directive 2000/46/EC.
[51] That is a waiver from the Requirements for the Taking Up, Pursuit and Prudential Supervision of the Business of Electronic Money Institutions in terms of Title II of 2EMD.
[52] ‘This Directive’ refers to 2EMD.
[54] Rule 34, ‘Electronic Money Institutions Benefiting from the Right to Passport’, FIR/03/2011.
[56] S.3 et seq, the Rules.
[57] Rule 3(2), the Rules.
[58] Rule 4(2)(a)(i)(iii), the Rules.
[59] Rule 4(2)(a)(ii), the Rules.
[60] Rule 4(2)(a)(iv), the Rules.
[61] Rule 4(2)(a)(v), the Rules.
[62] Rule 4(2)(a)(vi), the Rules & Rule 35, FIR/03/2011. The MFSA is entitled to request additional information, as may be necessary for the fulfilment of its supervisory duties in respect of the establishment of a branch.
[63] S.3(2)(b), the Rules.
[64] Rule 3(3), and Rule 4(2)(b) & (4), the Rules.
[65] Rule 4(4), the Rules.