Circular No. 2014-01 - Bounced Cheques Information Service

Circular on the Bounced Cheques Information Service Year 2014 / Number 01 (Consolidated text as of 28/02/2022 – Update I)

Definitions
For the purposes of this Circular, the following terms are understood as:
a) "Cheques": bank cheques drawn on San Marinese banks; b) "Supervisory Authority": the Central Bank of the Republic of San Marino; c) "Sanctions Decree": Decree 30 May 2006, No. 76 and subsequent amendments; d) "Identification Document": a document currently in force, containing a photograph and the indication of all personal details of a natural person and issued by a national or foreign public authority; e) "LISF": Law 17 November 2005 No. 165 and subsequent amendments; f) "Bounced Cheques Information Service": the Service referred to in Article 51 of Law 17 November 2005 No. 165 and subsequent amendments; g) "Receiving Entities": banks and financial companies, as subjects authorized to exercise credit in an entrepreneurial form; h) "Reporting Entities": banks, as subjects drawing up bounced cheques.

Preamble
On 6 December 2004, therefore prior to the LISF, the Central Bank of the Republic of San Marino (Supervision Division) issued Circular No. 41, concerning the "Cheque protest in accordance with Art. 1 Law 24/11/1970 No. 47", by which, in addition to indicating the reporting methods, to be carried out by delivering the Annex of Circular No. 41, it also laid down precise obligations regarding the raising of the protest. Subsequently, the LISF in Article 51 regulated the matter again, confirming the competence of the SUPERVISORY AUTHORITY regarding the management of the BOUNCED CHEQUES INFORMATION SERVICE as well as the power of the SUPERVISORY AUTHORITY to regulate its organization and functioning.

Objectives
The main purpose of this Circular is therefore to update the current legislation, thereby giving full effect to Article 51 of the LISF, also taking into account the new developments, including in terms of the breadth of the recipients of the legislation. As a result of this Circular, in fact:
a) the methods of access to information by subjects listed in the BOUNCED CHEQUES INFORMATION SERVICE are precisely regulated; b) the objectives and therefore the responsibilities connected to the updating of the data provided are clarified; c) the methods of transmission of information regarding the BOUNCED CHEQUES INFORMATION SERVICE, from and to the REPORTING ENTITIES, the RECEIVING ENTITIES and the SUPERVISORY AUTHORITY, will be reviewed with a specific operational manual; d) the list of data necessary for each reported protest is updated, providing a precise description for each.

Provisions
Article 1 - Transmission of reports

1. The REPORTING ENTITIES, within the tenth working day of each calendar month, according to the Calendar of the San Marinese Payment System, must send to the SUPERVISORY AUTHORITY the report called "List of Protested Cheques", concerning information on protests raised during the previous calendar month.
2. The List of Protested Cheques must also be transmitted in the event that no protests were raised in the calendar month in question (so-called blank report), to confirm their absence.

Article 2 – Operational Manual

1. The completion methods of the electronic model (List of Protested Cheques) and the channels for the transmissions referred to in Articles 1 and 3 are reported in the Operational Manual which will be published on the website www.bcsm.sm at least 60 days in advance of the entry into force of this Circular.
2. Any future updates to the Operational Manual will be made public in the same forms as in the previous paragraph, following direct communication to each REPORTING ENTITY.

Article 3 - Aggregation and transmission of information

1. The SUPERVISORY AUTHORITY, upon receiving the information from the REPORTING ENTITIES with the submission of the List of Protested Cheques, proceeds to aggregate them:
   a) by reordering the information received in alphabetical order of the protested subject; b) by grouping the protests referable to the same subject, thus having a single overall monthly data at the level of the San Marinese banking system; c) by making ex officio, or after verification with the REPORTING ENTITY, only corrections to obvious material errors or discrepancies between data referable to the same subject.
2. The SUPERVISORY AUTHORITY, having completed the aggregation of the data received within the terms indicated above, transmits for prudential purposes, to the RECEIVING ENTITIES, the monthly elaboration containing all the information received except for the identity of the REPORTING ENTITY, also in relation to the aggregation procedures already carried out.
3. Save for cases of force majeure or otherwise not directly dependent on the work of the SUPERVISORY AUTHORITY, the transmission of information in aggregated form to the RECEIVING ENTITIES is carried out within five working days following the deadline for the submission of the List of Protested Cheques indicated in the previous Article 1, paragraph 1.

Article 4 - Responsibility for the information provided by the Bounced Cheques Information Service

1. Taking into account what is already provided for in Article 51, paragraph 5 of the LISF, also considering that the aggregation and subsequent transmission referred to in Article 3 are carried out by the SUPERVISORY AUTHORITY exclusively on the basis of the reports received from the REPORTING ENTITIES and transposing only the contents of the same reports, the persons responsible for the correctness, truthfulness and completeness of the information subject to the BOUNCED CHEQUES INFORMATION SERVICE are solely the REPORTING ENTITIES, also towards third parties potentially damaged due to their errors or omissions.
2. The SUPERVISORY AUTHORITY is therefore responsible only for any errors in the aggregation of the data received or in the communication to the interested party, in accordance with what is provided below in Article 7, regarding the identity of the REPORTING ENTITY.

Article 5 - Corrections and/or cancellations

1. Taking into account what specified in the previous Article 4, any corrections and/or cancellations regarding the information subject to reporting and already provided by the BOUNCED CHEQUES INFORMATION SERVICE, will be possible exclusively upon request of the REPORTING ENTITY.
2. The REPORTING ENTITY, for the purposes of the previous paragraph, will act on its own initiative or by order of the Judicial Authority, in the same methods and forms used for the reports, so that the information is then disseminated by the SUPERVISORY AUTHORITY to all RECEIVING ENTITIES at the time of the first useful monthly transmission.

Article 6 - Content of the List of Protested Cheques

1. The List of Protested Cheques must report, with reference to each CHEQUE protested in the reference month, the following information:

a) progressive number of the annotation; b) surname and name of the "drawer", i.e., the natural person who drew, with their signature, the CHEQUE on the REPORTING ENTITY; c) date of birth of the drawer; d) place of birth of the drawer; e) residence address of the drawer; f) the ISS code or equivalent foreign identification code of the drawer; g) company name of the enterprise in whose name the CHEQUE was eventually drawn; h) economic operator code (COE) or equivalent foreign code of the enterprise, in the cases referred to in the previous letter g); i) address of the registered office of the enterprise, in the cases referred to in the previous letter g); l) amount of the CHEQUE for which the protest was raised; m) identification number of the CHEQUE; n) date on which the protest was raised; o) any further data, useful to complete the information:
o1) on an objective level, it must be indicated whether the CHEQUE was protested for causes other than or in addition to lack of funds (forged signature, counterfeit signature, closed account, stolen CHEQUE, seized CHEQUE, CHEQUE reported lost or stolen); o2) on a subjective level, it must be indicated:

• in the case of an enterprise: in what capacity the drawer issued the CHEQUE in their name (president, administrator, proxy, owner);
• in the case of a joint account: the complete details of the other co-owners of the current account on which the CHEQUE was drawn;
• in the case of a proxy: the complete details of the owner (or owners) of the current account who delegated the drawer to issue CHEQUES on their behalf;
• in any other case of non-coincidence, even partial, between the drawer subject and the title of the current account of the drawer, the exact title of the banking relationship.

2. In the case of CHEQUES drawn with a forged signature, i.e., completely different from the deposited specimens, or with a counterfeit signature, i.e., imitated but not conforming, the only data to be inserted will be:
   a) progressive number of the annotation; b) "UNKNOWN"; c) amount of the CHEQUE for which the protest was raised; d) identification number of the CHEQUE; e) date on which the protest was raised; f) "CHEQUE with forged signature" or "CHEQUE with counterfeit signature", followed by the complete details of the owner (or owners) of the current account on which the CHEQUE was drawn ("......drawn on current account owned by ............, born in ......... on ............ and residing in ............. in ..............."), except in the case where they have previously reported the theft or loss ("..... and subject to prior report").
3. In the case of a CHEQUE drawn with a joint signature, the same will be recorded in the List of Protested Cheques as many times as there are signatures reported therein.

Article 7 - Subjects entitled to query the Bounced Cheques Information Service

1. In accordance with Article 51, paragraph 4 of the LISF, anyone can request the SUPERVISORY AUTHORITY to know if there is information against them within the BOUNCED CHEQUES INFORMATION SERVICE and, if positive, what its content is, including the REPORTING ENTITY from which the report originated.

2. The request above, in addition to being made by the interested subject, can also be made by their guardian, curator or heir in possession of suitable documentation attesting to their powers of representation.

3. For legal persons, the request must be signed by the legal representative or by another person duly authorized to do so.

Article 8 - Methods of querying

1. The request referred to in the previous Article 7 can be submitted to the Central Bank of the Republic of San Marino – Bounced Cheques Information Service, using the specific form available on the website www.bcsm.sm, according to one of the two methods described below:
   a) postal submission of the form with the signature at the bottom authenticated by a San Marinese Notary or in digital format in accordance with the law; b) signing of the same form directly at the offices of the SUPERVISORY AUTHORITY, by appointment and upon presentation of an IDENTIFICATION DOCUMENT.
2. In no case does the SUPERVISORY AUTHORITY reveal information other than that directly and strictly pertinent, in any capacity, to the applicant, as it is subject to the provisions of Article 29 of Law 29 June 2005 No. 96.

Article 9 - Sanctions

1. Violations of the provisions contained in this Circular are punished in accordance with Article 18 of the SANCTIONS DECREE, with a minimum of € 500.00 and a maximum of € 10,000.00, according to the procedures and criteria provided for in the cited decree.

Article 10 - Final provisions

1. This Circular repeals Circular No. 41 of 6 December 2004 addressed to banks.
2. This Circular enters into force on 1 January 2015, starting from the report referring to protests raised in the month of January 2015.