Notice No. 3/2023

Notice of the Bank of Portugal
No. 3/2023
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Published in: DR, 2nd Series, Part E, No. 52, of 14-03-2023 Mod. 99999939/T – 01/14

Index
Text of the Notice
Text of the Notice

The European Banking Authority (EBA) published, on 24 February 2022, the Guidelines on the exclusion relating to restricted networks under PSD2 (EBA/GL/2022/02, hereinafter, “Guidelines”), which entered into force on 1 June 2022.

These Guidelines specify the modalities for applying the exclusions provided for in Article 3(k)(i) and (ii) of Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market (PSD2), and specify the notification process under Article 37(2) as well as the description of the activity that must be made public under Article 37(5), all of the aforementioned Directive. The aforementioned PSD2 rules were transposed into the national legal order by Article 5(1)(k)(i) and (ii) and Article 6(1) of the Legal Regime of Payment Services and Electronic Money (RJSPME), approved in annex to Decree-Law No. 91/2018 of 12 November.

The Bank of Portugal, as the competent authority designated for the purposes of applying and supervising compliance with the RJSPME, transmitted to the EBA its intention to comply with the aforementioned Guidelines. Taking into account the provisions of Article 6(6) of the RJSPME, the Bank of Portugal hereby regulates the matter in question through this Notice, fulfilling the legal mandate in consonance with the content of the EBA Guidelines.

This Notice allows for greater simplicity, certainty, and predictability in the treatment of notifications received by the Bank of Portugal within the scope of the regulatory provisions applicable to the regime of restricted networks and the respective communication model, in line with continuity with the practice hitherto followed by the Bank of Portugal, which is largely already aligned with the EBA Guidelines.

This Notice was subject to public consultation, in accordance with Article 101 of the Administrative Procedure Code.

Thus, in the exercise of the competence conferred upon it by Articles 14 and 17 of its Organic Law, approved by Law No. 5/98 of 31 January, in its current wording, by the provisions of Article 6(6) and Article 7(1)(c), both of the RJSPME, in its current wording, the Bank of Portugal determines:

Notice of the Bank of Portugal No. 3/2023
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Chapter I
General Provisions

Article 1.
Object
This Notice regulates, in the exercise of the attributions conferred on the Bank of Portugal by Articles 6(6) and 7(1)(c) of the Legal Regime of Payment Services and Electronic Money (RJSPME), approved by Decree-Law No. 91/2018 of 12 November, the modalities for applying the exclusions provided for in Article 5(1)(k)(i) and (ii), as well as the communication procedure under Article 6(1) and (5), all of the aforementioned instrument.

Article 2.
Scope of Application
This Notice is applicable to services based on payment instruments that can only be used in a limited manner and that are:
a) Instruments that only allow the acquisition of goods or services by their holder at the issuer’s premises or in a restricted network of service providers directly linked by a commercial agreement to a professional issuer; b) Instruments that can only be used to acquire a very limited range of goods or services.

Article 3.
Recipients
The recipients of this Notice are the issuers of the payment instruments referred to in Article 2.

Chapter II
Communication Procedure and Supporting Elements

Article 4.
Communication Procedure under Article 6(1) of the RJSPME

1. The communication provided for in Article 6(1) of the RJSPME must be presented by the issuer when the total value of payment transactions executed in the previous 12 months exceeds the amount of one million euros.
2. The 12-month period referred to in the preceding paragraph begins on the date of issuance of the payment instrument.
3. The calculation of the threshold indicated in paragraph 1 is carried out at the level of each issuer, accounting for all payment transactions executed in its respective Member State and all specific payment instruments offered by the same issuer.

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4. The communication referred to in paragraph 1 must be presented by the issuer within a period of 30 days after the value of one million euros is reached.
5. The 30-day period referred to in the preceding paragraph begins on the next business day after the value of one million euros is reached.
6. The communication must be presented only once by the issuer, without prejudice to the provisions of Article 6 of this Notice.

Article 5.
Supporting Elements of the Communication

1. The communication referred to in the preceding article, provided for in Article 6(1) of the RJSPME, must be supported by the following elements:
   a) Indication of the type of exclusion under which the activity is exercised; b) Indication of whether the goods and/or services that can be acquired are physical and/or digital; c) Indication of other Member States where the service covered by the communication is provided by the same issuer; d) Indication of the volume and value of payment transactions that will be carried out annually with the payment instruments; e) Maximum amount to be credited to the payment instruments; f) Maximum number of payment instruments to be issued; g) Description of the risks to which the customer is exposed when using the specific payment instrument; h) Description of the activity developed, including proof that:
   i. Funds are transferred to the payment instrument through an intermediary other than the issuer, where this occurs;
   ii. Technical and contractual restrictions are applied that limit the use of the payment instrument;
   iii. The payment medium does not accommodate simultaneously payment instruments covered by the discipline of the RJSPME and specific payment instruments covered by the scope of application of Article 5(1)(k) of the aforementioned instrument;
   iv. The payment instrument cannot benefit from more than one exclusion provided for in Article 5 of the RJSPME, including other exclusions provided for in letter (k) of the aforementioned article.
   i) Any other information that allows competent authorities to assess the activity developed.
2. If the issuer is an entity that provides payment services or issues electronic money, under the discipline of the RJSPME, in accordance with Articles 11 and 12 of the RJSPME, it must provide elements proving the existence of:
   a) Clear and easily identifiable distinction, including through a specific visual manifestation, of the services provided under the exclusion identified in Article 5(1)(k) of the RJSPME, on the one hand, and regulated payment services and electronic money, on the other; and b) Information to the user of the specific payment instrument, in a simple and clear manner, that the services provided are not regulated and supervised and do not benefit from the protection of payment service users, thus being excluded from the scope of application of the RJSPME.
3. Without prejudice to the provisions of paragraphs 1 and 2, issuers of instruments intending to benefit from the exclusion identified in Article 5(1)(k)(i) of the RJSPME must also provide the following elements:
   a) Proof of the conclusion of a direct contractual agreement for the acceptance of payment transactions between the issuer of the payment instrument and each supplier of goods and services and, where applicable, each acceptor operating in the restricted network; b) The maximum planned number of suppliers of goods and services that can operate in the restricted network; c) Proof that the supplier offers goods and services under a common brand that characterizes the restricted network and provides a visual manifestation to the user of the payment instrument; d) The specific geographical area for the supply of goods and services, as defined by the issuer; e) Proof that the payment instrument cannot be used in different restricted networks of service providers; f) Proof that technical and contractual restrictions are applied that limit the use of the payment instrument to the physical premises of the issuer, in the case of instruments that only allow the acquisition of goods or services by their holder at the issuer’s premises.
4. Without prejudice to the provisions of paragraphs 1 and 2 of this article, issuers of instruments intending to benefit from the exclusion identified in Article 5(k)(ii) of the RJSPME must also prove the existence of a functional relationship between the goods or services that can be acquired with the payment instrument, including the indication of the specific category of goods or services with a common purpose.
5. The Bank of Portugal may request the issuer to provide additional information or clarifications, particularly if the information provided in the communication is incomplete, vague, or ambiguous, which must be provided within a period of 20 days.

Article 6.
Additional Communications

1. An additional communication must be presented to the Bank of Portugal whenever a substantial change has occurred or the issuer foresees a substantial change in any information related to the same specific payment instrument(s) provided in the initial communication, including if:
   a) The issuer intends to cease the provision of services benefiting from the exclusion; b) The issuer intends to increase the number of suppliers of goods and/or services, in the case of a service covered by Article 5(k)(i) of the RJSPME; c) The issuer intends to expand the specific geographical area for the supply of goods and/or services, in the case of a service covered by Article 5(k)(i) of the RJSPME; d) The issuer intends to offer services under Article 5(k)(i) or (ii) of the RJSPME based on an instrument not covered by the initial communication; e) The issuer intends to modify the specific category of goods and/or services previously notified, in the case of a service covered by Article 5(k)(ii); f) The issuer intends to indicate any changes regarding the Member States where the service covered by the communication is provided by the same issuer.
2. In the event of an intention to modify some of the elements referred to in the preceding paragraph, the issuer must communicate this in writing to the Bank of Portugal with a minimum advance of 30 days from the date of its occurrence.

Chapter III
Form of Communications and Publication

Article 7.
Publication of Instruments Covered by the Exclusion The instruments covered by the exclusions identified in letters (i) and (ii) of Article 5(k) of the RJSPME will be included in the register of the Bank of Portugal and in the central register of the European Banking Authority, containing a summary description of the notified activity, as well as any information regarding other Member States where the same issuer provides services covered by the aforementioned exclusions.

Article 8.
Method of Submission
The communication provided for in Article 6(1) of the RJSPME may be carried out:
a) Through the email address: comunicacao.rederestrita@bportugal.pt; b) By sending written communication to the following address:
Bank of Portugal - Prudential Supervision Department Rua Castilho 24 1250-069 Lisbon

Chapter IV
Transitional and Final Provisions

Article 9.
Transitional Provisions
Issuers benefiting from the exclusion provided for in Article 5(k)(i) or (ii) of the RJSPME and who have already sent a communication to the Bank of Portugal under Article 6(1) of the same instrument must send, within 90 days after the entry into force of this Notice, a new communication to the Bank of Portugal taking into account the provisions of this Notice.

Article 10.
Sanctioning Regime
Violation of the provisions of this Notice is punishable under the RJSPME.

Article 11.
Entry into Force
This Notice enters into force on the day following its publication.

28 February 2023. - The Governor, Mário Centeno.