Regulation BCL 2011/N°9 of 4 July 2011 on the collection of data on payment instruments and operations

BANQUE CENTRALE DU LUXEMBOURG
Regulation of the Banque Centrale du Luxembourg 2011/N°9 of 4 July 2011 on the collection of data on payment instruments and operations

The Management of the Banque Centrale du Luxembourg,

Having regard to the Treaty on the Functioning of the European Union, and in particular Articles 127(2) and (5) thereof;

Having regard to Articles 3, 5.1, 5.2 and 22 of the Statutes of the European System of Central Banks (ESCB) and of the European Central Bank;

Having regard to Article 2 of Council Regulation No 2533/98 of 23 November 1998 as amended by Council Regulation No 951/2009 of 9 October 2009 concerning the collection of statistical information by the European Central Bank;

Having regard to Article 108bis of the Constitution;

Having regard to the Law of 23 December 1998 on the monetary status and the Banque Centrale du Luxembourg (hereinafter, the BCL) as amended (hereinafter, the Law), in particular Articles 2(5), 27-3, 32 and 34(1);

Considering that, in accordance with Article 2(5) of the Law: “In view of its mission regarding the promotion of the smooth operation of payment systems, the Central Bank ensures the efficiency and security of payment systems and securities settlement systems, as well as the security of payment instruments. The modalities of coordination and cooperation for the exercise of this mission are the subject of agreements between the Central Bank and the Financial Sector Supervisory Commission, in respect of the legal competencies of the parties”;

Considering Article 27-3 of the Law: “For the purpose of carrying out the mission defined in Article 2 paragraph 5, the Central Bank may request information from payment systems and securities settlement systems regarding the operation of these systems which it needs to assess their efficiency and security, and it may request information from issuers of payment instruments regarding payment instruments which it needs to assess their security. The Central Bank is authorized to carry out on-site visits to collect the information referred to in paragraph 1. To this end, it coordinates with the Financial Sector Supervisory Commission.”;

Considering Article 32 of the Law:
“(1) To ensure its missions, the Central Bank is authorized to collect the necessary statistical information, either from the competent national administrations or directly from economic agents. It is likewise authorized to verify this information on-site with these administrations and economic agents, in compliance with the provisions of Community law and with the competencies attributed to the ESCB and the ECB. (2) The individual data thus collected fall under the professional secrecy of the organs and agents of the Central Bank, defined by Article 33 of this Law. (3) However, the Central Bank is authorized to publish the statistics it establishes, provided that the publication does not contain and does not allow conclusions to be drawn about individual data and that it respects the provisions relating to professional secrecy applicable to the ESCB.”;

Considering Article 34(1) of the Law: “Within the limits of its competencies and missions, the Central Bank has the power to issue regulations. The regulations of the Central Bank are published in the Mémorial.”

Having regard to the Law of 10 November 2009 on payment services, the electronic money institution activity and the finality of settlement in payment systems and securities settlement systems, as amended by the Law of 20 May 2011;

Having regard to Regulation BCL 2010/N°6 of 8 September 2010 on the supervision of payment systems, securities settlement systems and payment instruments in Luxembourg;

Considering the following:

• In order to contribute to ensuring one of the ESCB’s missions, which is to promote the smooth operation of payment systems (Article 3 of the ESCB Statutes), the BCL needs data on payments and payment systems.

• The current system for collecting data on payments and payment systems is carried out, at variable frequencies, partly from market infrastructures and technical agents and partly from credit institutions.

• The implementation of SEPA now allows institutions to carry out their payments through pan-European infrastructures which are therefore not necessarily located on national territory. This movement of integration at the level of payment infrastructures thus makes it more difficult to collect data from infrastructures on the payment activity of the Luxembourg community.

• These changes and the increased difficulties they induce regarding the collection of quantitative data require orienting towards a new monthly collection system focused directly on institutions active in payment services.

• The new collection system allows, in addition to covering the BCL’s needs, to satisfy the requirements of the European Central Bank (ECB) regarding statistics on payments and payment systems.

• The new collection system aims to:
  o monitor the evolution of the use of payment systems and payment instruments o collect and publish statistical data at the national and European level in an aggregated manner for the Luxembourg financial center

Decrees:

Article 1: Definitions
“Payment”: an action initiated by the payer or the payee, consisting of depositing, transferring or withdrawing funds, independently of any underlying obligation between the payer and the payee. “Payment instrument”: a personalized device and/or a set of procedures enabling a natural or legal person to deposit, transfer or withdraw funds. “System”: a system enabling the transfer of funds and/or securities and which is governed by standardized formal procedures and common rules for the processing, clearing or settlement of payment operations and/or securities operations. “Technical agent”: a service provider with whom a system operator, a payment instrument issuer or a governance authority has placed or centralized a significant part of its operational and/or technical infrastructure. “Reporting entity”: the agent reporting the data of this collection. “Payment institution”: a legal person which, in accordance with Article 10 of Directive 2007/64/EC, has obtained authorization allowing it to provide and execute payment services throughout the European Union. In Luxembourg, any legal person that has obtained authorization to provide and execute payment services under Article 7 of this Law is covered. In Luxembourg, persons who have obtained authorization to provide and execute payment services under Article 22 of the Law of 10 November 2009 are assimilated.

“Electronic money institution”: a legal person that has obtained, under Title II of Directive 2009/110/EC, from the competent authorities of a Member State, authorization allowing it to issue electronic money. In Luxembourg, any legal person that has obtained authorization to issue electronic money under Section 1 of Chapter 2 of Title II or Article 24-16 of the Law of 20 May 2011 is covered. “Market infrastructure”: a system used for the exchange, clearing and settlement of payments, securities or derivatives.

Article 2: Scope
This collection applies to entities active in the field of payments.
Entities considered active in the field of payments are:

1. Credit institutions
2. Payment institutions
3. Electronic money institutions
4. Technical agents and market infrastructures acting in the field of payments

This regulation applies to entities legally established in Luxembourg, including branches.

Article 3: Subject of the collection
The instruments subject to collection are:
o Customer transfers and interbank transfers o Direct debits o Payment cards o Electronic money scheme o Checks o Payment orders

Data is also collected on payment terminals and (de)loading terminals.

Article 4: Execution modalities
Reporting entities transmit data using one or more XML files, based on the model attached to this regulation.
Reporting entities transmit their statistical reports via the currently valid electronic transmission channels (SOFIE or FINESTI).
Monthly statistical reports must be transmitted to the BCL within 10 working days following the period to which they relate.

Article 5: Obligations of reporting entities
Reporting entities verify the quality of the data transmitted to the BCL in accordance with verification rules 1 detailed in the technical documentation 2, before transmission. Reporting entities perform rigorous controls upon data production in order to meet both quality requirements and the deadlines set by the BCL.

Article 6: Data retention period
Reporting entities retain statistical reports and related documents for twenty-four months.

Article 7: Entry into force
This regulation enters into force on the day of its publication.
Data collection is mandatory from January 2012.
The first transmission of statistical data relating to the January 2012 period must be transmitted by 14 February 2012.

Article 8. Use of data
The collected data is used for the exercise of the BCL’s missions.

Article 9: Sanctions
Without prejudice to other sanctions, the BCL may make public any contravention of the provisions of this regulation and inform the competent authorities.

Example: compliance with the XML file nomenclature.
XML files and annex to this regulation.

Article 10: Miscellaneous provisions
This regulation is supplemented by an annex: “Guidance note on the transmission of payment data”.

Article 11: Publication
This regulation is published on the website of the Central Bank (www.bcl.lu) and in the Mémorial.
The regulation’s annex titled “Guidance note on the transmission of payment data”, as updated, is published on the website of the Central Bank (www.bcl.lu).

BANQUE CENTRALE DU LUXEMBOURG
The Management