Category: Payment Transactions

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Revised version of the Payment Service Directive

The European Parliament has adopted the revised version of the Payment Services Directive (PSD2) on October 8th, 2015. Before it can be published in the Official Journal of the European Community, the Directive still needs to be approved by the Council of Ministers of the European Union. After the approval, the Directive has to be implemented into national law within two years by the member states.

The revision of the Payment Services Directive will lead to amendments and adoptions of previous Directives and Regulations as well as the German Payment Services Supervision Act (ZAG).

One aim of the PSD2 is to make the electronical payments safer and more secure as well as more comfortable for European consumers. Hence “payment initiation services providers” and “account information service providers” will also be subjected to regulatory supervision by the BaFin. In addition they will have to undergo a licensing procedure at the BaFin.

Establishment of banks: an option for corporations? – Part 2

As explained in the preceding post regarding the recent PwC-Whitepaper “Establishment of banks: an option for corporations?”, the establishment of corporate-owned banks is not a strategic option for the german industrial sector even though the automotive industry is using them with great success.

These results contrast with the high demand for individualized financial services. Every other surveyed corporation wishes for increased efficiency and professionalization of financing activities within the firm. Beyond that working capital-management (36%), securing sales (34%), securing the supply-chain (27%) and diversification of business activities (27%) were central needs.

Commercial banks will not be troubled by emerging competition in terms of corporate-owned banks for now but they must not feel too secure as this is not due to the quality of their service but rather the enormous barriers of entry for corporations. The Whitepaper provides not only fields of action – especially in terms of consulting and product design – but also opportunities for the development of new business areas. Proposed actions might be structured financing for sectors or unions, supplier credit platforms, joint distribution activities or the offering of white-label-products. However, corporate decision-makers have to get themselves into banksided innovations and try to comprehend and exploit their potential together. Financial Covenants are agreed upon increasingly but are often seen as a burden for corporations. If those risk management benchmarks are individualized to fit specific sectors or corporations, they will have a positive impact for both parties. While various forms of cooperation between commercial banks and cooperations may appear promising, each party has to be aware that the realization of actual surplus value requires honesty, timely exchange of knowledge and the willingness to progress.

Establishment of banks: an option for corporations? – Part 1

It’s hard to imagine an automotive industry without corporate-owned financial institutions. Sector expertise concerning customer data, residual values and distribution channels allow for lending and leasing as well as the offering of appropriate insurance-models at attractive terms. In addition to these products the corporate-owned banks also offer classic banking products such as day-to-day money or credit cards. Thus they do not only optimize corporate financial activity but also enhance customer loyalty. Are corporate-owned banks therefore the next logical step towards an evolved industrial business model and can increased establishment be expected in the future?

The latest PwC-Whitepaper “Establishment of banks: an option for corporations?”, which can be obtained from PwC, deals with this exact question. According to the whitepaper the establishment of their own bank is not a strategic option for the vast majority of corporations. Only 6% of the 90 surveyed decision-makers representing corporations with a total of 177 billion € stated they would be considering it. There are multiple reasons behind the restraint. The most central being their size (31%), the remoteness to their core business (22%) and the effort that comes with regulatory compliance (18%).

Also read our next post regarding this issue. It deals with motivators explaining the urge to establish their own banks and tries to define fields of action and propose actions for commercial banks.

Swiss banks: New chances for market entry in Germany by means of a simplified regulatory framework

FINMA and BaFIN finally came to an agreement regarding all the required concrete measures for the so called “Simplified Exemption Procedure”. Thereby the regulatory framework for the market entry of Swiss banks in Germany will be facilitated.

 

In the past, Swiss banks going for a business activity in Germany without establishing a physical presence were required to meet several conditions which made conducting business operations more complicated. In particular, Swiss banks had to involve a locally active German / EEA bank for the customer identification of private clients.

Since 2013, there have been efforts by the Swiss Confederation and the Federal Republic of Germany to intensify cross-border cooperation in the financial sector. For that purpose, the so called “Memorandum to procedural aspects of cross-border activities in the financial sector” was established. One of the objectives of this Memorandum is enabling Swiss banks with cross-border customer relations to a simplified market entry in Germany, similar to the institutes of the EEA region.

However, this method put forward for the simplified market entry could not be applied yet, although the political will to establish the process was there. Nonetheless, the specific guidelines, which laid down the obligation for banks and the role of the FINMA and the BaFin in the practical implementation and a common understanding on the application of the money laundering law had yet to be completed.

Since July 4, 2015 all the conditions are now met and Swiss banks can take the so called “simplified exemption procedure” at BaFin before engaging in business in Germany in the future. In particular, no Swiss bank has to involve a locally active German / EEA bank anymore.

Revised Directive on Payment Services (PSD2)

There is new activity within the project to update and amend the provisions of the Directive on Payment Services. On 5 May 2015, the Parliament and Council agreed on a new proposal for a revised version of the Directive on Payment Services following trilogue negotiations between the Commission, the European Parliament and the Council of Ministers.

Already in July 2013, the Commission had drafted a proposal for a “Directive of the European Parliament and of the Council on payment services in the internal market and amending Directives 2002/65/EC, 2013/36/EU and 2009/110/EC and repealing Directive 2007/64/EC” (so-called PSD2).

According to this proposal some actual regulated exemptions of the current German Payment Services Act would be limited. The German Payment Services Act is based on the current available EU-Regulation (PSD) which will be repealed by the new one.

That means, companies which are currently allowed to use an exemption, might need a regulatory licence to provide their services in future. In case of a licence requirement these companies would be under the supervision of BaFin. This would lead to massive consequences for the company. Hence the respective company should take care of the possible consequences and changes at a very early stage.

Although the new directive needs to be implemented into German law first – since an EU directive is not directly applicable in Germany – in the past, the German legislator has been constantly making efforts to transform EU directives into German law faithfully.

Bitcoin and Bitcoin-like payments

Bitcoins (BTC) are increasingly used as a virtual currency for purchases of goods and for the remuneration of works or services. There are other, similar currencies such as Litecoins and PPCoins. According to the daily newspaper Die Welt, Bitcoins are now accepted by more than 75,000 companies.

Bitcoins are created using a mathematical process. Anyone who has a powerful enough computer can access that process by logging into a peer-to-peer system. The individual participants (clients) create the currency by solving CPU-intensive cryptographic tasks (so-called mining). For mathematical reasons, the possible number of Bitcoins in circulation is limited to approximately 21 million units (Extract from the Annual Report 2013 of the Federal Financial Supervisory Authority – BaFin – regarding trading in Bitcoins, dated 17 June 2014).

Since their introduction, Bitcoins have been subject to strong value fluctuations: Exchange rates ranged from the single-digit to the high triple-digit Euro area; the current exchange rate is about 215 Euro.

Although most Germans have probably not used Bitcoins yet, it can be assumed that the majority of the population has at least heard of them.

Given the widespread acceptance of Bitcoins by companies, it cannot be ruled out that they fulfil a monetary function and therefore could fall under the legal definition of “money”.

Regulatory classification

In a first step, a legally binding determination of the regulatory nature of Bitcoins was made. At the end of 2013, the BaFin released an article about Bitcoins and structurally similar virtual currencies. According to BaFin, Bitcoins are financial instruments and specifically fall under the subgroup “units of account”. Therefore, certain activities associated with Bitcoins can trigger a licence requirement pursuant to the German Banking Act (Kreditwesengesetz – KWG). Such a licence is required for e.g. purchasing and selling Bitcoins in the institution’s own name for the account of others (principal broking business) as well as on behalf of and for the account of others (contract broking), the purchase of Bitcoins at the institution’s own risk for placing in the market or the assumption of equivalent guarantees (underwriting business), provided that the activity is carried out commercially or within a scope which requires a commercially organized business. Also, investment advice, the operation of a multilateral trading system, placement business, financial portfolio management and the practically significant proprietary trading can be subject to BaFin authorization, when associated with Bitcoins. For more details, see the mentioned BaFin article.

Since from a legal point of view, Bitcoins are neither regarded as money nor as e-money, they shall in principle not fall within the scope of the German Payment Services Regulation Act (Zahlungsdiensteaufsichtsgesetz – ZAG).

It remains to be seen whether the e-money definition is going to be adapted with the result that it will also include Bitcoins and similar virtual currencies or if those currencies will per se be subject to regulation pursuant to the ZAG as a separate instrument. This could have far-reaching consequences for payments with Bitcoins and Bitcoin-like currencies. In light of the hazards and risks associated with Bitcoins (value fluctuations, data theft), the decision to set up a regulation may well be taken.

Banking Business in Germany, 4th edition – now available

We did it again: The 4th revised edition of “Banking Business in Germany” is now available.

banking-business-in-germany-auflage-4-cover

Also the new edition was developed in close cooperation between the Association of Foreign Banks in Germany (Verband der Auslandsbanken in Deutschland e.V.) and PwC.

The book’s subtitle tries to explain its ambition in one short sentence:

“A practical guide for foreign banks establishing a subsidiary or a branch in Germany”

True. But actually the book covers much more: It presents a current overview of the economic, regulatory, legal and tax framework that applies to credit institutions and financial service institutions in Germany.

Due to the current numerous developments throughout the financial market it was necessary to shorten the interval for the new edition from four to two years in order to keep up to date. Especially the chapter on prudential supervision in German got more or less completely re-written. The book now also comprises a new chapter regarding the ‘Minimum Requirements for Risk Management (MaRisk)’ published by the German regulator Bundesanstalt für Finanzdienstleistungsaufsicht (BaFin). Since regulation is not likely to stop here, you can expect the 5th edition by 2016.

With so many new things to tell, we were concerned that the book might lose its character as a concise guide and become simply to voluminous. We therefore managed to enhance the book’s focus throughout the chapters. In addition, you find now a subject index for ease of use.

The book is available as paperback or e-book.

I hope you enjoy reading the book and look forward to receive your comments.

Banking business in Germany – revised edition soon available

As time goes by …

Time is relative. But from a regulatory perspective the last four years since 2007 brought close to epochal changes. In nearly all areas of the financial industry the measures taken to scope with the financial crisis led to fundamental amendments and new regulations which already transformed the industry sustainably and will further do so in future.

What you can look forward to

Insofar it was high time to start a new edition of the English publication "Banking business in Germany", which was published last time 2007 as 2nd edition. The work offers its readers a detailed and comprehensive overview of Germany in general and its financial industry in particular, including the possible legal forms of an organisation in Germany, the relevant supervisory authorities and supervisory framework, and German tax law and labour relations. The book can be used as a helpful guide to the establishment of banks, branches or representative offices in Germany.

Time line

Also the new edition is developed in close cooperation between the Association of Foreign Banks in Germany (Verband der Auslandsbanken in Deutschland e.V.) and PwC. It is scheduled for January 2012.

The transitional provisions of ZAG are about to expire

On 30 April 2011 the transitional provisions of the Payment Services Act (ZAG) are going to end. According to that, companies who already had a license to provide money transfer business and credit card business before 25 December 2007, and companies who have provided their activities in the area of payment services (for example, the payment authentication business) without a license before 25 December 2007 can make use of the transitional provisions until 30 April 2011. However, starting on 1 May 2011, they require a licence according to the Payment Services Act to carry out the respective payment services. This licensing procedure includes the submission of extensive documentation to the Federal Financial Supervisory Authority (BaFin). Amongst others the submission of documents concerning the proof of the required initial capital, the business plan including a budget planning for the first three fiscal years as well as a description of the internal control mechanisms and the representation of the organizational structure is necessary. Since BaFin has to decide about the application only within three months after the complete documentation was submitted and since it is no longer allowed to conduct payment services according to the Payment Services Act without respective authorization after the expiry of the transitional provision, there might be a need for action.