|
| |
|
(5) | Schedule 4 (which contains further provision about the Payment Systems |
| |
| |
| |
32 | Meaning of “payment system” |
| |
(1) | In this Part “payment system” means a system which is operated by one or |
| 5 |
more persons in the course of business for the purpose of enabling persons to |
| |
make transfers of funds, and includes a system which is designed to facilitate |
| |
the transfer of funds using another payment system. |
| |
(2) | But “payment system” does not include— |
| |
(a) | any arrangements for the physical movement of cash; |
| 10 |
(b) | a system which does not make any provision for the transfer of funds |
| |
by payers, or to recipients, in the United Kingdom; |
| |
(c) | a securities settlement system operated by a person approved under |
| |
regulations under section 785 of the Companies Act 2006 (provision |
| |
enabling procedures for evidencing and transferring title); |
| 15 |
(d) | a system operated by a recognised clearing house; |
| |
(e) | any other system whose primary purpose is not that of enabling |
| |
persons to transfer funds. |
| |
| |
“recognised clearing house” has the meaning given by section 285(1) of |
| 20 |
| |
“securities settlement system” means a computer-based system, and |
| |
procedures, which enable title to units of a security to be evidenced and |
| |
transferred without a written instrument, and which facilitate |
| |
supplementary and incidental matters. |
| 25 |
(4) | The Treasury may by order amend this section so as to— |
| |
(a) | add descriptions of systems or arrangements that are not to be regarded |
| |
| |
(b) | vary or remove any such description. |
| |
33 | Participants in payment systems etc |
| 30 |
(1) | This section applies for the purposes of this Part. |
| |
(2) | The following persons are “participants” in a payment system— |
| |
(a) | the operator of the payment system (see subsection (3)); |
| |
(b) | any infrastructure provider (see subsection (4)); |
| |
(c) | any payment service provider (see subsection (5)). |
| 35 |
| (But see also subsection (8).) |
| |
(3) | “Operator”, in relation to a payment system, means any person with |
| |
responsibility under the system for managing or operating it; and any |
| |
reference to the operation of a payment system includes a reference to its |
| |
| 40 |
(4) | “Infrastructure provider”, in relation to a payment system, means any person |
| |
who provides or controls any part of the infrastructure used for the purposes |
| |
of operating the payment system. |
| |
|
| |
|
| |
|
(5) | “Payment service provider”, in relation to a payment system, means any |
| |
person who provides services to persons who are not participants in the system |
| |
for the purposes of enabling the transfer of funds using the payment system. |
| |
(6) | A payment service provider has “direct access” to a payment system if the |
| |
payment service provider is able to provide services for the purposes of |
| 5 |
enabling the transfer of funds using the payment system as a result of |
| |
arrangements made between the payment service provider and the operator of |
| |
| |
(7) | Any reference to participation in a payment system is to be read in accordance |
| |
with this section, and in particular— |
| 10 |
(a) | in the case of an operator of a payment system, includes a reference to |
| |
developing the system, and |
| |
(b) | in the case of a payment service provider with direct access to a |
| |
payment system, includes a reference to entering into an agreement |
| |
with a person to enable the person to become a payment service |
| 15 |
provider in relation to the system. |
| |
(8) | The Bank of England is not to be regarded as a participant of any kind in any |
| |
| |
Designation as a regulated payment system |
| |
| 20 |
(1) | The Treasury may by order (a “designation order”) designate a payment |
| |
system as a regulated payment system for the purposes of this Part. |
| |
(2) | A designation order must specify in as much detail as is reasonably practicable |
| |
the arrangements that constitute the payment system. |
| |
| 25 |
(1) | The Treasury may make a designation order in respect of a payment system |
| |
only if they are satisfied that any deficiencies in the design of the system, or any |
| |
disruption of its operation, would be likely to have serious consequences for |
| |
those who use, or are likely to use, the services provided by the system. |
| |
(2) | In considering whether to make a designation order in respect of a payment |
| 30 |
system, the Treasury must have regard to— |
| |
(a) | the number and value of the transactions that the system presently |
| |
processes or is likely to process in the future, |
| |
(b) | the nature of the transactions that the system presently processes or is |
| |
likely to process in the future, |
| 35 |
(c) | whether those transactions or their equivalent could be handled by |
| |
other payment systems, and |
| |
(d) | the relationship between the system and other payment systems. |
| |
| |
(1) | Before making a designation order in respect of a payment system the Treasury |
| 40 |
| |
(a) | consult the Payment Systems Regulator and, if the system is a |
| |
recognised inter-bank payment system, the Bank of England, |
| |
|
| |
|
| |
|
(b) | notify the operator of the system, and |
| |
(c) | consider any representations made. |
| |
(2) | In considering whether to make a designation order in respect of a payment |
| |
system, the Treasury may rely on information provided by— |
| |
| 5 |
| |
| |
(d) | the Payment Systems Regulator. |
| |
37 | Amendment of designation order |
| |
(1) | The Treasury may amend a designation order. |
| 10 |
(2) | Before amending a designation order made in respect of a payment system, the |
| |
| |
(a) | consult the Payment Systems Regulator and, if the payment system is a |
| |
recognised inter-bank payment system, the Bank of England, |
| |
(b) | notify the operator of the payment system, and |
| 15 |
(c) | consider any representations made. |
| |
(3) | The Treasury must consider any request by the operator of a regulated |
| |
payment system for the amendment of its designation order. |
| |
38 | Revocation of designation orders |
| |
(1) | The Treasury may revoke a designation order. |
| 20 |
(2) | The Treasury must revoke a designation order if they are not satisfied that the |
| |
criteria in section 35 are met in respect of the payment system to which the |
| |
| |
(3) | Before revoking a designation order made in respect of a payment system, the |
| |
| 25 |
(a) | consult the Payment Systems Regulator and, if the payment system is a |
| |
recognised inter-bank payment system, the Bank of England, |
| |
(b) | notify the operator of the payment system, and |
| |
(c) | consider any representations made. |
| |
(4) | The Treasury must consider any request by the operator of a regulated |
| 30 |
payment system for the revocation of its designation order. |
| |
General duties of Regulator |
| |
39 | Regulator’s general duties in relation to payment systems |
| |
(1) | In discharging its general functions relating to payment systems the Payment |
| |
Systems Regulator must, so far as is reasonably possible, act in a way which |
| 35 |
advances one or more of its payment systems objectives. |
| |
(2) | The payment systems objectives of the Payment Systems Regulator are— |
| |
(a) | the competition objective (see section 40), |
| |
(b) | the innovation objective (see section 41), and |
| |
(c) | the service-user objective (see section 42). |
| 40 |
|
| |
|
| |
|
(3) | In discharging its general functions relating to payment systems the Payment |
| |
Systems Regulator must have regard to— |
| |
(a) | the importance of maintaining the stability of, and confidence in, the |
| |
| |
(b) | the importance of payment systems in relation to the performance of |
| 5 |
functions by the Bank of England in its capacity as a monetary |
| |
| |
(c) | the regulatory principles in section 43. |
| |
(4) | The general functions of the Payment Systems Regulator relating to payment |
| |
| 10 |
(a) | its function of giving general directions under section 44 (considered as |
| |
| |
(b) | its functions in relation to the giving of general guidance under section |
| |
81 (considered as a whole), and |
| |
(c) | its function of determining the general policy and principles by |
| 15 |
reference to which it performs particular functions. |
| |
40 | The competition objective |
| |
(1) | The competition objective is to promote effective competition in— |
| |
(a) | the market for payment systems, and |
| |
(b) | the markets for services provided by payment systems, |
| 20 |
| in the interests of those who use, or are likely to use, services provided by |
| |
| |
(2) | The reference in subsection (1) to promoting effective competition includes, in |
| |
particular, promoting effective competition— |
| |
(a) | between different operators of payment systems, |
| 25 |
(b) | between different payment service providers, and |
| |
(c) | between different infrastructure providers. |
| |
(3) | The matters to which the Payment Systems Regulator may have regard in |
| |
considering the effectiveness of competition in a market mentioned in |
| |
| 30 |
(a) | the needs of different persons who use, or may use, services provided |
| |
| |
(b) | the ease with which persons who may wish to use those services can do |
| |
| |
(c) | the ease with which persons who obtain those services can change the |
| 35 |
person from whom they obtain them; |
| |
(d) | the needs of different payment service providers or persons who wish |
| |
to become payment service providers; |
| |
(e) | the ease with which payment service providers, or persons who wish |
| |
to become payment service providers, can provide services using |
| 40 |
| |
(f) | the ease with which payment service providers can change the |
| |
payment system they use to provide their services; |
| |
(g) | the needs of different infrastructure providers or persons who wish to |
| |
become infrastructure providers; |
| 45 |
(h) | the ease with which infrastructure providers, or persons who wish to |
| |
become infrastructure providers, can provide infrastructure for the |
| |
purposes of operating payment systems; |
| |
|
| |
|
| |
|
(i) | the needs of different operators of payment systems; |
| |
(j) | the ease with which operators of payment systems can change the |
| |
infrastructure used to operate the payment systems; |
| |
(k) | the level and structure of fees, charges or other costs associated with |
| |
participation in payment systems; |
| 5 |
(l) | the ease with which new entrants can enter the market; |
| |
(m) | how far competition is contributing to the development of efficient and |
| |
effective infrastructure for the purposes of operating payment systems; |
| |
(n) | how far competition is encouraging innovation. |
| |
41 | The innovation objective |
| 10 |
(1) | The innovation objective is to promote the development of, and innovation in, |
| |
payment systems in the interests of those who use, or are likely to use, services |
| |
provided by payment systems, with a view to improving the quality, efficiency |
| |
and economy of payment systems. |
| |
(2) | The reference in subsection (1) to promoting the development of, and |
| 15 |
innovation in, payment systems includes, in particular, a reference to |
| |
promoting the development of, and innovation in, infrastructure to be used for |
| |
the purposes of operating payment systems. |
| |
42 | The service-user objective |
| |
The service-user objective is to ensure that payment systems are operated and |
| 20 |
developed in a way that takes account of, and promotes, the interests of those |
| |
who use, or are likely to use, services provided by payment systems. |
| |
| |
The regulatory principles referred to in section 39(3)(c) are as follows— |
| |
(a) | the need to use the resources of the Payment Systems Regulator in the |
| 25 |
most efficient and economic way; |
| |
(b) | the principle that a burden or restriction which is imposed on a person, |
| |
or on the carrying on of an activity, should be proportionate to the |
| |
benefits, considered in general terms, which are expected to result from |
| |
the imposition of that burden or restriction; |
| 30 |
(c) | the desirability of sustainable growth in the economy of the United |
| |
Kingdom in the medium or long term; |
| |
(d) | the general principle that those who use services provided by payment |
| |
systems should take responsibility for their decisions; |
| |
(e) | the responsibilities of the senior management of persons subject to |
| 35 |
requirements imposed by or under this Part, including those affecting |
| |
persons who use services provided by payment systems, in relation to |
| |
compliance with those requirements; |
| |
(f) | the desirability where appropriate of the Payment Systems Regulator |
| |
exercising its functions in a way that recognises differences in the |
| 40 |
nature of, and objectives of, businesses carried on by different persons |
| |
subject to requirements imposed by or under this Part; |
| |
(g) | the desirability in appropriate cases of the Payment Systems Regulator |
| |
publishing information relating to persons on whom requirements are |
| |
imposed by or under this Part, or requiring such persons to publish |
| 45 |
|
| |
|
| |
|
information, as a means of contributing to the advancement by the |
| |
Payment Systems Regulator of its payment systems objectives; |
| |
(h) | the principle that the Payment Systems Regulator should exercise its |
| |
functions as transparently as possible. |
| |
Regulatory and competition functions |
| 5 |
| |
(1) | The Payment Systems Regulator may give directions in writing to participants |
| |
in regulated payment systems. |
| |
(2) | A direction given to a participant in a regulated payment system may— |
| |
(a) | require or prohibit the taking of specified action in relation to the |
| 10 |
| |
(b) | set standards to be met in relation to the system. |
| |
(3) | A direction under this section may apply— |
| |
| |
(b) | in relation to all operators, all infrastructure providers or all payment |
| 15 |
| |
(c) | in relation to specified persons or persons of a specified description. |
| |
(4) | The Payment Systems Regulator must publish any direction given under this |
| |
section that applies as mentioned in subsection (3)(a) or (b). |
| |
(5) | A direction under this section that applies as mentioned in subsection (3)(a) is |
| 20 |
referred to in this Part as a “general direction”. |
| |
| |
(1) | The Payment Systems Regulator may require the operator of a regulated |
| |
| |
(a) | to establish rules for the operation of the system; |
| 25 |
(b) | to change the rules in a specified way or so as to achieve a specified |
| |
| |
(c) | to notify the Payment Systems Regulator of any proposed change to the |
| |
| |
(d) | not to change the rules without the approval of the Payment Systems |
| 30 |
| |
(2) | A requirement under subsection (1)(c) or (d) may be general or specific. |
| |
46 | Power to require granting of access to payment systems |
| |
(1) | This section applies where a person (“the applicant”) applies for an order |
| |
| 35 |
(2) | The Payment Systems Regulator may by order require the operator of a |
| |
regulated payment system to enable the applicant to become a payment service |
| |
provider in relation to the system. |
| |
(3) | The Payment Systems Regulator may by order require any payment service |
| |
provider with direct access to a regulated payment system to enter into an |
| 40 |
|
| |
|
| |
|
agreement with the applicant to enable the applicant to become a payment |
| |
service provider in relation to the system. |
| |
(4) | An order under this section may provide for the applicant to become a |
| |
payment service provider in relation to a payment system— |
| |
(a) | for a period specified in the order; |
| 5 |
(b) | on terms and conditions specified in the order. |
| |
47 | Variation of agreements relating to payment systems |
| |
(1) | This section applies to the following agreements— |
| |
(a) | any agreement made between the operator of a regulated payment |
| |
system and a payment service provider; |
| 10 |
(b) | any agreement made between a payment service provider with direct |
| |
access to a regulated payment system and another person for the |
| |
purpose of enabling that other person to become a payment service |
| |
provider in relation to the system; |
| |
(c) | any agreement concerning fees or charges payable in connection |
| 15 |
| |
(i) | participation in a regulated payment system, or |
| |
(ii) | the use of services provided by a regulated payment system. |
| |
(2) | The Payment Systems Regulator may, on the application of a party to an |
| |
agreement to which this section applies, vary the agreement by— |
| 20 |
(a) | varying any of the fees or charges payable under the agreement, or |
| |
(b) | in the case of an agreement within subsection (1)(a) or (b), varying any |
| |
other terms and conditions relating to the payment service provider’s |
| |
participation in the payment system. |
| |
(3) | In the case of an agreement within subsection (1)(b), the reference in subsection |
| 25 |
(2)(b) to the payment service provider is to the payment service provider which |
| |
does not have direct access to the payment system. |
| |
(4) | The power under this section to vary any fee or charge includes power to |
| |
specify a maximum fee or charge. |
| |
(5) | If the Payment Systems Regulator varies an agreement under this section, the |
| 30 |
agreement has effect subject to the variation. |
| |
48 | Power to require disposal of interest in payment system |
| |
(1) | The Payment Systems Regulator may require a person who has an interest in |
| |
the operator of a regulated payment system to dispose of all or part of that |
| |
| 35 |
(2) | The power conferred by subsection (1) may be exercised only if the Payment |
| |
Systems Regulator is satisfied that, if the power is not exercised, there is likely |
| |
to be a restriction or distortion of competition in— |
| |
(a) | the market for payment systems, or |
| |
(b) | a market for services provided by payment systems. |
| 40 |
(3) | The Payment Systems Regulator may not exercise the power conferred by |
| |
subsection (1) without the consent of the Treasury. |
| |
|
| |
|