Payments Law Update: December 2015
Published on 2nd Dec 2015
Welcome to the latest edition of Osborne Clarke’s Payments Law Update.
We hope that you find it interesting. If you would like to discuss any of the content, or have a subject that you would like us to cover in the next edition, please let us know. Our contact details are set out below.
Best regards,
Paul Anning and Kate Johnson
Payment Systems Regulator gathering speed: further strength given to its competition powers: implications for the sector
The Payment Systems Regulator is under an explicit statutory duty to promote effective competition in the markets for payment systems and the services they provide. Our Competition team considers how the PSR will fulfil this statutory objective in light of its recently published guidance.
Safe Harbor data transfer mechanism declared invalid by CJEU: next steps for payment service providers and firms
We consider stakeholder responses to the recent decision by the Court of Justice of the European Union, and set out practical steps which companies can consider taking to address data transfer compliance, in the wake of the judgment which found the data transfer “Safe Harbor” invalid.
FCA proposes guidance for regulated firms on using the “cloud” and other third-party IT services
The Financial Conduct Authority has recently published guidance setting out its requirements for regulated firms when they use cloud and other third party IT services. The guidance is in a consultation phase, with responses required by 12 February 2016. This will be relevant to any firm which outsources cloud or IT services.
HM Treasury Publications: anti-money laundering and the Payments Accounts Directive
HM Treasury has recently released two publications relevant to the payments industry: on 12 November 2015 an advisory note on money laundering and terrorist financing controls; and, on 16 November 2015, a summary of responses to its consultation on the Payments Accounts Directive. We discuss both publications and other implications in our note.
CJEU rules that bitcoin is a currency for VAT
On 22 October 2015 the CJEU ruled that a transaction to exchange “traditional” currency for bitcoin is exempt from VAT, and that this is on the basis that bitcoin is to be treated for these purposes as a currency. This ruling will be binding on EU Member States. The position in the UK will be unchanged, as HMRC has adopted this approach since a notice issued in March 2014; however, other Member States will need to adopt this position. This removes a potential hurdle to bitcoin trading within the EU.
Sharing economy platform providers: how they may be caught by EU payments regulation
Our Payments teams in the UK and Germany consider how sharing economy platform providers can fall within the scope of EU payments regulation.
PSD2: almost there!
The Council of the EU last month adopted PSD2, with the final step – publication in the Official Journal – now expected in Mid-December. We consider the rationale behind PSD2 and its key provision in our note.
Migration under the SEPA Migration Regulation: next steps
The next key migration date under the SEPA Migration Regulation (Regulation 260/2012) is approaching: 1 February 2016. We set out what payment service providers must do before the deadline.
What is ‘RegTech’ and how is the FCA encouraging new regulatory technologies?
In the 2015 Summer Budget, the UK government announced that “the FCA, working with the PRA, will … identify ways to support the adoption of new technologies to facilitate the delivery of regulatory requirements – so called ‘RegTech'”.
The Financial Conduct Authority has now published a Call for Input to seek views on how, as a regulator, it should support the development and adoption of RegTech. We look at RegTech in more detail and discuss questions posed by the FCA in our note.
