knowledge | 26 November 2019 |
Ireland as a Location for Payment Institutions
Ireland is home to a substantial number of payment institutions, some home grown and others drawn to Ireland by its active and thriving FinTech Sector.
Aside from Ireland’s position as a FinTech hub, there are a number of advantages to being authorised in Ireland as a payment institution, including:
- a credible and experienced regulator, the Central Bank of Ireland (“CBI”);
- the ability to passport to other EEA Member States either on a branch or a cross-border services basis;
- a favourable tax regime, due to a combination of a 12.5% corporate tax rate and an exceptionally extensive and comprehensive set of double tax agreements; and
- access to a sophisticated financial services ecosystem with a deep pool of staff, managers, professional advisers, regulators and service providers including not only native English speakers but a sizeable international population.
Payment institutions are regulated under the European Union (Payment Services) Regulations 2018 (“Payment Services Regulations”), which transpose the revised Payment Services Directive 2015/2366 into Irish law, without any significant national gold plating.
The CBI is responsible for the authorisation, prudential regulation and supervision of payment institutions in Ireland.
Passporting and Third Country Firms
A payment institution authorised in Ireland can passport to other EEA Member States on either a services or cross-border establishment basis, subject to the fulfilment of certain notification requirements. A payment institution authorised in another EEA Member State can also passport into Ireland.
A payments business established outside the EEA, can obtain passporting rights either by establishing itself or a subsidiary in Ireland (or in another EEA Member State) or by acquiring an existing authorised payment institution.
An entity that wishes to become authorised as a payments institution under Irish law must fulfil a number of requirements. In particular, the entity will be expected to show that it has substance in Ireland, is adequately capitalised, has appropriate arrangements in place to run a payments institution and complies with fitness and probity requirements.
The CBI places considerable emphasis on ensuring that an applicant’s “heart and mind” will be located in Ireland. This essentially means that the CBI will need to be satisfied that the applicant will be properly run in Ireland and that the CBI will be able to supervise it effectively. Among other things, the CBI will expect to see present in Ireland:
- a senior management team with strength and depth overseen and directed by a strong board; and
- organisation structure and reporting lines which ensure there is appropriate separation and oversight of all activities.
There is no requirement for any specific individual to be resident in Ireland. However, ideally, the personnel who are to fulfil the applicant’s core functions should operate out of Ireland.
An Irish authorised payment institution can outsource/delegate activities to entities in other jurisdictions. However, overall responsibility for ensuring compliance with legislative requirements must stay in Ireland. In addition, a payment institution must notify the CBI when it intends to outsource operational functions of payment services. The Payment Services Regulations set out a number of requirements with which a payment institution must comply when outsourcing “important” operational functions, such as IT systems. The CBI will also expect a payment institution to comply with the EBA’s Guidelines on Outsourcing.
A payment institution must hold initial capital of between €20,000 and €125,000 depending on the types of payment services it provides. The actual amount of initial capital required for each individual firm will be notified to the firm as a part of the authorisation process.
An applicant will need to provide detailed information to the CBI regarding how it intends to function as a payment institution, including details of its: programme of operations; business plan; structural organisation; governance arrangements and internal control mechanisms; and business continuity arrangements procedure for dealing with security incidents.
Fitness and Probity
Once an application is submitted the applicant will also need to ensure that all relevant individuals proposed to hold a Pre-Approval Controlled Function (“PCF”) role (typically board members, senior management, key function holders) complete Fitness and Probity Individual Questionnaires.
The CBI’s fitness and probity requirements are based on Guideline 16 of the “EBA Guidelines on the information to be provided for the authorisation of payment institutions and e-money institutions and for the registration of account information service providers” which relates to the “identity and suitability assessment of directors and persons responsible for the management of the payment institution or electronic money institution”. The CBI has published Guidance on the Specific Requirements that apply to persons seeking approval for a Pre-Approval Controlled Function role in a Payment Institution or Electronic Money Institution (here).
All relevant individuals must submit an Individual Questionnaire electronically via the CBI’s Online Reporting System, however, access to the online Individual Questionnaire only becomes available after an application has been deemed to contain all the key information needed to progress to the assessment phase of the application process.
An application for authorisation as a payment institution must be submitted to the CBI. According to the CBI, it:
All applications for authorisation as a payment institution in Ireland must be submitted using the follow form:
- Authorisation as an Payment Institution (here)
The CBI has also published a Guidance Note on completing an authorisation application under the Payment Services Regulations (here). In addition an applicant must complete:
- the Anti-money Laundering, Counter-Terrorist Financing and Financial Sanctions Pre-Authorisation Risk Evaluation Questionnaire for Payment Institution and Electronic Money Institution Applicants (here); and
- Qualifying Holder Application Forms (here) as appropriate.
The CBI offers the facility of an optional pre-application meeting to potential applicants to answer any specific questions those applicants may have about any aspect of the application process.
There are five stages to the authorisation process for a payment institution, once the applicant has submitted a completed Application Form and relevant accompanying documentation. These also apply to applicants applying for registration as account information service providers.
The five stages are as follows:
Stage 1 - Acknowledgement: the CBI acknowledges receipt of the application within 3 working days.
Stage 2 - Key Information Check: the CBI checks that the applicant has submitted all the key information and documentation and confirms whether or not this is the case within 10 working days of receipt of the application. If the application is lacking any key information, the CBI will identify this information and the applicant can then decide to resubmit.
Stage 3 - Assessment Phase: the CBI assesses the application against the authorisation requirements and issues initial comments to the applicant on its application as well as subsequent comments based on its review of the applicant’s responses. The CBI has committed to a 90 working day assessment phase, however, this period will be paused should the CBI request further information.
Stage 4 – Notification of Assessment: the CBI notifies the applicant of the outcome of the assessment process. Where the assessment is favourable, the CBI will notify the applicant that it proposes to authorise. This letter will also specify any specific conditions the CBI proposes to impose on the authorisation itself once granted, along with the reasons for these conditions. Applicants will have the opportunity to make representations regarding these conditions before the CBI makes its decision.
If the CBI is not satisfied that it should authorise the applicant on the basis of the assessment, it will set out the areas to be addressed. The applicant has the right to respond to any issues raised by the CBI in its notification and the CBI will assess any responses made before notifying the applicant of its decision in Stage 5 of the process.
Stage 5 – Notification of Decision: where the CBI intends to authorise the applicant it aims to notify the applicant of its decision within 10 working days of any pre-conditions to authorisation being satisfied. In a case where the CBI is minded to refuse the application, the Central Bank will notify the applicant of the proposed grounds for refusal and the next steps in that process. These steps will include an opportunity for the applicant to make submissions in response to the proposed refusal.
How Can McCann FitzGerald Help?
McCann Fitzgerald is a premier law firm in Ireland and advises on the full range of legal, tax and compliance activities undertaken by payment institutions in Ireland. We have substantial experience in successfully guiding applicants through the regulatory authorisation process and in helping them to comply with their legal obligations, once established. If you are considering setting up a payment institution authorised under Irish legislation, please contact us for further information as to how we can help.
This briefing is for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.