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Regulations implementing the Payment Services Act

We continue our series of articles on the act transposing the Payment Services Directive into Polish law with a few comments on the implementing legislation.

The Payment Services Act was published on 23 September 2011 and goes into effect 30 days later, on 24 October 2011. Entities that begin performing payment services (as defined in the act) after the effective date of the act will have to meet the requirements set forth in the act from the very start, in particular the reporting requirements and rules for performing payment services set forth in chapters 2 and 3 of the act.
The situation is much more complicated with respect to entities already performing services that will be classified as payment services when the Payment Services Act goes into effect. For them, entry into force of the act will present three challenges. First, they need to adapt to the new requirements for documentation used in providing the services (primarily customer contracts). Second, they need to adapt their operational procedures (including the algorithms of their IT systems) to the new rules for performing payment services. Third, they must follow procedures connected with coming under the supervision of the Polish Financial Supervision Authority, including filing an application for a permit.
The main implementation period will be the 12 months following entry into force of the Payment Services Act. During this time, entities that are regarded as providers of payment services under the system used in the act (such as banks, electronic money institutions and entities carrying out payment transactions) must adapt their operations to the requirements set forth in chapters 2 and 3 of the act. Meanwhile, providers of payment services that were not previously subject to oversight by the Financial Supervision Authority will have 6 months from the effective date of the act to file an application for a permit or an entry in the register. As long as they meet the filing deadline, such entities may continue to perform their previous activity while the proceeding for issuance of a permit or entry in the register is pending, even after the filing deadline.
The Parliament did not manage to avoid some ambiguities in the implementing regulations. There is expected to be major controversy surrounding Payment Services Act Art. 170(1), under which the payor and its supplier may agree that until 1 January 2012 the deadline for carrying out orders may be longer than that specified in Art. 54 of the act (i.e. the general rule that a payment transaction is to be performed by the end of the next business day after receipt of the order). This raises the issue of the interrelationship between Art. 170(1) and Art. 168, which specifies the general grace period of 12 months.
The rules concerning the time for performance of payment transactions are found in Chapter 3 of the Payment Services Act, and thus in theory are subject to the 12-month grace period. On the other hand, it may be argued that Art. 170(1) represents a specific derogation from the general rule of Art. 168, which would imply the necessity to apply the deadline for realising transactions under Art. 54 practically from the very effective date of the act. In reality, payment service providers will have just a few weeks to work out a practical resolution of this ambiguity.
Krzysztof Wojdyło, Banking & Finance practice, Wardyński & Partners