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Consumers and service providers should take note of some of the enhanced risks upon an e-money institution’s insolvency.

By Hongbei Li

Technology is rapidly changing the way customers and businesses interact with financial systems. Fintech companies are a driving force behind the disruption of traditional banking and payment services, with regulatory innovation close behind.

In the 12 months to June 2021, electronic money institutions (EMIs) in the UK processed more than £500 billion of transactions, according to Financial Conduct Authority…

The proposed regulation will provide greater consumer and investor protection and lessen the risks of participating in digital finance.

By Stuart Davis

The EU Commission has published a proposal for a wide-ranging EU regulation covering cryptoassets and e-money tokens, both of which are currently largely unaddressed in EU financial services legislation.

The draft Markets in Cryptoassets Regulation (MiCA) has been designed to:

  • Increase legal certainty in the area of cryptoassets
  • Support innovation and promote the development of cryptoassets and the wider use of distributed ledger technology (DLT)
  • Instil appropriate levels of consumer and investor protection and market integrity in an area that presents many of the same risks as traditional financial instruments
  • Ensure financial stability

Andrew Bailey outlined what payments market participants can expect from regulators seeking to address financial stability risk in the world of payments, including as part of the rise and adoption of global stablecoins.

By Brett Carr and Stuart Davis

On 3 September 2020, the Governor of the Bank of England (BoE) Andrew Bailey delivered a speech “Reinventing the Wheel (with more automation)”, in which he outlined regulatory changes that payments market participants can expect, including as part of the global regulatory response to stablecoins.

The additional temporary guidance aims to strengthen the arrangements for safeguarding customers’ funds and firms’ prudential risk management in light of the impact of COVID-19.

By Stuart Davis, Brett Carr, and Anna Lewis-Martinez

On 9 July 2020, the FCA published its finalised guidance on safeguarding customers’ funds during the COVID-19 crisis. The finalised guidance applies to payment and e-money firms.

The FCA’s guidance for firms on safeguarding and managing prudential risk is already available in the FCA’s payment services approach document (Approach Document). However, in light of the exceptional circumstances of COVID-19 on firms’ business models, the FCA has provided additional temporary guidance to strengthen firms’ prudential risk management and arrangements for safeguarding customers’ funds in this period of economic stress.

Upgraded legislation creates an enhanced regulatory framework for the new age of payments, including e-money and digital payment tokens. 

By Farhana Sharmeen and Simon Hawkins

After much anticipation, and following consultations with the industry at large, the game-changing Payment Services Act 2019 (PSA) has finally become operational.

The PSA, which came into effect on 28 January, is the omnibus legislation dealing with payment services and systems, which adopts an activity-based licensing framework and risk-based regulatory structure. The new legislation has been designed in recognition of the different kinds of payment services that are currently available, and with a view to anticipating the types of payment services that are likely to develop in the future.

FCA finalises guidance on cryptoassets and consults on product intervention measures.

By Stuart Davis and Charlotte Collins

FCA guidance on the regulation of cryptoassets

As previously reported in this blog, the FCA consulted on guidance on cryptoassets in January 2019. This guidance is designed to help market participants understand how to classify different types of cryptoassets, within the existing regulatory framework. Although the guidance is not able to give definitive answers, and every cryptoasset must be assessed against the guidance based on its own particular features, this publication helps to create a much greater degree of clarity as to how the assessment ought to be performed, and which features are determinative for these purposes.

The FCA published its final guidance in PS19/22 on 31 July 2019. The guidance is substantially the same as that consulted on, save that the FCA has sought to reframe its taxonomy of cryptoassets to help market participants better understand which types of token are regulated. The FCA has included a new category of regulated tokens that constitute e-money, “e-money tokens”, rather than including e-money tokens within the utility tokens category. This provides a clearer distinction between regulated security tokens and e-money tokens on the one hand, and unregulated tokens (utility tokens and exchange tokens that do not fall within the above categories) on the other. However, the final guidance as to whether a token will constitute an e-money token has not changed from the draft version. The FCA has also provided further guidance on so-called “stablecoins”, and on when particular types of token might constitute e-money or securities. The FCA confirms that this determination will depend on the design and rights associated with a specific stablecoin and, therefore, requires a case-by-case assessment.

By Andrew Moyle, Stuart Davis, Fiona Maclean, Christian McDermott and Charlotte Collins

The Bank of England (BoE) announced on 19 July 2017 that it is extending direct access to its real-time gross settlement (RTGS) service to non-bank payment service providers (i.e., e-money institutions and payment service providers that do not have regulatory permissions to carry out the “core” banking activity of taking deposits), subject to appropriate safeguards.

For the first time, non-banks will be able to apply for a settlement account with the BoE, providing direct access to the UK’s sterling payment systems that settle in sterling central bank money, including Faster Payments, Bacs, CHAPS, LINK, Visa, and, once live, the new digital cheque imaging system.