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Funds Transfer Regulation – 'How To' Interpretative Guidance

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Funds Transfer Regulation – 'How To' Interpretative Guidance Funds Transfer Regulation – ‘How to’ interpretative guidance In 2015 the updated Funds Transfer Regulation (FTR) (also known as the Wire Transfer Regulation) was published. In 2017, the Council of the European Supervisory Authorities (ESAs) published their guidance for the FTR, with an implementation date of 16 July 2018. UK Finance engaged with its members on the issue of interpretation and compliance. It was clear that there were a number of areas where firms felt that there could be more clarity for the market. There were also areas where firms were taking different approaches with regard to how to implement the FTR requirements. This led to a lack of harmonisation that increased the volume of stopped and rejected payments, and led to inconsistent treatments. As a result, UK Finance set out to work with its members to produce an additional voluntary guidance document. This ‘How To’ interpretative guidance is intended to provide clarity and encourage market harmonisation on points material to, for example, straight-through processing. These guidelines have been prepared for general guidance only. The application of issues covered by them can vary widely depending on the specific facts and circumstances concerned, including the different activities, relationships and roles of the parties involved. This guidance is voluntary and is in no way intended to replace or add to the legal requirements laid out in the FTR. UK Finance does not accept any legal responsibility or liability for these guidelines. In addition, these guidelines are not intended to be used as a substitute for formal legal advice. The objective of this ‘How To’ analysis is to support focused efforts by the industry to meet their AML and compliance objectives by ensuring that: • systems and processes can identify the highest risk transactions ‘false-positives’ are reduced • wherever possible, straight-through-processing is not hindered. ** Further updates to the guidance: The guidance will be reviewed periodically to ensure that it is still adding value for firms in the market and is accurate. In particular, in June 2018 the Bank of England published its consultation on its new ISO20022 message for the UK, the Common UK Credit Message (CCM). Generally speaking, the How To guide reflects the structure of the CCM (for example the use of names and addresses). However, there are some proposed new elements that, if accepted during the consultation process, will need to be factored in to the How To guide. These include: Purpose Codes, LEIs, and Personal Identifiers. UK Finance will review the How To guide following the finalisation of the CCM to ensure that it takes into account all relevant changes. Conclusion of the Brexit negotiations may also have an impact which will be considered in due course. 1 Funds Transfer Regulation – How To guide Articles ESAs Guidelines How-to comments CHAPTER 1 - SUBJECT MATTER, SCOPE AND DEFINITIONS Article 1 - Subject Matter Art 1 This Regulation lays down rules on the information on payers and payees, accompanying transfers of funds, in any currency, for the purposes of preventing, detecting and investigating money laundering and terrorist financing, where at least one of the payment service providers involved in the transfer of funds is established in the Union. Article 2 - Scope Art 2(1) This Regulation shall apply to transfers of Discussion: It will be difficult to list all payment funds, in any currency, which are sent or message types and may become quickly out of date. It received by a payment service provider or is also important for firms to consider the applicability an intermediary payment service provider of MLRs/ESA guidance to branches and subsidiaries established in the Union. located outside of the EEA, where the parent company is located within the EEA. It is also noted that the Wolfsberg Group state in their 2017 Payment Transparency Standards that the introduction of MT202COV in 2009 was part of the broader industry efforts to comply with international 2 ML/TF standards on payment transparency. MT202COV is to be used for cover payments and allows for the replication of both originator and beneficiary information. MT202 is to be used where the transfer of funds is unrelated to an underlying customer credit transfer sent by the cover method. HOW TO: As regards payment message types in scope, any message which effects a transfer of funds shall be deemed to be in scope” Art 2(2) This Regulation shall not apply to the Discussion: Securities payments are deemed out of services listed in points (a) to (m) and (o) of scope for this regulation. We understand that some Article 3 of Directive 2007/64/EC. firms are treating these transactions as in scope which is causing issues for other firms. While supporting firms that wish to apply high levels of due diligence, there is a risk of causing unnecessary delay or impact if firms choose to treat securities transactions as if they are in scope. HOW TO: Firms are encouraged to review their procedures to ensure that they are clear on out of scope transactions. Art 2(3) (14) When applying the exemption in point (3) of Art 2(3)b states that the Regulation does apply for This Regulation shall not apply to transfers of Article 2 of Regulation (EU) 2015/847, PSPs and person to person transfers. Section 15 of the guidelines funds carried out using a payment card, an IPSPs should ensure that the transfer of funds is states that the exemption will only continue to apply if electronic money instrument or a mobile accompanied by the number of the card, instrument PSP can demonstrate that it is for goods or services. phone, or any other digital or IT prepaid or or digital device, for example the Primary Account 3 postpaid device with similar characteristics, Number (PAN), and that that number is provided in a where the following conditions are met: way that allows the transfer to be traced back to the HOW TO: Firms are encouraged to review their payer. procedures for identifying and documenting that (a)that card, instrument or device is used transfers by card, instrument or device are for goods or exclusively to pay for goods or services; 15. Where the card, instrument or device can be services, where the exemption applies, as opposed to and used to effect both person-to-person transfers of person-to-person transfers. (b) the number of that card, instrument or funds and payments for goods or services, PSPs and device accompanies all transfers flowing IPSPs will be able to apply this exemption only if they from the transaction. are able to determine that the transfer of funds is However, this Regulation shall apply when a not a person-to person transfer of funds, but payment card, an electronic money constitutes a payment for goods or services instead. instrument or a mobile phone, or any other digital or IT prepaid or postpaid device with similar characteristics, is used in order to effect a person-to-person transfer of funds. Art 2(4) This Regulation shall not apply to persons that have no activity other than to convert paper documents into electronic data and that do so pursuant to a contract with a payment service provider, or to persons that have no activity other than to provide payment service providers with messaging or other support systems for transmitting funds or with clearing and settlement systems. 4 This Regulation shall not apply to transfers of funds: (a)that involve the payer withdrawing cash from the payer's own payment account; (b) that transfer funds to a public authority as payment for taxes, fines or other levies within a Member State; (c) where both the payer and the payee are payment service providers acting on their own behalf; (d) that are carried out through cheque images exchanges, including truncated cheques. Art 2(5) (11) To apply these exemptions and derogations, Discussion: It is noted that some firms are not making A Member State may decide not to apply this PSPs and IPSPs should have in place systems and use of the exemptions in the Regulations, namely on Regulation to transfers of funds within its controls to ensure the conditions for these transfers below the EUR 1000 threshold and the intra- territory to a payee's payment account exemptions and derogations are met. PSPs and IPSPs EU transfers. As per the Guidelines, firms that do not permitting payment exclusively for the that are unable to establish that the conditions for have in place the systems to “ensure the conditions for provision of goods or services where all of these exemptions are met should comply with these exemptions and derogations are met” would not the following conditions are met: Regulation (EU) 2015/847 in respect of all transfers apply them. Nevertheless, there may be challenges (a)the payment service provider of the of funds. around fragmentation. payee is subject to Directive (EU) 2015/849; Variation in use of exemptions is partly determined by (b) the payment service provider of the type of establishment, business model and geographical payee is able to trace back, through the reach. Variation is also driven by well-known difficulties payee, by means of a unique transaction in identifying linked transactions, particularly in real 5 identifier, the transfer of funds from the time. It was agreed that, given these issues, full market person who has an agreement with the convergence is not seen as a realistic goal. payee for the provision of goods or An alternative approach was noted where market services; practice converges around transparency and dialogue, both for sending and receiving firms. It was also noted (c) the amount of the transfer of funds does that there may be benefits for the industry if more not exceed EUR 1 000.
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