Soon, the Act amending certain laws in connection with ensuring the development of the financial market and the protection of investors in this market, commonly referred to as “Warzywniak” will come into effect. On August 29, 2023, the Act was published in the Journal of Laws and will become effective on September 29, 2023. The Act will change the rules for applying for entry into the register of Small Payment Institutions (SPI) and, in some circumstances, for obtaining permission for MIPs to operate as National Payment Institutions (NPI). The new regulations will also increase the responsibility of individuals in management positions at payment service providers. These changes in the context of SPI will apply to both entities currently applying for registration and those already holding this status.

Small payment institution as a payment service provider

As a reminder, a Small Payment Institution (SPI) is authorized to provide the following payment services:

• Maintaining payment accounts (for example, holding funds for clients).
• Executing payment transactions (payment orders, payment instructions, transactions using payment cards or similar payment instruments).
• Executing payment transactions against funds made available from a payment credit.
• Issuing payment instruments (e.g., payment/credit cards).
• Acquiring, i.e., enabling the acceptance of payment instruments and the execution of payment transactions (e.g., accepting payments using payment cards, operating a payment gateway).
• Providing a money transfer service.

Limitations on SPI activities

The activity of Small Payment Institutions is subject to certain limitations. A Small Payment Institution can only operate within Poland, meaning that payment transactions processed by them cannot exceed Poland’s borders.

Another limitation is that SPIs cannot hold funds on their clients’ payment accounts exceeding the equivalent of EUR 2,000 for one user.

The third, most stringent limitation is related to transaction amounts. According to the regulations, the average monthly value of payment transactions executed by an SPI over a 12-month period cannot exceed the equivalent of EUR 1.5 million.

Previous procedural requirements for entry into the SPI register

Previously, entities applying for entry into the register had to complete an application form, the template of which was available on the website of the Polish Financial Supervision Authority (UKNF).

The application required a detailed description of the type and terms of the services provided, as well as the principles for the flow of information and funds between the user, the payer, and other participants in the payment service process. Additionally, graphical diagrams related to the services provided had to be prepared.

New requirements for applying for entry into the SPI register – additional obligations

The number of documents and the scope of information to be submitted with the application for entry into the register will increase under the new regulations.

New documents to be attached to the application include:

• A description of organizational solutions enabling the calculation of the total monthly amount of payment transactions.
• Anti-money laundering and counter-terrorism financing (AML) procedures.
• An activity program for the first 12 months of operation.
• A financial plan for the first 12 months of operation.
• Risk management procedures to which the institution may be exposed.
• A description of other business activities conducted or intended to be conducted by the institution.
• A description of the method for protecting users’ funds for payment services.

Consequences of changes in the procedure for entry into the SPI register

Expanding the scope of information and documents required when applying for entry into the register will lead to a longer preparatory period for submitting an application and extending the registration process.

A change can also be expected in the scope of the so-called sectoral letters sent by the UKNF to each Small Payment Institution along with the registration decision. As a reminder, the previous practice of the Polish Financial Supervision Authority regarding Small Payment Institutions was to send a request for the submission of a financial plan and an activity plan for 12-month periods only after entry into the register. Additionally, the Authority demanded the presentation of internal procedures, including:

• Anti-money laundering and counter-terrorism financing procedures (AML).
• Risk management procedures.
• Procedures for managing operational incidents and security-related incidents.
• Security and internal control policies.

The changes in the scope of documentation required by the Authority mean that some of the documents that the Authority previously requested in the sectoral letter will already be in its possession, having been submitted along with the application.

The new rules for entry into the SPI register will also apply to ongoing registration procedures at the time the new regulations come into effect. In practice, this means that all participants in ongoing procedures for entry into the register of Small Payment Institutions will receive a request to complete their application, likely with the customary 7-day deadline to provide the required documents.

Small institutions currently applying for entry into the SPI register should be prepared for such a request and ensure they have the necessary documentation in advance.

Changes in the procedure for applying for permission to provide services as a National Payment Institution (NPI)

We know that the activity of Small Payment Institutions is subject to certain limitations, one of which is the limitation on the value of payment transactions. Therefore, many Small Payment Institutions, after an initial period of operation, decide to apply for permission to provide services as National Payment Institutions to expand their payment activity. The change allows for an increase in the scale of payment activity.

The amendment that will come into effect shortly introduces certain changes in applying for permission to operate as payment institutions if the reason for submitting the application is the exceeding of the average value of payment transactions. These changes will come into effect on January 1, 2024.

Previously, if a Small Payment Institution reported exceeding the limit of the average total amount of transactions, it was obligated to either reduce the size of its operations or apply for permission to provide services as National Payment Institutions. If it chose the latter option, it could operate without adhering to the transaction limit of EUR 1.5 million per month for the duration of the application process.

The new regulations change this rule so that during the application process for permission to provide payment services as National Payment Institutions, the average monthly amount of payment transactions made by the Small Payment Institution cannot exceed the average transaction amount reported in its notification of exceeding the transaction limit. The regulations therefore establish a new transaction limit for the duration of the application process, with the limit being the value reported in the notification of exceeding the EUR 1.5 million limit.

This means that, unlike before, during the application process, the Small Payment Institution will have to limit the scale of its operations.

Furthermore, Small Payment Institutions will not be able to apply for an extension of the scope of payment services during a period in which the average total amount of transactions exceeds EUR 1.5 million from the previous 12 months.

For ongoing procedures at the time the new regulations come into effect, the legislator has introduced a transitional provision allowing Small Payment Institutions to adapt to the new regulations without making radical business decisions regarding their partners and clients. An amendment by the Senate has introduced a transitional provision stating that Small Payment Institutions applying for permission to provide payment services as National Payment Institutions due to exceeding transaction limits will be subject to the limit of the highest total transaction amount in a given month reported in 2023.

Responsibility of individuals managing a Small Payment Institution

Another important change for Small Payment Institutions concerns the rules of responsibility for members of management bodies and other individuals responsible for the operation of payment institutions and their compliance with the law. The fines imposed on such individuals have been increased.

Previously, the maximum monetary penalty that the supervisory authority could impose was three times the gross monthly remuneration of the responsible individual. After the amendment, the monetary penalty can be as high as PLN 500,000.

It is worth noting that monetary fines for individuals in management positions may be imposed when a Small Payment Institution fails to fulfill its obligation to provide information or data, does not comply with UKNF recommendations or orders within the specified period, obstructs or prevents UKNF inspections, or operates in violation of the law or poses a threat to the interests of users.

Removal from the register of Small Payment Institutions

The Act introduces a new power for the UKNF, namely the right to remove a Small Payment Institution from the register of these institutions if, for a period of 12 months from the date of registration, it has not commenced the payment activity for which it is authorized. A similar right applies to payment service bureaus and providers offering access to account information services.

Unfortunately, the legislator has not applied any transitional provisions to this provision, which means that it also applies to institutions that were registered before the Act came into force.

Summary

The changes will contribute to the professionalization of the payment services market – the requirements imposed on Small Payment Institutions will become similar to the requirements that other market participants subject to registration (information providers) must meet.

An increase in the number of proceedings to grant permission to provide services as National Payment Institutions can be expected since using the simplified license for Small Payment Institutions will become a less attractive service model in the longer term.

If you have any questions or concerns regarding the discussed changes in the legal regulations, please feel free to contact us. We also encourage you to familiarize yourself with the detailed scope of our advisory services for companies providing payment services.