Changes from plenary report to adopted text

1. Competent authorities, when determining the type and level of administrative sanctions or other administrative measures, shall take into account all relevant elements and circumstances to apply proportionate sanctions, including:

(a) the seriousness and the duration of the infringement;

(b) the degree of responsibility of the natural or legal person responsible for the infringement;

(c) the financial strength of the natural or legal person responsible for the breach, as indicated, among others, by the total annual turnover of the legal person, or the annual income of the natural person responsible for the infringement;

(d) the magnitude of profits gained or losses avoided by the natural or legal person responsible for the infringement, insofar as they can be determined;

(e) the losses for third parties resulted from the infringement, insofar as they can be determined;

(f) the disadvantage resulting to the legal or natural person responsible for the breach from the duplication of criminal and administrative proceedings and sanctions for the same conduct;

(g) the impact of the infringement in the interests of consumers and other payment services users;

(h) any actual or potential systemic negative consequences of the infringement;

(i) the complicity or participation of more than one natural or legal person in the infringement;

(j) previous infringements committed by the natural or legal person responsible for the breach;

(k) the level of cooperation of the natural or legal person responsible for the infringement with the competent authority;

(l) any remedial action or measure undertaken by the legal or natural person responsible for the infringement to prevent its repetition.

2. Competent authorities that use settlement agreements or expedited enforcement procedures in accordance with Article 96(4) shall adapt the relevant administrative sanctions and administrative measures laid down in Articles 96, 97, and 98 to the case concerned to ensure the proportionality thereof.

Publication of administrative sanctions and administrative measures

1. Competent authorities shall publish on their website all decisions imposing an administrative sanction or administrative measure on legal and natural persons, for breaches of this Regulation, and where applicable, all settlement agreements. The publication shall include a short description of the breach, the administrative sanction or other administrative measure imposed, or, where applicable, a statement about the settlement agreement. The identity of the natural person subject to the decision imposing an administrative sanction or administrative measure shall not be published.

Competent authorities shall publish the decision and the statement referred to in the first subparagraph immediately after the legal or natural person subject to the decision has been notified of that decision or the settlement agreement has been signed.

2. By derogation from paragraph 1, where the publication of the identity or other personal data of natural persons is deemed necessary by the national competent authority to protect the stability of the financial markets or to ensure the effective enforcement of this Regulation, including in the case of public statements referred to in Article 97(2)(b) or temporary bans referred to in Article 97(2)(d), the national competent authority may publish also the identity of the persons or personal data provided that it justifies such a decision and that the publication is limited to the personal data that is strictly necessary to protect the stability of the financial markets or to ensure the effective enforcement of this Regulation.

3. Where the decision imposing an administrative sanction or other administrative measure is subject to appeal before the relevant judicial or other authority, competent authorities shall also publish on their official website without delay, information on the appeal and any subsequent information on the outcome of such an appeal, insofar as it concerns legal persons. Where the appealed decision concerns a natural person and the derogation under paragraph 2 is not applied, competent authorities shall publish information on the appeal only in an anonymised version.

4. Competent authorities shall ensure that any publication made in accordance with this Article remains on their official website for a period of up to 5 years. Personal data contained in the publication shall be kept on the official website of the competent authority only if an annual review shows the continued need to publish that data to protect the stability of the financial markets or to ensure the effective enforcement of this Regulation, and in any event for no longer than 5 years.

Monitoring of proceedings, sanctions and measures

1. Competent authorities shall report to the EBA, in an anonymised way and aggregated format on a regular basis:

(a) initiated, suspended or closed formal administrative proceedings leading to imposing administrative sanctions or administrative measures;

(b) periodic penalty payments imposed in accordance with Article 98 for ongoing breaches of this Regulation;

(c) where applicable, settlement agreements and expedited enforcement procedures, and the outcome thereof, regardless of their publication; in accordance with Article 96(4);

(d) criminal proceedings resulting in a conviction and related sanctions reported by judicial authorities in accordance with Article 91(4), point (a);

(e) any appeal against decisions to impose criminal or administrative sanctions or administrative measures and the outcome of such an appeal.

2. When the competent authority discloses an administrative sanction or an administrative measure to the public, it shall simultaneously report them to the EBA.

3. Within 2 years after the date of application of this Regulation, and subsequently every 2 years, the EBA shall submit a report to the Commission on the application of sanctions by competent authorities to ensure compliance with this Regulation.

EBA temporary intervention powers

1. In accordance with Article 9(5) of Regulation (EU) No 1093/2010, the EBA may, where the conditions in paragraphs 2 and 3 of this Article are fulfilled, temporarily prohibit or restrict in the Union, a certain type or a specific feature of a payment service or instrument or an electronic money service or instrument. A prohibition or restriction may apply in circumstances, or be subject to exceptions, specified by the EBA.

2. The EBA shall take a decision under paragraph 1 only if all of the following conditions are fulfilled:

(a) the proposed action addresses a significant number of payment services users or electronic money services users or a threat to the orderly functioning of the payment or electronic money markets, and the integrity of those markets or to the stability of the whole or part of these markets in the Union;

(b) regulatory requirements under Union law that are applicable to the relevant payments service or electronic money service do not address the threat;

(c) a competent authority or competent authorities have not taken action to address the threat or the actions that have been taken do not adequately address the threat.

Where the conditions set out in the first subparagraph are fulfilled, the EBA may impose the prohibition or restriction referred to in paragraph 1 on a precautionary basis before a payment service or electronic money service has been offered or distributed to payment services users.

3. When taking action under this Article, the EBA shall ensure all of the following:

(a) the action does not have a detrimental effect on the efficiency of the payments market or electronic money services market or on payment services or electronic money service providers that is disproportionate to the benefits of the action;

(b) the action does not create a risk of regulatory arbitrage, and

(c) the action has been taken after consulting the relevant national competent authority.

4. Before deciding to take any action under this Article, the EBA shall notify competent authorities of the action it proposes.

5. The EBA shall publish on its website notice of any decision to take any action under this Article. The notice shall specify details of the prohibition or restriction and specify a time after the publication of the notice from which the measures will take effect, while also ensuring that notices on such decisions on natural persons are published only in anonymised version. A prohibition or restriction shall only apply to action taken after the measures take effect.

6. The EBA shall review a prohibition or restriction imposed under paragraph 1 at appropriate intervals and at least every 3 months. If the prohibition or restriction is not renewed after that 3 month period it shall expire.

7. Action adopted by the EBA under this Article shall prevail over any previous action taken by a competent authority.

8. The Commission shall adopt delegated acts in accordance with Article 106 to specify criteria and factors to be taken into account by the EBA in determining when there is a significant number of payment services users or electronic money services users or a threat to the orderly functioning of the payment or electronic money services markets, and the integrity of these markets or to the stability of the whole or part of these markets in the Union referred to in paragraph 2, point (a).

Those criteria and factors shall include:

(a) the degree of complexity of a payment service or instrument or electronic money service or instrument and the relation to the type of users, including consumers, to whom they are offered;

(b) the degree of riskiness, for consumers, of a payment service or instrument or electronic money service or instrument;