Changes from report parliamentary committee draft to plenary report

Added(e) failure of payment service providers to respect the period for compensation of payment service users as set out in Article 56(2), Article 57(2) and Article 59(2).

Added2. In the cases referred to in paragraph 1, the applicable administrative sanctions and administrative measures shall be effective, proportionate and dissuasive and shall include the following:

Added(a) administrative fines;

Added(i) in the case of a legal person, a maximum administrative fine of at least 7,5 % of its total annual turnover as defined under paragraph 3;

Added(ii) in the case of a natural person, a maximum administrative fine of at least EUR 2 750 000, or in the Member States whose currency is not the euro, the corresponding value in the national currency on the date of entry into force of this Regulation;

Added(iii) a maximum administrative fine of at least twice the amount of the profits gained from the breach, where that profit can be determined.

Added(b) a public statement indicating the legal or natural person responsible for the breach and the nature of the breach;

Added(c) an order requiring the legal or natural person responsible for the breach to cease the unlawful conduct and to desist from repeating it;

Added(d) a temporary ban preventing a member of the management body of the legal person, or any other natural person who is held responsible for the breach, from exercising managing functions.

Added3. The total annual turnover referred to in paragraph 2, point (a)(i) of this Article and in Article 98(1) of this Regulation shall be equal to the net turnover as defined in Article 2, point (5), of Directive 2013/34/EU according to the annual financial statements available for the latest balance sheet date, for which the members of the administrative, management and supervisory bodies of the legal person have responsibility.

AddedWhere the legal person is a parent undertaking or a subsidiary of a parent undertaking which is required to prepare consolidated financial statements in accordance with Article 22 of Directive 2013/34/EU, the relevant total annual turnover shall be the net turnover or the revenue to be determined in accordance with the relevant accounting standards, according to the consolidated financial statements of the ultimate parent undertaking available for the latest balance sheet date, for which the members of the administrative, management and supervisory body of the ultimate undertaking have responsibility.

Added4. Member States may empower competent authorities, in accordance with national law, to impose other types of sanctions and other type of sanctioning powers in addition to those referred to in paragraph 2 of this Article and Article 98 on periodic penalty payments.

AddedPeriodic penalty payments

Added1. Competent authorities shall be entitled to impose periodic penalty payments on legal or natural persons for failure to comply with any decision, order, interim measure, request, obligation or other measure adopted in accordance with this Regulation.

AddedPeriodic penalty payment referred to in the first subparagraph shall be effective and proportionate and shall consist of a daily amount to be paid until compliance is restored. They shall be imposed for a period not exceeding 6 months from the date indicated in the decision imposing the periodic penalty payments.

AddedCompetent authorities shall be entitled to impose maximum periodic penalty payments of at least:

Added(a) 3% of the average daily turnover in the case of a legal person;

Added(b) EUR 30.000 in the case of a natural person.

AddedThe average daily turnover shall be the total annual turnover referred to in Article 97(3), divided by 365.

Added2. Member States may provide for higher amounts of pecuniary penalty payments than those laid down in paragraph 1.

AddedElements to be considered when determining administrative sanctions and other administrative measures

Added1. 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:

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

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

Added(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;

Added(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;

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

Added(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;

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

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

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

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

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

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

Added2. 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.

AddedRight of appeal

Added1. The decisions taken by the competent authorities pursuant to this Regulation shall be contestable before the courts.

Added2. Paragraph 1 shall apply also in respect of failure to act.

AddedPublication of administrative sanctions and administrative measures

Added1. 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.

AddedCompetent 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.

Added2. 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.

Added3. 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.

Added4. 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.

AddedMonitoring of proceedings, sanctions and measures

Added1. Competent authorities shall report to the EBA, in an anonymised way and aggregated format on a regular basis:

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

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

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

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

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

Added2. When the competent authority discloses an administrative sanction or an administrative measure to the public, it shall simultaneously report them to the EBA.

Added3. 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.

AddedNotification of implementing measures

AddedMember States shall notify the laws, regulations and administrative provisions adopted in accordance with this Chapter, including any relevant criminal law provisions, to the Commission by [ OP please insert the date = the date of entry into force of this Regulation]. Member States shall notify the Commission without undue delay of any subsequent amendments thereto.

AddedProduct intervention powers by the EBA

AddedEBA temporary intervention powers

Added1. 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.

Added2. The EBA shall take a decision under paragraph 1 only if all of the following conditions are fulfilled:

Added(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;