Bank Account For Managing User Funds ' A New Obligation For Small Payment Institutions

• Published date: 02 April 2024
• Subject Matter: Finance and Banking, Financial Services, Fund Management/ REITs
• Law Firm: Dudkowiak Kopec & Putyra
• Author: Mr Mateusz Baluta

As of 29 September 2023, Small Payment Institutions are, in principle, obliged to transfer funds received from the payer to the recipient's payment account by bank transfer order only via a payment account established for such transfers. The provision is written in complicated language, so we will try to explain the practical sense of the new regulation.

What account is the Polish legislator referring to?

Article 117ha of the Payment Services Act imposes an obligation on Small Payment Institutions to use a dedicated payment account for the transfer of funds that are executed by the SPI in order to carry out bank transfer services ordered by users. However, the question that needs to be raised at this point is whether the SPI is required to have such a bank account only for the transfer orders requested by users? Or can other funds be held there? This question should be well analysed, as the legislator was not precise enough when creating the provision.

Therefore, it should be assumed that such an account may also be used to for depositing funds received from users. The purpose of such an account is solely to handle funds deposited by users, from which payment transactions will then be carried out in the context of the execution of the bank transfer service and beyond.

Is the SPI limited to bank transfers only?

In addition, another doubt that arises from the imprecise wording of the provision is whether such an account can be used by the SPI to carry out transfers for the execution of other services ordered by SPI users other than bank transfer services, such as, for example, card transactions or payment orders, as is suggested from the wording of Article 3(1)(2)(b) of the Payment Services Act. The answer is as following. Of course, the SPI can also carry out transactions ordered by users under payment orders or card transactions, which will be carried out from an account dedicated to handling users' funds.

Practical implementation.

Given the significant uncertainties, it is worth discussing the practical application of the provision. In practice, the SPI is required to have a standard bank account, which will not be used for any purpose other than the management of users' funds and, in particular, the execution of (1) bank transfers ordered by users; (2) card transactions ordered by users; (3) payment orders ordered by users. It must be guaranteed that no funds held by the SPI for any purpose other than the provision of payment services are placed on such...