Response to consultation on draft Guidelines on outsourcing

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Q1: Are the guidelines regarding the subject matter, scope, including the application of the guidelines to electronic money institutions and payment institutions, definitions and implementation appropriate and sufficiently clear?

The provisions of the Draft Guidelines on Outsourcing arrangements under Directive 2013/36/EU are not sufficiently correlated with the requirements of PSD2 and EMD. According to PSD2 and EMD, the provision of payment services and the distribution/redemption of electronic money may be outsourced by payment institutions and electronic money institutions only to agents and distributors - explicitly regulated by the EU directives in terms of conditions to be met, responsibility of payment institutions/electronic money institutions and the relation with the competent authority.
In order not to alter the clarity of the rules already established in the mentioned directives, in our opinion, the Guidelines on Outsourcing arrangements under Directive 2013/36/EU should explicitly specify the fact that they are applicable to payment institutions/electronic money institutions only for the outsourcing of operational functions.

Q3: Are the guidelines in Title II and, in particular, the safeguards ensuring that competent authorities are able to effectively supervise activities and services of institutions and payment institutions that require authorisation or registration (i.e. the activities listed in Annex I of Directive 2013/36/EU and the payment services listed in Annex I of Directive (EU) 2366/2015) appropriate and sufficiently clear or should additional safeguards be introduced?

If it is decided that the draft guidelines should apply for one reason or another (case in which the arguments behind this decision should be disclosed) to the activity of providing payment services (distributing e-money) through agents (distributors), there is a need to further clarify the guidelines application in this area, taking into consideration the requirements already stipulated in PSD2 and EMD regarding agents and distributors (Article 19 of PSD2).

Q10: Are the guidelines in Section 10 regarding the contractual phase appropriate and sufficiently clear; do the proposals relating to the exercise of access and audit rights give rise to any potential significant legal or practical challenges for institutions and payment institutions?

The guidelines in Section 10 need to be reviewed/corrected on the issue of sub-outsourcing of payment services/distributions of e-money. We emphasize the fact that providing suh a possibility in the Guidelines is contrary to the provisions of Directive 2015/2366/EU which statutes the “agent institution” with specific registration and transparency requirements (please see Article 14, Article 19, Article 20 of Directive 2015/2366/EU).

Name of organisation

National Bank of Romania - Regulation and Licensing Department