S.I. No. 231/1999 - European Communities (Cross-Border Credit Transfers) Regulations, 1999
I, CHARLIE McCREEVY, Minister for Finance, in exercise of the powers conferred on me by section 22 of the Central Bank Act, 1997 (No. 8 of 1997), and for the purpose of giving effect to Directive No. 97/5/EC(1) of the European Parliament and of the Council of 27 January 1997, hereby make the following regulations: | ||||||||
1. (1) These Regulations may be cited as the European Communities (Cross-Border Credit Transfers) Regulations, 1999. | ||||||||
(2) These Regulations shall come into operation on the 14th day of August, 1999. | ||||||||
2. (1) In these Regulations, except where the context otherwise requires— | ||||||||
“beneficiary” means the final recipient of a cross-border credit transfer for whom the corresponding funds are made available in an account to which he or she has access or are otherwise made available to him or her; | ||||||||
“credit institution” means an institution as defined in Article 1 of Council Directive 77/780/EEC(2) , and includes branches, within the meaning of the third indent of that Article and located in the European Community, of credit institutions which have their head offices outside the European Community and which by way of business execute cross-border credit transfers; | ||||||||
“cross-border credit transfer” means a transaction carried out on the initiative of an originator via an institution or its branch in one Member State, with a view to making available an amount of money to a beneficiary at an institution or its branch in another Member State, and the originator and the beneficiary may be one and the same person; | ||||||||
“cross-border credit transfer order” means an unconditional instruction in any form, given directly by an originator to an institution to execute a cross-border credit transfer; | ||||||||
“customer” means the originator or the beneficiary, as the case may be; | ||||||||
“date of acceptance” means the date of fulfillment of all the conditions required by the institution as to the execution of the cross-border credit transfer order and relating to the availability of adequate financial cover and the information required to execute that order; | ||||||||
“Directive” means Directive No. 97/5/EC(3) of the European Parliament and of the Council of 27 January 1997 on cross-border credit transfers; | ||||||||
“EFTA states” means members of the European Free Trade Association; | ||||||||
“financial institution” means— | ||||||||
(a) credit institutions as defined in the first indent of Article 1 of Directive No. 77/780/EEC, | ||||||||
(b) insurance undertakings as defined in Article 1(a) of Directive No. 92/49/EEC(4) , | ||||||||
(c) assurance undertakings as defined in Article 1(a) of Directive No. 92/96/EEC(5) , | ||||||||
(d) UCITS as defined in Article 1(2) of Directive No. 85/611/EEC(6) , | ||||||||
(e) investment firms as defined in Article 1(2) of Directive No. 93/22/EEC(7) , | ||||||||
(f) other undertakings the activities of which are similar to those of undertakings referred to in subparagraphs (a) to (e) or the principal activity of which is to acquire holdings of financial assets or to transform financial claims; | ||||||||
“institution” means a credit institution or other institution and, for the purposes of Regulations 7 to 12, branches of one credit institution situated in different Member States which participate in the execution of a cross-border credit transfer shall be regarded as separate institutions; | ||||||||
“intermediary institution” means an institution which is neither that of the originator nor that of the beneficiary and which participates in the execution of a cross-border credit transfer; | ||||||||
“Member State” means a Member State of the European Communities; | ||||||||
“originator” means a natural or legal person that orders the making of a cross-border credit transfer to a beneficiary; | ||||||||
“other institution” means any natural or legal person, other than a credit institution, that by way of business executes cross-border credit transfers; | ||||||||
“reference interest rate” means the rate fixed from time to time, by the Minister for Enterprise, Trade and Employment, by order made under section 10 (1) of the Prompt Payment of Accounts Act, 1997 (No. 31 of 1997). | ||||||||
(2) A word or expression that is used in these Regulations and is also used in the Directive has, unless the contrary intention appears, the same meaning in these Regulations as it has in the Directive. | ||||||||
(3) In these Regulations, unless the contrary intention appears— | ||||||||
(a) a reference to a regulation is a reference to a regulation of these Regulations, and | ||||||||
(b) a reference to a paragraph or subparagraph is a reference to a paragraph or subparagraph of the provision in which the reference occurs. | ||||||||
3. These Regulations shall apply to cross-border credit transfers, not exceeding euro 50,000, or the equivalent thereof, in the currencies of the Member States and of the EFTA States, ordered by persons other than a credit institution, a financial institution, or other institution, and executed by a credit institution or other institution. | ||||||||
4. (1) An institution shall make available to its actual and prospective customers information on the conditions which apply to the making of a cross-border credit transfer. | ||||||||
(2) The information referred to in paragraph (1) shall be provided in writing, including, where appropriate, by electronic means, and shall be in a readily comprehensible form. | ||||||||
(3) The information referred to in paragraph (1) shall include, at least, details of the following: | ||||||||
(a) when a cross-border credit transfer order given to the institution concerned is executed, the period, including the commencement date of that period, required for the funds concerned to be credited to the account of the beneficiary's institution; | ||||||||
(b) upon receipt of a cross-border credit transfer, the period required for the funds credited to the account of the beneficiary's institution to be credited to the beneficiary's account or otherwise made available to him or her; | ||||||||
(c) the manner of calculation of any commission fees and charges payable by the customer to the institution, including, where appropriate, the rates; | ||||||||
(d) the value date, if any, applied by the institution; | ||||||||
(e) the complaint and redress procedures available to the customer, in accordance with Regulation 14, and the arrangements for access to those procedures; | ||||||||
(f) the reference exchange rates used. | ||||||||
5. (1) Following the execution or receipt of a cross-border credit transfer, an institution shall make available to the customer concerned the information specified in paragraph (3) unless that customer expressly forgoes this. | ||||||||
(2) The information referred to in paragraph (1) shall be provided in writing, including, where appropriate, by electronic means, and shall be in a readily comprehensible form. | ||||||||
(3) The information referred to in paragraph (1) shall include, at least, details of the following: | ||||||||
(a) a reference number by which the customer may identify the cross-border credit transfer; | ||||||||
(b) the original amount of the cross-border credit transfer; | ||||||||
(c) the amount of all charges and commission fees payable by the customer; | ||||||||
(d) the value date, if any, applied by the institution. | ||||||||
(4) Where the originator has specified that the charges for the cross-border credit transfer are to be borne, in whole or in part, by the beneficiary, the beneficiary shall be informed thereof by his or her institution. | ||||||||
(5) Where any amount has been converted, the institution which converted it shall inform its customer of the exchange rate used. | ||||||||
6. An institution, unless it does not wish to do business with that customer, shall at a customer's request, for a cross-border credit transfer with stated specifications, give an undertaking in relation to— | ||||||||
(a) the period required for execution of the cross-border credit transfer concerned, and | ||||||||
(b) the commission fees and charges payable, other than those relating to the exchange rate used. | ||||||||
7. (1) The originator's institution shall execute the cross-border credit transfer concerned within the time limit agreed with the originator. | ||||||||
(2) Where— | ||||||||
(a) the agreed time limit is not complied with, or | ||||||||
(b) in the absence of any such time limit, where, at the end of the fifth banking business day following the date of acceptance of the cross-border credit transfer order, the funds have not been credited to the account of the beneficiary's institution, | ||||||||
the originator's institution shall compensate the originator. | ||||||||
(3) The compensation referred to in paragraph (2) shall comprise the payment of interest calculated by applying the reference interest rate to the amount of the cross-border credit transfer for the period from— | ||||||||
(a) the end of the agreed time limit or, in the absence of any such time limit, the end of the fifth banking business day following the date of acceptance of the cross-border credit transfer order, | ||||||||
to | ||||||||
(b) the date on which the funds are credited to the account of the beneficiary's institution. | ||||||||
(4) Where non-execution of the cross-border credit transfer— | ||||||||
(a) within the agreed time limit, or | ||||||||
(b) in the absence of any such time limit, before the end of the fifth banking business day following the date of acceptance of the cross-border credit transfer, | ||||||||
is attributable to an intermediary institution, that institution shall be required to compensate the originator's institution. | ||||||||
8. (1) The beneficiary's institution shall make the funds resulting from the cross-border credit transfer available to the beneficiary within the time limit agreed with the beneficiary. | ||||||||
(2) Where— | ||||||||
(a) the agreed time limit is not complied with, or | ||||||||
(b) in the absence of any such time limit, where, at the end of the banking business day following the day on which the funds were credited to the account of the beneficiary's institution, the funds have not been credited to the beneficiary's account or have not been otherwise made available to him or her, | ||||||||
the beneficiary's institution shall compensate the beneficiary. | ||||||||
(3) The compensation referred to in paragraph (2) shall comprise the payment of interest calculated by applying the reference interest rate to the amount of the cross-border credit transfer for the period from— | ||||||||
(a) the end of the agreed time limit or, in the absence of any such time limit, the end of the banking business day following the day on which the funds were credited to the account of the beneficiary's institution, | ||||||||
to | ||||||||
(b) the date on which the funds are credited to the beneficiary's account or are otherwise made available to him or her. | ||||||||
9. No compensation shall be payable pursuant to Regulations 7 and 8 where the originator's institution or the beneficiary's institution, as the case may be, can establish that the delay is attributable to the originator or the beneficiary, as the case may be. | ||||||||
10. Regulations 7, 8 and 9 shall apply without prejudice to the other rights of customers and institutions that have participated in the execution of a cross-border credit transfer order. | ||||||||
11. (1) (a) After the date of acceptance of the cross-border credit transfer order, the originator's institution, any intermediary institution and the beneficiary's institution shall each be obliged to execute that cross-border credit transfer for the full amount thereof unless the originator has specified that the costs of the cross-border credit transfer are to be borne, in whole in in part, by the beneficiary. | ||||||||
(b) Subject to subparagraph (c), subparagraph (a) shall be without prejudice to the possibility of the beneficiary's institution levying a charge on the beneficiary relating to the administration of his or her account, in accordance with the relevant rules and customs. | ||||||||
(c) A charge referred to in subparagraph (b) may not be used by the beneficiary's institution to avoid the obligations imposed by subparagraph (a). | ||||||||
(2) Without prejudice to any other claim which may be made, where the originator's institution or an intermediary institution has made a deduction from the amount of the cross-border credit transfer in breach of paragraph (1), the orginator's institution shall, at the originator's request, credit, free of all deductions and at its own cost, the amount deducted to the beneficiary unless the originator requests that the amount be credited to him or her. | ||||||||
(3) Any intermediary institution which has made a deduction in breach of paragraph (1) shall credit the amount deducted, free of all deductions and at its own cost, to the originator's institution or, if the originator's institution so requests, to the beneficiary of the cross-border credit transfer. | ||||||||
(4) Where a breach of the duty to execute the cross-border credit transfer order in accordance with the originator's instructions has been caused by the beneficiary's institution, and without prejudice to any other claim which may be made, the beneficiary's institution shall be liable to credit to the beneficiary, at its own cost, any sum wrongly deducted. | ||||||||
12. (1) If, after a cross-border credit transfer order has been accepted by the originator's institution, the relevant amounts are not credited to the account of the beneficiary's institution, and without prejudice to any other claim which may be made, the originator's institution shall refund or credit the originator with the amount of the cross-border credit transfer, which amount shall not exceed euro 12,500, and— | ||||||||
(a) interest calculated by applying the reference interest rate to the amount of the cross-border credit transfer for the period between the date of the cross-border credit transfer order and the date of the credit, and | ||||||||
(b) the charges relating to the cross-border credit transfer paid by the originator. | ||||||||
(2) (a) The amounts referred to in paragraph (1) shall be made available to the originator within 14 banking business days following the date of his or her request, unless the funds corresponding to the cross-border credit transfer have, in the mean-time, been credited to the account of the beneficiary's institution. | ||||||||
(b) A request referred to in subparagraph (a) may not be made before the expiry of the time limit agreed between the originator's institution and the originator for the execution of the cross-border credit transfer order or, in the absence of any such time limit, before the expiry of the time limit specified in Regulation 7(2). | ||||||||
(3) (a) Each intermediary institution which has accepted the cross-border credit transfer order shall be obliged to refund at its own cost the amount of the cross border credit transfer, including the related costs and interest, to the institution which instructed it to carry out the order. | ||||||||
(b) If the cross-border credit transfer was not completed because of errors or omissions in the instructions given by the institution which instructed it to carry out the cross-border credit transfer, the intermediary institution shall endeavour as far as possible to refund the amount of the cross-border credit transfer. | ||||||||
(4) Notwithstanding paragraphs (1), (2) and (3), if the cross-border credit transfer was not completed because of its non-execution by an intermediary institution chosen by the beneficiary's institution, the beneficiary's institution shall be obliged to make the funds, not exceeding euro 12,500, available to the beneficiary. | ||||||||
(5) Notwithstanding paragraphs (1), (2) and (3), if the cross-border credit transfer was not completed because of an error or omission in the instructions given by the originator to his or her institution or because of non-execution of the cross-border credit transfer by an intermediary institution expressly chosen by the originator, the originator's institution and the other institutions involved shall endeavour as far as possible to refund the amount of the cross-border credit transfer. | ||||||||
(6) (a) Subject to subparagraph (b), where the amount of the cross-border credit transfer referred to in paragraph (5) has been recovered by the originator's institution, it shall be obliged to credit it to the originator. | ||||||||
(b) The institutions, including the originator's institution, are not obliged to refund the charges and interest accruing, and may deduct the costs arising from the recovery if specified. | ||||||||
13. Without prejudice to Directive No. 91/308/EEC(8) , institutions participating in the execution of a cross-border credit transfer order shall be released from the obligations provided by these Regulations where they can adduce reasons of force majeure, namely abnormal and unforseeable circumstances beyond the control of the person pleading force majeure, the consequences of which would have been unavoidable despite all efforts to the contrary, which are relevant to its provisions. | ||||||||
14. (1) The Central Bank shall establish and administer a scheme for the purposes of the investigation and determination of disputes, arising from the application of these Regulations, between— | ||||||||
(a) an originator and his or her institution, or | ||||||||
(b) a beneficiary and his or her institution. | ||||||||
(2) (a) Subject to subparagraph (b), the Central Bank may, subject to the consent of the Minister for Finance and subject to the agreement of terms and conditions with the Ombudsman for the Credit Institutions, delegate its functions under this Regulation in respect of the investigation and determination of disputes to the Ombudsman for the Credit Institutions. | ||||||||
(b) A delegation under subparagraph (a) shall be limited to disputes which involve credit institutions, or other institutions, which, for the purpose of cross-border credit transfers, are parties to the Ombudsman for the Credit Institutions Scheme. | ||||||||
(3) Subject to paragraph (4), where a determination in respect of a dispute referred to in paragraph (1) is made— | ||||||||
(a) by the Central Bank, the determination shall, subject to the consent of the parties to the dispute, be binding on the parties concerned, or | ||||||||
(b) by the Ombudsman for the Credit Institutions, the determination shall be binding only on the institution concerned and the originator or beneficiary, as the case may be, may accept or reject that determination. | ||||||||
(4) The reference of a dispute, in accordance with this Regulation, to the Central Bank or to the Ombudsman for the Credit Institutions, as the case may be, shall not affect the rights of any person to have the dispute concerned determined in any other manner provided by law. | ||||||||
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EXPLANATORY NOTE | ||||||||
(This note is not part of the Instrument and does not purport to be a legal interpretation.) | ||||||||
The purpose of these Regulations is to give effect to Directive No. 97/5/EC of 27 January 1997 on cross-border credit transfers. | ||||||||
The Directive's primary aim is to provide a framework for the making of cross-border credit transfers and in so doing provide for transparency and information on credit transfers, time limits on credit transfers, and liability for non-performance of credit transfers. The provisions of the Directive will apply to any cross-border credit transfer in the currencies of the Member States up to euro 50,000 or the equivalent thereof ordered by persons other than a credit institution, a financial institution or other institution — as defined — and executed by a credit institution or other institution. They will not apply to cross-border credit transfers ordered by a financial institution in favour of another financial institution. | ||||||||
(1) O.J. No. L43, 14.2.1997, p.25. (2) O.J. No. L322, 17.12.1977, p.30. Directive as last amended by Directive No. 95/26/EC (O.J. No. L168, 18.12.95. p.7). (3) O.J. No. 43, 14.2.1977, p.25. (4) O.J. No. L228, 11.08.1992, p.1. (5) O.J. No. L360, 9.12.1992, p.1. (6) O.J. No. L375, 31.12.1985, p.3. |
