Banking updates

Austria

Contributed by Schima Mayer Starlinger
No worms for early birds? Lexitor and Austrian implementation of EU Consumer Credit Directive
  • Austria
  • 24 January 2020

Considering the obvious conflict with European Court of Justice case law, the Austrian legislature's aim to fully implement the EU Consumer Credit Directive and the Austrian Consumer Credit Act's intended (but directive-breaching) effects consumers, legal advisers and the courts are now confronted with the delicate question of how consumer requests for repayment should be dealt with.

GDPR versus PSD II – right of access to information versus charges for information
  • Austria
  • 08 November 2019

The Federal Administrative Court recently confirmed that a credit institution had violated its obligations under the EU Data Protection Regulation by refusing to provide its customer access to information – at no cost – on specific payment transactions effected in the previous five years. Consumer protection organisations and the Austrian press celebrated the decision, but on closer inspection, those cheers seem to have been uttered a little too early and the celebrants' expectations appear to have been a little too high.

FMA extends deadline for strong customer authentication for e-commerce card payments
  • Austria
  • 25 October 2019

Following the recent agreement reached by the European Banking Authority, the Austrian Financial Markets Authority extended the deadline for implementing strong customer authentication for card payments in e-commerce transactions. The extension applies only to card payments in e-commerce transactions; all other types of transaction require full compliance with the strong customer authentication standards.

Credit insurance – void assignment for breach of banking secrecy
  • Austria
  • 27 September 2019

The Supreme Court recently extended to credit insurers its established jurisprudence that banking secrecy may prevent a statutory transfer of credit claims on fulfilment of such claims by a third party. Further, the court affirmed its view that the purpose of making a credit claim recoverable does not constitute an overriding interest that could breach banking secrecy.

Frolicking in the (cash)pool? Hesitant embrace of state-of-the-art cash management
  • Austria
  • 30 August 2019

The Supreme Court recently dismissed an insolvency administrator's complaint challenging the enforcement of an account pledge provided to a bank as security for a notional cash pool arrangement. The court's guidance on the advantages of cash pooling arrangements and on contractual minimum requirements must be considered when structuring new or reviewing existing cash pool arrangements of any kind.


Bermuda

Digital Asset Business Act 2018
Carey Olsen Bermuda
  • Bermuda
  • 12 October 2018

Since its election, the current government has enthusiastically embraced the fintech sector and the potential that it offers and has repeatedly expressed its intention for Bermuda to be a significant centre for this industry. In furtherance of this goal, a significant part of the government's legislative programme for 2018 has been, among other things, the implementation of a comprehensive regulatory regime. The central pillar of this regime is the Digital Asset Business Act, which came into force on 10 September 2018.


Brazil

Contributed by BMA Barbosa Mussnich Aragao
Presidential decree simplifies foreign investment in Brazilian banking sector
  • Brazil
  • 01 November 2019

A recently issued presidential decree has authorised the Central Bank of Brazil to recognise the government's interest in establishing branches of foreign financial institutions in Brazil and increasing foreign equity participation in Brazilian financial institutions without the need for further presidential authorisation. Prior to the decree's enactment, these matters required the express approval of international treaties or presidential decrees recognising that investments were in the government's interest.

New rules for credit fintech companies
  • Brazil
  • 27 July 2018

The National Monetary Council recently issued Resolution 4,656, regulating credit fintech companies. The resolution will allow direct credit companies and interpersonal loan companies to conduct loan and financial operations through electronic platforms. Although it is still uncertain how the market will react to the new rules, the industry is optimistic, considering the significant developments in this area that have been observed in other markets.

CADE and Central Bank sign memorandum for further cooperation
  • Brazil
  • 13 April 2018

The Administrative Council for Economic Defence (CADE) and the Central Bank recently entered into a memorandum of understanding. This initiative strengthens the relationship between the two authorities and promotes greater cooperation among them for the analysis of merger cases and anti-competitive practices by financial institutions. It also represents an important step forward, signalling the end to the longstanding dispute between CADE and the Central Bank over jurisdictional conflicts.


China

New regulations promote issuance of panda bonds
  • China
  • 19 October 2018

The People's Bank of China and the Ministry of Finance recently issued the Interim Measures for the Administration of Bond Issuance by Overseas Institutions in the National Inter-bank Bond Market. Among other things, the new measures further clarify the qualification, application procedure, bond issuance, registration, custody and settlement and information disclosure requirements for overseas institutions that issue so-called 'panda bonds'.

PBOC issues new compliance requirements for cross-border financial network and information services
  • China
  • 24 August 2018

The People's Bank of China recently issued a notice to strengthen the provision of cross-border financial network and information services. The notice includes a number of compliance requirements concerning the provision and use of such services, including with regard to overseas providers, domestic users and industry self-discipline.

CBRC issues new circular to regulate private lending
  • China
  • 08 June 2018

The China Banking Regulatory Commission's Circular on Matters concerning Regulating Private Lending and Maintaining Economic and Financial Order recently came into effect. The circular was formulated in accordance with various laws and measures and establishes the basis for clarifying credit rules and prohibiting illegal private lending. According to government officials, the circular will be implemented in three stages.

CBRC publishes new rules on equity management of commercial banks
  • China
  • 06 April 2018

The China Banking Regulatory Commission (CBRC) recently issued its Interim Measures for the Equity Management of Commercial Banks. The measures have tightened the CBRC's regulation of the information disclosure and reporting requirements imposed on material shareholders that have a significant impact on the operation and management of commercial banks established in China.


Croatia

Act on Nullity compatibility with EU acquis communautaire
  • Croatia
  • 05 July 2019

Since its adoption, the Act on Nullity has caused controversy, with some Croatian scholars and judges expressing their concern about (for example) its constitutionality and contravention of EU law. While most judicial decisions made after the act's enactment have declared loan agreements which fall within the act's scope null and void, some Croatian courts have interpreted the act differently due to its ambiguity.

Taxation of virtual currencies
  • Croatia
  • 19 April 2019

The Croatian Tax Authority has issued several relevant opinions regarding the taxation of virtual currencies. Since 2015 the Croatian Tax Authority, in line with the European Court of Justice's Skatteverket decision, has exempted virtual currency exchange services from value added tax, established relevant tax treatments for the mining and trading of virtual currencies and provided its opinion on payments in virtual currencies.

Overview of acts and warnings regarding virtual currencies
  • Croatia
  • 12 April 2019

Virtual currencies and attempts to categorise them have attracted widespread attention. For virtual currencies to be considered electronic money under the Electronic Money Act, they must follow certain rules, including being stored electronically, representing a monetary value and being issued on receipt of funds. However, the Croatian National Bank has warned that trading and paying in virtual currencies cannot be considered payment services under the Payment System Act.

Virtual currencies under Anti-money Laundering Act
  • Croatia
  • 29 March 2019

The current Act on Preventing Anti-money Laundering (AML) and Financing Terrorism does not regulate crypto-assets. However, the proposed new bill on Preventing AML and Financing Terrorism intends to regulate crypto-assets and require legal and natural persons providing exchange services for virtual and fiduciary currencies or wallet custodial services to comply therewith.

Overview of act on loan agreements with international element
  • Croatia
  • 10 August 2018

The Act on Nullity of Loans with an International Element Concluded in the Republic of Croatia was created following a period of time wherein certain foreign credit unions continually granted loans to Croatian borrowers. As a result, some consumer organisations pushed to have such loans annulled in order to stop the ongoing enforcement procedures over Croatian borrowers' assets. However, concerns over the act have been raised, including the fact that it is unconstitutional and contravenes EU law.