ELM 1
Application,
contents, purpose and general
ELM 1.1
Application
- 01/12/2004
ELM 1.1.1
See Notes
ELM applies to every firm and every other person within a category
listed in column (2) of the table in ELM
1.1.2 R and
in accordance with column (3) of that table. ELM
1.1.3 R applies
to an incoming EEA firm and
an incoming Treaty firm instead
of ELM
1.1.2 R.
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ELM 1.1.2
See Notes
Application of different chapters of ELM (except for an incoming EEA firm or an incoming Treaty firm)
| (1) Chapter | (2) Categories of person to which chapter applies | (3) Applicable rules and guidance |
| 1 (Application, contents, purpose and general) | Every firm that wishes to issue e-money | ELM 1.3 |
| An e-money firm | The whole chapter | |
| A small e-money issuer and an applicant for a small e-money issuer certificate | The whole chapter except ELM 1.5 | |
| 2 (Initial and continuing own funds requirements) | An ELMI that is not a lead regulated firm | The whole chapter |
| 3 (Management of the e-money float) | An ELMI that is not a lead regulated firm | The whole chapter |
| 4 (Limitations on activities) | An ELMI | The whole chapter |
| An e-money firm that is not an ELMI | The whole chapter except ELM 4.3 | |
| 5 (Systems and controls; Rules for making calculations) | An ELMI | The whole chapter |
| An e-money firm that is not an ELMI | ELM 5.1, ELM 5.2 and ELM 5.4 | |
| 6 (Redemption, information requirements and purse limits) | An e-money firm | The whole chapter |
| 7 (Consolidated financial supervision) | An ELMI that is a member of a group and is not a lead regulated firm | The whole chapter |
| 8 (Small e-money issuers) | An applicant for a small e-money issuer certificate and a small e-money issuer | The whole chapter |
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Incoming EEA firms and incoming Treaty firms
ELM 1.1.3
See Notes
- (1) ELM 1 applies to an e-money firm that is:
- (a) an incoming EEA firm; or
- (b) an incoming Treaty firm;
- if it has not established a branch in the United Kingdom. Otherwise ELM does not apply to such firms.
- (2) ELM 1 and ELM 6 apply to an e-money firm that is:
- (a) an incoming EEA firm; or
- (b) an incoming Treaty firm;
- if it has established a branch in the United Kingdom. Otherwise ELM does not apply to such firms.
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Firms established outside the EEA
ELM 1.1.4
See Notes
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Distance marketing activities
ELM 1.1.5
See Notes
- (1) ELM 1.4A sets out certain minimum requirements under the Distance Marketing Directive in respect of a customer's cancellation rights. These rules are supplemented by the requirements in COB 6.7.47 R (Exercising the right to cancel); COB 6.7.47 R (Cancellation notices served out of time) and to (Effects of cancellation) which all apply to e-money firms.
- (2) As set out in, COB 6.4.25R 'issuing deposits'
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ELM 1.2
Contents and purpose
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ELM 1.2.1
See Notes
This chapter sets out which parts of ELM apply to which persons. It also explains
that the regulated activity of issuing e-money is restricted
to banks, building societies and ELMIs. It also sets out
which parts of the rest of the Handbook apply
to ELMIs.
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ELM 1.2.2
See Notes
Chapter 2 sets out rules and guidance on the capital adequacy of ELMIs. Chapter 3 sets
out rules and guidance on the investment
of the e-money float in
high quality liquid assets. It also restricts the use by ELMIs of derivatives and quasi-derivative contracts. Chapter 4 sets
out rules and guidance that restrict
the business of ELMIs to
activities closely related to issuing
e-money. It also prohibits issuing
e-money at a discount. Chapter 5 has rules and guidance on systems and controls and rules relevant to making
calculations under the ELM
financial rules. Chapter 6 has rules and guidance on redemption of e-money, the supply of information and purse
limits. Chapter 7 has rules and guidance about the measure
of capital adequacy by reference to an ELMI's membership
of a group.
Chapter 8 contains provisions relevant to small e-money issuers and applications for
a small e-money issuer
certificate.
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ELM 1.2.3
See Notes
ELM implements
the parts of the E-Money
Directive and (for ELMIs)
the Banking Consolidation
Directive dealing with these topics.
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ELM 1.2.4
See Notes
The rules and guidance in ELM will help the FSA to meet the regulatory objectives of
protecting consumers and maintaining market
confidence. They do so by setting
standards about the backing of e-money issued
by an ELMI with
high quality liquid assets. They also do so by setting minimum capital and
other risk management standards. This mitigates the risk that ELMIs will be unable to
meet their liabilities and commitments to consumers. ELM also protects consumers by regulating the relationship
between issuers of e-money and
those who hold their e-money.
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ELM 1.2.5
See Notes
The requirements for ELMIs are intended to take account of the following principles, which are based on the recitals to the E-Money Directive.
- (1) It is desirable to provide a regulatory framework that helps to ensure that e-money delivers its full potential benefits and that avoids hampering technological innovation. Therefore the regime provides a "technology neutral" regulatory framework.
- (2) In order to respond to the specific risks associated with e-money, the supervisory regime is targeted specifically at issues relating to issuing e-money. As a result, parts of the prudential supervisory regime applying to banks do not apply to ELMIs.
- (3) It is necessary to preserve a level playing field between ELMIs and banks and building societies issuing e-money and, thus, to ensure fair competition among a wider range of institutions to the benefit of holders of e-money. To assist in achieving this, the removal of some features of the prudential supervisory regime applying to banks and building societies is balanced by rules that are stricter than those applying to banks and building societies. The main example of these stricter requirements is the limits on the business activities that ELMIs may carry on and the requirements about asset-liability management of the e-money float. As the main prudential measures that apply to ELMIs are targeted specifically at the issue of e-money, it is necessary to restrict the business of ELMIs to that activity.
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ELM 1.3
Restriction on issuing e-money
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ELM 1.3.1
See Notes
Article 1(4) of the E-Money Directive says that Member States
shall prohibit persons or undertakings that are not credit institutions from
carrying on the business of issuing electronic money. The purpose is to ensure
that only persons who
are subject to a prudential regime designed to deal with the risks of issuing e-money engage
in that activity.
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ELM 1.3.2
See Notes
For persons who
are not firms,
this is implemented by the general
prohibition. For firms,
this is achieved by the rules in ELM. The definition of ELMI covers any firm whose permitted activities include issuing e-money. Only
a bank, building society, incoming Treaty firm and incoming EEA firm are
excluded. If a firm falls
into the definition of an ELMI,
all the rules in ELM about ELMIs apply. These include ELM
4.3.1 R (Restriction on activities), which prevents
an ELMI from
doing anything except issuing
e-money and certain related activities. Therefore if a firm (other than a building society) wishes
to have a Part IV permission that
includes issuing e-money,
it will either have to become an ELMI,
and accept the restrictions that come with that status, or become a bank.
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ELM 1.3.3
See Notes
However, article 8 of the E-Money Directive says
that EEA States may
allow their competent authorities to waive the application of some or all
of the provisions of that Directive and the application of the Banking Consolidation Directive to
certain small or local e-money schemes.
The regime for such schemes is described in ELM 8. Even though a small e-money issuer does
not have a Part IV permission that
includes issuing e-money,
it does not infringe the general
prohibition by issuing e-money.
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ELM 1.4
Meaning of e-money and application of financial promotion
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ELM 1.4.1
See Notes
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ELM 1.4A
Distance contracts: cancellation
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Right to cancel
ELM 1.4A.1
See Notes
A retail customer has a right to cancel a distance contract the making or performance of which by the firm constitutes, or is part of, issuing e-money unless:
- (1) the performance of the distance contract has been fully completed by both parties at the customer's express request before the customer exercises his right to cancel; or
- (2) the firm has an initial service agreement with the customer and the contract is in relation to a successive operation or separate operation of the same nature under that agreement (see COB 1.11.3 R
- 09/10/2004
Cancellation period
ELM 1.4A.2
See Notes
The right to cancel referred to in ELM 1.4A.1 R starts on the later of:
- (1) the day of the conclusion of the contract; and
- (2) the day on which the retail customer receives the contractual terms and conditions and other information required by ELM 6.8 (Information); and lasts for 14 calendar days.
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Failure to give information on cancellation rights
ELM 1.4A.3
See Notes
If a firm does not give a retail customer notice of his cancellation rights in accordance with ELM 6.8.2A R and COB 6.4.25R, the contract remains cancellable and the retail customer can cancel the agreement at any time.
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Exercising the right to cancel
ELM 1.4A.4
See Notes
A retail customer may, without giving any reason, cancel the contract by serving notice upon the firm, before expiry of the relevant cancellation period, in accordance with the instructions for exercising that right provided to the customer in accordance with ELM 6.8.2A R and COB 6.4.25R.
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ELM 1.4A.5
See Notes
The following rules also apply as if issuing e-money were accepting deposits: COB 6.7.47R
(Record keeping); COB 6.7.48R (Cancellation notices served
out of time) and COB 6.7.51R to COB 6.7.53R
(Effects of cancellation).
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ELM 1.5
Application of other parts of the Handbook to ELMIs
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ELM 1.5.1
See Notes
The application of other parts of the
rest of the Handbook to ELMIs is summarised in ELM
1.5.2 G. For the detailed application
of each chapter, see the Application provision at the start of the chapter
or section. ELM
1.5.2 G does
not apply to an incoming
EEA firm, incoming
Treaty firm or small
e-money issuer.
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ELM 1.6
Actions for damages
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ELM 1.6.1
See Notes
A contravention of the rules in ELM does not give rise to a right of action
by a private person under
section 150 of the Act (and
each of those rules is
specified under section 150(2) of the Act as
a provision giving rise to no such right of action) unless ELM
1.6.2 R applies.
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ELM 1.6.2
See Notes
ELM
1.6.1 R does
not apply to the rules in ELM 6 (Redemption, information requirements and purse limits)
or ELM 8 (Small e-money issuers).
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