Licence za opravljanje »FinTech« dejavnosti
Večina tehnoloških podjetij s področja finančne tehnologije vsaj v določenem delu poslovnega modela posega v področje, ki je regulirano s sistemsko zakonodajo. Največkrat gre za področje preprečevanja pranja denarja. Pogosto tudi za področje izvajanja plačilnih storitev in izdajanja elektronskega denarja. V nekaterih primerih gre za poslovne modele, ki se v določenem delu navezujejo na regulirane finančne instrumente. Vse to pomeni, da so taka podjetja zavezana k spoštovanju zakonskih določb. V primeru kršenja teh določb so podjetja izpostavljena tveganju skladnosti (i. e. sankcijam regulatorjev).
V določenih državah so za opravljanje posameznih dejavnosti v zvezi s finančnimi storitvami potrebne licence (dovoljenja) za opravljanje teh dejavnosti oziroma je zahtevana predhodna priglasitev dejavnosti pri pristojnem regulatorju. Države, ki poznajo tako ureditev so na primer Malta, Estonija in Gibraltar. Navadno pridobitev take licence ne zahteva kompleksnega in dragega postopka. Poudariti je potrebno, da so take licence le lokalne in da ne omogočajo čezmejnega (»cross-border«) poslovanja, kar v praksi pomeni, da pridobitev licence v eni evropski državi ne pomeni, da se ta storitev lahko opravlja tudi v drugi državi.
To pa ne velja za licence s t. i. evropskim potnim listom (»EU passport«). Za tovrstne licence velja, da ko jih enkrat odobri pristojni regulator v eni izmed držav EU, imetnik licence lahko opravlja storitve tudi v drugih državah EU. Potem ko se pridobi tako licenco, je potrebna le priglasitev posameznemu nacionalnemu regulatorju. Primer take licence je licenca za plačilno institucijo, licenca za izdajatelja elektronskega denarja (obe licenci po PSD2) in razne licence za opravljanje storitev v zvezi z finančnimi instrumenti (MiFID II). Postopek pridobivanja take licence je precej kompleksen, zamuden in drag. Še posebej to velja za licence po PSD2, ki se jim v praksi reče tudi lahke bančne licence (»light banking license«).
The financial industry has been developing rapidly in recent times. The biggest contributing factors for such a development are the various innovations in the field of payment systems, payment services, electronic money and transfer of funds. An equally important role in this process can be attributed to regulation, especially the new European Payment Services Directive (PSD2), which made the once insurmountable bank secrecy institute open to technological companies from the field of financial technology (“FinTech”), and the amended European Markets in Financial Instruments Directive and associated Regulation (MiFID II).
Technological companies operating in the field of financial technology are currently facing a rapid development of technology, constant change in regulation and consequently ever stricter demands for corporate compliance. Technological companies are simultaneously entering into increasingly complex legal relationships, which combine state of the art technology and legal norms. The digital transformation of financial, insurance and other industries is setting new standards of legal safety for companies.
Licenses to pursue "FinTech" activities
The majority of technological companies operating in the field of financial technology and their business models at least partially interfere with an area that is regulated by systemic legislature. This mostly relates to the field of prevention of money laundering and often to the field of payment methods and issuing of electronic money. In some cases, there are business models that partially relate to regulated financial instruments. As a result, companies are obliged to respect relevant legal provisions. In case of a breach of such provisions, said companies are subject to the risk of non-compliance (i.e. sanctions by the regulators).
In order to conduct particular activities related to financial services, certain licenses (permits) or previous reporting of the relevant activity to the competent regulator is required in certain countries. Such states include Malta, Estonia and Gibraltar. Acquiring these licenses usually does not require a complex and expensive procedure. It has to be emphasized that such licenses function as local licenses, which do not provide the option of cross-border business. In practice this means that acquiring a licence in one European country does not allow a company to provide this service in another country.
However, this is not the case for the licenses with a so-called EU passport. When a competent regulator approves such a licence in one of the EU member states, the holder of the licence can also provide services in other EU states. After acquiring such a licence, only a notification to a particular national regulator is required. An example of the discussed licence is the licence for the payment institution, licence for the electronic money issuer (both licenses from PSD2) and various licenses for provision of services related to financial instruments (MiFID II). The procedure to acquire such a licence is fairly complex, expensive and time-consuming. This is especially true for licenses under PSD2, which are also referred to as “light banking licences”.
Legal documentation for tech companies
When doing business, financial companies enter into various legal relationships with external developers, providers of software solutions and different consultants. These legal relationships need to be arranged with contracts and other legal documents, which lower diverse operational and legal risks for the company and make the business cooperation predictable and transparent.
Due to the intertwining of technology and law, special knowledge is often required in order to prepare the contracts, which can only be provided by legal experts who also understand technology. Examples of technological contracts include:
Software licence agreement
Product development agreement
Technology development agreement
Technology cooperation agreement
Research and development agreement
Escrow and custodial agreement for financial assets (e.g. in connection with smart contracts)
Software development agreement
Copyright assignment agreement
Software code IP agreement/waiver
Cloud services agreement
End-user licence agreement
Mobile application development agreement
Application distribution agreement
Platform licence agreement
In addition to contracts, technological companies require different legal opinions, drafts of non-binding agreements, assessments of legal risks, unilateral declarations and legal due diligence (see “due diligence” section) as part of their business operations. Only comprehensive and systematically regulated legal relationships with external developers, consultants and other product and service providers can ensure the company the appropriate level of legal certainty.
The field of “FinTech”, depending on the company’s business model, is partially or completely subjected to systematic regulation in the field of banking, insurance, payment services, personal data protection, taxes, financial instruments and prevention of money laundering. Similar rules apply to the field of “insuretech”.
With gradual development of a business model or its later implementation, it is advisable to establish an open and transparent communication with the regulators. In practice, this means that the business model is presented to the competent regulator, a discussion is held on questions of compliance and certain documents are submitted either for approval or to serve as informative purposes, respectively.
In some countries, “regulatory sandboxes” are also present, which are mainly earmarked for the “FinTech” companies. These are controlled environments that are established by a competent regulator which conducts continuous oversight, while technological companies develop new solutions. The companies need to fulfil certain conditions in order to join a “regulatory sandbox”. In the countries where a regulatory sandbox has not yet been established, an agreement with the regulator on an informal regulatory sandbox is possible: subject to permission by the regulator, services and products that would otherwise require a preliminary license can be tested within a highly limited extent and controlled environment.
Fintech Factory offers its clients
drafting contracts and other legal documentation related to tech projects
consultations on the correspondence with competent
consultations related to the process of obtaining PSD2 and MiFID II licences
assistance in the application process for entering regulatory sandboxes
assistance in building multidisciplinary teams of experts (developers, marketing / PR, tax consultants)