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EBA Report Summary on FinTech Regulatory Perimeter and Authorisation Approaches

Core Content

This EBA Report, published on 18 July 2019, provides an analysis of the regulatory perimeter and authorisation approaches for FinTech firms within the EU, based on data collected from 27 competent authorities (CAs) and the ECB. The report focuses on three main areas: (a) monitoring the regulatory perimeter for FinTech activities, (b) assessing the regulatory status of FinTech firms, and (c) evaluating the application of the principles of proportionality and flexibility in authorisation processes under EU directives such as CRD IV, PSD2, and EMD2.

Main Points

1. Regulatory Perimeter

• Monitoring Activities: The EBA conducted a monitoring exercise from 1 September 2017 to 22 March 2019, examining how national legislations affect the regulatory perimeter of CAs.
• National Legislative Activity: Very little national legislative activity was observed affecting the regulatory perimeter of CAs during the monitoring period.
• Changes in Regulatory Scope: The transposition of PSD2 extended its scope to include payment initiation services and account information services, impacting the regulatory status of some FinTech firms.
• Regulatory Sandboxes: 21 Member States and 3 EEA CAs have established innovation hubs or regulatory sandboxes, which help authorities monitor innovations and identify regulatory issues early.

2. Regulatory Status of FinTech Firms

• Regulated Firms: A small percentage of FinTech firms are subject to authorisation or registration under national law, with most remaining unregulated.
• Regulated Activities:
  • Authorisation: 5% of FinTech firms are under national authorisation, offering services such as crowdfunding, consumer credit, and financial intermediation.
  • Registration: 9% of FinTech firms are under national registration, engaging in similar activities including peer-to-peer lending and portfolio management.
• Unregulated Firms: 31% of FinTech firms are not subject to any regulatory regime, primarily providing technical or support services that are not core financial activities.

3. Authorisation Approaches and Proportionality

• Proportionality Principle: CAs generally apply the principle of proportionality in authorisation and licensing, considering the nature, scale, and complexity of services.
• PSD2 Flexibility: PSD2 includes provisions for proportionality, such as:
  • A national option for smaller payment institutions under Article 32.
  • Exemptions for account information services offering only that service.
  • Different capital requirements based on the services provided.
• Supervisory Practices: CAs apply proportionality based on a risk-based approach, taking into account the organisational structure, size, and number of employees of the institution.
• Conditions and Restrictions: Some CAs impose conditions, limitations, or restrictions on authorisation, such as requirements to amend legal structures or limit deposit-taking activities.

Key Findings

• Regulatory Perimeter Stability: The regulatory perimeter for FinTech activities has remained largely stable across the EU, with minimal changes in national legislation.
• Regulatory Divergence: Differences in regulatory treatment across Member States may lead to market fragmentation and regulatory arbitrage, especially in areas like crowdfunding and crypto-assets.
• Need for Harmonisation: The EBA acknowledges the need for a harmonised EU regime to address regulatory arbitrage and ensure a level playing field, particularly for cross-border crowdfunding and crypto-assets.
• Ongoing Work: The EBA is continuing its monitoring of the application of proportionality and will assess whether it is used to fast-track authorisation for FinTech firms.
• Future Steps: The EBA may develop guidelines under the amended CRD IV to standardise authorisation approaches and ensure consistency across the EU.

Next Steps

• The EBA will continue its monitoring activities to assess the impact of FinTech innovations on the regulatory perimeter and authorisation processes.
• The EBA is also considering the development of guidelines to standardise the application of proportionality and flexibility in the context of FinTech authorisation.
• The European Commission is working on a crowdfunding regulation proposal, and the EBA is following this closely.
• The EBA is involved in discussions regarding a harmonised EU regime for crypto-assets and crowdfunding to ensure uniform consumer protection and AML/CFT rules.

Conclusion

The EBA has concluded that the current regulatory perimeter for FinTech activities is largely stable, and that proportionality and flexibility are generally applied consistently across the EU. However, the report highlights the need for further harmonisation to address regulatory arbitrage and ensure a level playing field, particularly in the areas of crowdfunding and crypto-assets. The EBA will continue to monitor these developments and may issue further guidance as needed.