Use of Agents; Authorisation to Issue Statutory Instruments

(1) Where an institution intends to provide payment services through an agent, it must transmit the following particulars to BaFin and to the Deutsche Bundesbank:
1. the name and address of the agent;
2. a description of the internal control mechanisms which the agent applies to comply with the requirements of the Anti-Money Laundering Act; this must be updated without delay in the event of material changes to the particulars previously transmitted;
3. the names of the managers and of the persons responsible for the management of an agent to be used for the provision of payment services and, in the case of agents that are not payment service providers, evidence that they are reliable and professionally suitable;
4. the payment services of the payment institution with which the agent is entrusted;
5. where applicable, the agent's identification code or reference number. BaFin informs the institution within two months of complete transmission of the particulars under the first sentence whether the agent is to be entered in the Payment Institution Register. The agent may not begin providing payment services before being entered in the Payment Institution Register. Where circumstances notified under the first sentence change, the institution must notify BaFin and the Deutsche Bundesbank of these changes in writing or electronically without delay; the second and third sentences apply correspondingly.
(2) The institution must ensure that the agent is reliable and professionally suitable, complies with the legal requirements in providing the payment services, informs the payment service user of its status before or when the business relationship is entered into, and informs the user without delay of the termination of that status. The institution must retain, for at least five years after the end of the agent's status, the evidence necessary to demonstrate compliance with its obligations under the first sentence.
(3) BaFin may prohibit an institution that has not properly carried out the selection or monitoring of its agents from engaging agents within the meaning of subsections (1) and (2). The prohibition may relate to the execution of payment services by individual agents, or to the engagement of agents as a whole.
(4) Where an institution intends to provide payment services in another Member State, or another state party to the Agreement on the European Economic Area, by engaging an agent there, it must follow the procedure under section 38(1).
(5) The Federal Ministry of Finance is authorised to issue, by statutory instrument not requiring the consent of the Bundesrat, in agreement with the Deutsche Bundesbank, more detailed provisions on the type, scope and form of the evidence under subsection (2), second sentence, insofar as this is necessary for BaFin to perform its tasks. The Federal Ministry of Finance may transfer the authorisation, by statutory instrument, to BaFin, on condition that the statutory instrument is issued in agreement with the Deutsche Bundesbank. The leading associations of the institutions must be heard before the statutory instrument is issued.