The E-Money Directive has failed to help establish a market for virtual currency and will be replaced with a set of less onerous regulations. The replacement E-Money Directive will come into force at the end of this month.
The European Council and European Parliament published the replacement Directive in the Official Journal of the European Union on 10th October. It will come into force 20 days after publication and must be transposed into national law by the EU's 27 member states by the end of April 2011.
The Council said that it hoped that the new Directive would address the failures of the old one.
"Its adoption follows an assessment by the Commission of [the old Directive] which shows that electronic money is still far from delivering the benefits that were expected when that directive was adopted eight years ago," said the Council when it announced the new law earlier this year. "The number of newcomers to the market has been relatively low, and in most member states e-money is not yet considered a credible alternative to cash."
Jacob Ghanty, an expert in finance law at Pinsent Masons, the law firm behind OUT-LAW.COM, said that the new version of the Directive lowers some of the barriers preventing companies from offering e-money services.
"There was some criticism of the prudential regime of the Directive, which means the amount of money you have to hold to offer services," he said. "People who looked at it realised that to be an issuer you were required to hold a lot of capital, which was quite onerous."
"That will now dropped from €1 million to €125,000, which is a big dip," said Ghanty.
He said that it will align the requirements relating to e-money to the requirements that payment institutions will have to meet under the Payment Services Directive, which comes into force on 1st November. "It will align it with the Payment Services Directive requirements, which is sensible because they are related concepts."
Ghanty said that the new E-money Directive also clears up some confusion about what e-money actually is. "There were criticisms that under the old Directive the definition of what e-money is was broad and vague, and that that made it difficult to determine what was and was not e-money," he said.
"The new one actually simplifies the definition which makes it clearer and also makes it more capable of coping with technology advances in the future," he said.
The old definition of e-money employed by the EU law actually excluded many kinds of services that service providers might have thought did count as e-money.
"Quite often a client would ask 'does it amount to e-money under the Directive' and we were able to conclude more often than not that it didn't amount to e-money, and this was not the intention of the Directive," said Ghanty. "I think the new definition will clearly capture the things the Directive was intended to catch."