Financial Services
(Money Service Business (Exemptions)) (Jersey) Order 2007
THE MINISTER
FOR ECONOMIC DEVELOPMENT, in pursuance of Articles 4(1), 7(2)(a)(ii) and 42 of the Financial Services (Jersey) Law 1998 and on the recommendation of the Jersey
Financial Services Commission, orders as follows –
Commencement [see endnotes]
1 Interpretation
In this Order, unless the context otherwise
requires –
“1991 Law” means the Companies (Jersey) Law 1991;
“financial period”, in relation to money service
business carried on by a person, means the period, for which a profit and loss
account is prepared for the person, that –
(a) is of
not more than 18 months;
(b) begins –
(i) if a profit and
loss account has previously been prepared for the person carrying on money
service business (whether exclusively or in conjunction with other activities),
at the end of the period to which the most recent profit and loss account
applies, or
(ii) if
a profit and loss account has not previously been prepared for the person
carrying on money service business (whether exclusively or in conjunction with
other activities), on the day the person began carrying on the business
(whether the business is money service business, other activities that do not
include money service business or money service business in conjunction with
such other activities); and
(c) ends
on the date specified in the profit and loss account;
“last completed financial period”, in relation to a
person who carries on money service business (whether exclusively or in
conjunction with other activities), means the financial period, of not more
than 18 months, for which the most recent profit and loss account was
prepared for the person;
“Law” means the Financial Services (Jersey) Law 1998;
“profit and loss account” shall be construed in
accordance with Article 7;
“public company” has the meaning assigned by the 1991
Law;
“turnover” has the meaning assigned by Article 2.
2 Meaning
of “turnover”
(1) For the purposes of this
Order, “turnover”, in relation to money service business carried on
by a person, means the cumulative total, during a financial period, of all or
any of the following –
(a) foreign
currency that is, in the course of the person carrying on the business of a
bureau de change, bought from, or sold to, customers of the bureau de change;
(b) funds
transmitted or received by the person in the course of carrying on the business
of transmitting or receiving funds by wire or other electronic means, or money
transmission services;
(c) cheques
cashed by the person in the course of carrying on the business of providing
cheque cashing services,
measured in sterling in accordance with generally accepted
accounting principles.
(2) For the purposes of
this Order, “turnover”, in relation to money service business
carried on by a person, shall not include any amount forming part of money
service business, specified in Article 3, that is carried on by the person.
(3) For the purposes of
this Order, a calculation of the turnover in relation to a bureau de change
shall only include, in relation to a transaction, the amount of money bought
from a customer, or the amount of money sold to a customer, of the bureau de
change, but not both.
3 Exemption
for certain bureaux de change and personal money service business
(1) A person who carries on
money service business consisting of an exchange in which –
(a) payment
for goods or services is made in cash (including by travellers’ cheque);
and
(b) the
change due in respect of that payment –
(i) is tendered in a
different currency to the currency in which that payment is made, and
(ii) is
tendered by the person to whom that payment is made,
is a prescribed person for the purposes of Article 7(2)(a)(ii)
of the Law in relation to that money service business.
(2) A person who carries on
money service business consisting of the transmission or receipt of funds by
wire or other electronic means, or the provision of money transmission
services, by the person for the sole purpose of any of the following –
(a) enabling
another person to pay for goods or services;
(b) enabling
another person to access that other person’s funds or that other
person’s money,
is a prescribed person for the purposes of Article 7(2)(a)(ii)
of the Law in relation to that money service business.
(3) A person who carries on
money service business consisting of the cashing of a cheque drawn by a second
person on a bank account of the second person is a prescribed person for the purposes
of Article 7(2)(a)(ii) of the Law in relation to that money service
business.
4 Limited
exemption if turnover less than specified amount
(1) A person who carries on
money service business is an exempt person for the purposes of Article 6
if –
(a) that
person notifies the Commission in writing that he or she intends to carry on
money service business to which this paragraph applies; and
(b) the
turnover for the last completed financial period for the money service business
carried on by that person is less than £300,000.
(2) For the purposes of paragraph (1)(b),
after a person first begins to carry on money service business, the turnover
for that business shall be taken to be less than £300,000 –
(a) until
the end of the first 18 months after the person begins to carry on
the business; or
(b) until
the date when the turnover in respect of the business for the last completed
financial period is ascertained,
whichever is earlier.
(3) If –
(a) a
person was an exempt person for the purposes of Article 6 by virtue of paragraph (1);
and
(b) the
turnover of the person for the last completed financial period which begins
within, or immediately follows, the period for which the person was an exempt
person by virtue of paragraph (1), is more than £300,000,
the person shall be, by virtue of this paragraph, an exempt person
for the purposes of Article 6 until –
(i) 10 months
after the end of that person’s last completed financial period for which
the turnover is £300,000 or more; or
(ii) if
the person is a public company, 7 months after the end of the last
completed financial period for which the turnover is £300,000 or more.
(4) A person who is
registered to carry on money service business may, by notice in writing to the
Commission, request the Commission to revoke, under Article 9(4)(a) of the
Law, his or her registration to carry on money service business, for the
purpose of enabling the person to become, by virtue of paragraph (1), an
exempt person for the purposes of Article 6.
(5) If the Commission,
after receiving a notice under paragraph (4), revokes under Article 9(4)(a)
of the Law the registration of a person to carry on money service business in
accordance with the request contained in the notice, the notice shall be taken
to be a notice given by the person under paragraph (1)(a).
(6) A person shall, within
3 months of the day on which he or she ceases to carry on money service
business specified in a notice given by the person to the Commission under
paragraph (1)(a), notify the Commission of ceasing to carry on the
business.
(7) A person who has
notified the Commission under paragraph (1)(a) shall notify the Commission
within 3 months of deciding not to commence the money service business to
which the notice relates.
5 Limited
exemption for persons regulated under Banking Business Law
(1) A person who carries on
money service business is an exempt person for the purposes of Article 6
if he or she –
(a) notifies
the Commission in writing that he or she intends to carry on money service
business; and
(b) is
registered under the Banking Business (Jersey) Law 1991.
(2) A person who, after he
or she is registered to carry on money service business, becomes registered
under the Banking Business (Jersey) Law 1991, may, by notice in writing
to the Commission, request the Commission to revoke, under Article 9(4)(a)
of the Financial Services (Jersey)
Law 1998, his or her registration to carry on money service business, for
the purpose of enabling the person to become, by virtue of paragraph (1),
an exempt person for the purposes of Article 6.
(3) If the Commission,
after receiving a notice under paragraph (2), revokes under Article 9(4)(a)
of the Law the registration of a person to carry on money service business in
accordance with the request contained in the notice, the notice shall be taken
to be notice given by the person under paragraph (1)(a).
(4) A person who has
notified the Commission under paragraph (1)(a) shall notify the Commission
within 3 months of the day on which he or she ceases to carry on money
service business to which the notice relates.
(5) A person who has
notified the Commission under paragraph (1)(a) shall notify the Commission
within 3 months of deciding not to commence the money service business to
which the notice relates.
6 Variation
of, further conditions for, and restrictions on, exemptions under Articles 4
and 5
(1) A person who is an
exempt person for the purposes of this Article is a prescribed person for the
purposes of Article 7(2)(a)(ii) of the Law.
(2) In accordance with Article 4(1)
of the Law, the exemption conferred by Article 7(2)(a)(ii) of the Law is
amended in relation to persons referred to in paragraph (1) so that it is
limited to Article 7 of the Law.
(3) For the purposes of
Article 7(2)(a)(ii) of the Law, Articles 12, 23, 24, 25, 26, 28, 32,
33, 34, 35, 36, 37, 38, 39 and 41 of the Law shall apply to and in relation to
a person exempted from registration by virtue of paragraph (2), as if the
person were a registered person.
7 Profit
and loss account
(1) For the purposes of a
financial period to which Article 4 refers, a profit and loss account
means –
(a) in
the case of –
(i) a person who
carries on money service business exclusively and in respect of whom accounts
are prepared in accordance with Article 104(1) of the 1991 Law –
a profit and loss account in respect of which Article 104 of that Law has
been complied with, or
(ii) any
other person who carries on money service business exclusively – an
account that complies with paragraph (2) that is prepared in respect of
that person;
(b) in
the case of a person who carries on money service business in conjunction with
other activities and in respect of whom –
(i) accounts are
prepared pursuant to Article 104(1) of the 1991 Law –
a profit and loss account in respect of which Article 104 of that Law has
been complied with, or
(ii) such
accounts have not been prepared – an account that complies with
paragraph (2) that is prepared for that person; or
(c) in
the case of –
(i) a person who at
any time during a financial period carried on money service business
exclusively but who was, at the end of that financial period, carrying on money
service business in conjunction with other activities – an account
prepared in accordance with sub-paragraph (b)(i) or (ii), or
(ii) a
person who at any time during a financial period carried on money service
business in conjunction with other activities but who was, at the end of that
financial period, carrying on money service business exclusively –
an account prepared in accordance with sub-paragraph (a)(i) or (ii).
(2) For the purposes of paragraph (1)(a)(ii)
and (b)(ii), an account to which those clauses refer shall be –
(a) an
account that is prepared for a period –
(i) of not more than 18
months,
(ii) that
begins –
(A) if an
account has previously been prepared for the person carrying on money service
business (whether exclusively or in conjunction with other activities) –
at the end of the period to which the most recent account applies, or
(B) if an
account has not previously been prepared for the person carrying on money
service business (whether exclusively or in conjunction with other activities) –
on the day that person commenced carrying on the business (whether the business
is money service business, other activities that do not include money service
business or money service business in conjunction with such other activities),
and
(iii) that
ends on the date specified in the account;
(b) prepared
in accordance with generally accepted accounting principles and show a true and
fair view of the profit or loss in respect of the person carrying on money
service business concerned for the financial period concerned;
(c) accompanied
by a notice in writing by the person carrying on the money service business
stating that the person approves the account; and
(d) prepared
and approved in accordance with this paragraph within 10 months after the
end of the financial period concerned.
(3) Paragraph (2)(a)
shall not be construed as requiring a person who –
(a) carried
on money service business before this Order came into force; and
(b) had
not prepared an account that complies with paragraph (2) for a period
ending within 12 months before the date on which this Order comes into
force,
to prepare an account that complies with paragraph (2) for a
period beginning earlier than that date.
(4) This paragraph applies
to a person carrying on money service business –
(a) in
conjunction with other activities; and
(b) for
whom an account has been prepared in respect of that person in accordance with paragraph (1)(b)(i)
or (1)(b)(ii).
(5) A person –
(a) to
whom paragraph (4) applies; and
(b) who
proposes, for the purposes of Article 4, to rely on an account referred to
in paragraph (4) to determine the part of the general turnover of the
business that relates to the turnover for money service business,
may use that account to determine the part of the person’s
general turnover that relates to the turnover for money service business, if
the information supporting the turnover for money service business is stated in
a manner that identifies the turnover for money service business and its
cumulative total.
(6) In paragraph (5),
“general turnover” means the turnover of all the business carried
on by the person referred to in that paragraph that reflects all the activities
referred to in paragraph (4)(a), and includes turnover for money service
business.
8 Transitional
provisions where exemption ceases and registration not sought
(1) This paragraph applies
to a person if –
(a) he or
she was, by virtue of Article 4(3) or 5(1), an exempt person for the
purposes of Article 6;
(b) Article 4(3)
or 5(1) has ceased to apply to the person; and
(c) he or
she is not a person to whom Article 9(1) applies.
(2) A person to whom
paragraph (1) applies shall not be taken to have committed an offence
under Article 7(4) of the Law by virtue of any action that is taken, or
not taken, by the person in the course of carrying on money service business
during the relevant period.
(3) For the purposes of
this Article, the relevant period is the period on and from the day on which
Article 4(3) or 5(1) ceases to apply to the person until 6 months
after that day.
(4) Articles 12, 23,
24, 25, 26, 28, 32, 33, 34, 35, 36, 37, 38, 39 and 41 of the Law shall, in
respect of the relevant period, apply (with the necessary modifications) to a
person to whom paragraph (1) applies, as those Articles apply to a person
registered under the Law to carry on money service business.
(5) Without prejudice to
the generality of paragraph (4), a reference, in any of the Articles
specified in that paragraph, to the period during which a person is registered
shall be taken to be a reference to the relevant period.
9 Transitional
provisions where exemption ceases and person applies for registration to carry
on money service business
(1) This paragraph applies
to a person if –
(a) he or
she was, by virtue of Article 4(3) or 5(1), an exempt person for the
purposes of Article 6;
(b) Article 4(3)
or 5(1) has ceased to apply to the person; and
(c) he or
she applies, within one month of the day on which Article 4(3) or 5(1)
ceases to apply to the person, to be registered under the Law as a person
entitled to carry on money service business.
(2) A person to whom
paragraph (1) applies shall not be taken to have committed an offence under
Article 7(4) of the Law by virtue of any action that is taken, or not
taken, by the person in the course of carrying on money service business during
the relevant period.
(3) For the purposes of
paragraph (2), the relevant period in relation to a person is the period
on and from the day on which Article 4(3) or 5(1) ceases to apply to the
person until the day the application referred to in paragraph (1)(c) is
finally determined (including as a result of an appeal to the Court under Article 11
of the Law) or is withdrawn.
(4) Articles 12, 23,
24, 25, 26, 28, 32, 33, 34, 35, 36, 37, 38, 39 and 41 of the Law shall, in
respect of the relevant period, apply (with the necessary modifications) to a
person to whom paragraph (1) applies, as those Articles apply to a person
registered under the Law to carry on money service business.
(5) Without prejudice to
the generality of paragraph (4), the following modifications shall apply
in relation to a person to whom paragraph (1) applies –
(a) a
reference, in any of the Articles referred to in paragraph (4), to the
period during which a person is registered shall be taken to be a reference to
the period between –
(i) the date of the
application, and
(ii) the
date on which the application is granted or refused by the Commission, is
finally determined (including as a result of an appeal to the Court under
Article 11 of the Law) or is withdrawn;
(b) a
reference, in any of the Articles referred to in paragraph (4), to the
terms of a registration shall be taken to be a reference to the terms of the
application; and
(c) a
reference in Article 11 of the Law to the Commission, acting under Article 9
of the Law, revoking a registration shall be taken as a reference to the
Commission refusing an application under Article 9 of the Law.
10 Citation
This Order may be cited as the Financial Services (Money Service
Business (Exemptions)) (Jersey) Order 2007.