For next week, the voting in particular in the Senate room of the Fintech Law was scheduled, an initiative that seeks to regulate and incorporate a series of industry actors within the framework of the activity of the Commission for the Financial Market, as well as to regulate the operation of the Agency. entities already operating in the country.
One of the main aspects of the project is to regulate the open financial system, which allows financial entities to deliver the information authorized by their clients to other institutions, which will make the recipients able to compete. offer better conditions, services that allow people to improve their personal finances, and help SMEs in their financial, cash, tax management, among others.
Commissioned by the Financial Retail, an association that brings together non-bank credit card issuers, the doctor in economics Luis Maldonado, who is also an international consultant on financial regulation, especially in the field of fintech and open financehe prepared a report in which he addressed various aspects of the bill under discussion.
In his report, Maldonado says that “the Fintech Law Project is well motivated and a legal body of technical quality, which Regulation delegates numerous aspects in future regulations”, which “could generate uncertainty in the market actors until the various aspects provided for in the standard are specified”.
Similarly, he points out that “it may be desirable for the Law to limit some of the critical aspects in accordance with the best international practices.”
In addition, the report shows that “by establishing a new regulatory framework for Fintech, the Chilean legislator seems to be betting on the relaxation of the demands and requirements regarding the access to the market of new actors from the digital field, for in order to promote. competition. The Fintech Bill delegates broad powers to the CMF to regulate through subsequent regulatory development. It might be convenient to limit some of the most important aspects of the Law, and in any case, to ensure that there is no distortion of competition in its development to the detriment of traditional providers, and that the principles of neutrality are fully respected . and proportionality”.
Along with this, he considers that “It is also necessary to establish a governance framework for the open financial system in Chile that takes into account all the actors that fall within its scope. jurisdictional aspects which may be affected by the exchange of personal data, and the establishment of a stable mechanism for dialogue and consultation with the industry represented through its associations (banking association, retail finance association and Fintech)“.
The issue of data protection is one of the main aspects of the project. For this reason, Maldonado’s study states that “although it is not in the original mandate of the CMF to ensure the protection of personal data, ie The Fintech Law Project brings certain competencies to the subject. Therefore, it would be necessary in the future to guarantee consistency and avoid possible crossing points between the CMF, the National Consumer Service (“SERNAC”) – for which the Consumer Protection Law is an art. 15 bis recognizes competences in relation to the protection of consumer data, and the future Data Protection Agency, whose Personal Data Bill recognizes broad competences”.
The expert argues that the development of an open banking framework must start from a context where there are maximum guarantees regarding the processing of personal data. Therefore, progress should be made on the personal data bill, before an open financial framework is implemented. On the contrary, An open financial framework imposing access to the personal data of clients in financial entities would have a relevant institutional deficiency in ensuring the protection of a fundamental right recognized at the constitutional level.
For the expert, the development of an open banking framework must start from a context where there are maximum guarantees regarding the processing of personal data. Therefore, progress should be made on the personal data bill, before an open financial framework is implemented. pBut as long as that protection does not exist, it would be advisable to limit the information to be exchanged, which prevents access to personal data.
Next, regarding the scope of the data that is accessible, Maldonado suggests that it is defined how the principle of proportionality restricts access to the data that is absolutely necessary to provide the financial service, without leaving the question open for development in the future, and not to rely heavily on. consent as a general enabling mechanism. “Consent cannot give a letter of a general nature to the non-discriminatory use of data, even more so when the bill itself shows from the beginning the principle of proportionality as one of the most important motivating principles of this regulation,” says the report.
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