LegalizeDirective (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC (Text with EEA relevance)
If the payment initiation service provider is liable for the unauthorised payment transaction, it shall immediately compensate the account servicing payment service provider at its request for the losses incurred or sums paid as a result of the refund to the payer, including the amount of the unauthorised payment transaction. In accordance with Article 72(1), the burden shall be on the payment initiation service provider to prove that, within its sphere of competence, the payment transaction was authenticated, accurately recorded and not affected by a technical breakdown or other deficiency linked to the payment service of which it is in charge.
Further financial compensation may be determined in accordance with the law applicable to the contract concluded between the payer and the payment service provider or the contract concluded between the payer and the payment initiation service provider if applicable.
Article 74
Payer’s liability for unauthorised payment transactions
By way of derogation from Article 73, the payer may be obliged to bear the losses relating to any unauthorised payment transactions, up to a maximum of EUR 50, resulting from the use of a lost or stolen payment instrument or from the misappropriation of a payment instrument.
The first subparagraph shall not apply if:
- (a) the loss, theft or misappropriation of a payment instrument was not detectable to the payer prior to a payment, except where the payer has acted fraudulently; or
- (b) the loss was caused by acts or lack of action of an employee, agent or branch of a payment service provider or of an entity to which its activities were outsourced.
The payer shall bear all of the losses relating to any unauthorised payment transactions if they were incurred by the payer acting fraudulently or failing to fulfil one or more of the obligations set out in Article 69 with intent or gross negligence. In such cases, the maximum amount referred to in the first subparagraph shall not apply.
Where the payer has neither acted fraudulently nor intentionally failed to fulfil its obligations under Article 69, Member States may reduce the liability referred to in this paragraph, taking into account, in particular, the nature of the personalised security credentials and the specific circumstances under which the payment instrument was lost, stolen or misappropriated.
Where the payer’s payment service provider does not require strong customer authentication, the payer shall not bear any financial losses unless the payer has acted fraudulently. Where the payee or the payment service provider of the payee fails to accept strong customer authentication, it shall refund the financial damage caused to the payer’s payment service provider.
The payer shall not bear any financial consequences resulting from use of the lost, stolen or misappropriated payment instrument after notification in accordance with point (b) of Article 69(1), except where the payer has acted fraudulently.
If the payment service provider does not provide appropriate means for the notification at all times of a lost, stolen or misappropriated payment instrument, as required under point (c) of Article 70(1), the payer shall not be liable for the financial consequences resulting from use of that payment instrument, except where the payer has acted fraudulently.
Article 75
Payment transactions where the transaction amount is not known in advance
Where a payment transaction is initiated by or through the payee in the context of a card-based payment transaction and the exact amount is not known at the moment when the payer gives consent to execute the payment transaction, the payer’s payment service provider may block funds on the payer’s payment account only if the payer has given consent to the exact amount of the funds to be blocked.
The payer’s payment service provider shall release the funds blocked on the payer’s payment account under paragraph 1 without undue delay after receipt of the information about the exact amount of the payment transaction and at the latest immediately after receipt of the payment order.
Article 76
Refunds for payment transactions initiated by or through a payee
Member States shall ensure that a payer is entitled to a refund from the payment service provider of an authorised payment transaction which was initiated by or through a payee and which has already been executed, if both of the following conditions are met:
- (a) the authorisation did not specify the exact amount of the payment transaction when the authorisation was made;
- (b) the amount of the payment transaction exceeded the amount the payer could reasonably have expected taking into account the previous spending pattern, the conditions in the framework contract and relevant circumstances of the case.
At the payment service provider’s request, the payer shall bear the burden of proving such conditions are met.
The refund shall consist of the full amount of the executed payment transaction. The credit value date for the payer’s payment account shall be no later than the date the amount was debited.
Without prejudice to paragraph 3 of this Article, Member States shall ensure that, in addition to the right referred to in the first subparagraph of this paragraph, for direct debits as referred to in Article 1 of Regulation (EU) No 260/2012, the payer has an unconditional right to a refund within the time limits laid down in Article 77 of this Directive.
However, for the purposes of point (b) of the first subparagraph of paragraph 1, the payer shall not rely on currency exchange reasons if the reference exchange rate agreed with its payment service provider in accordance with point (d) of Article 45(1) and point (3)(b) of Article 52 was applied.
It may be agreed in a framework contract between the payer and the payment service provider that the payer has no right to a refund where:
- (a) the payer has given consent to execute the payment transaction directly to the payment service provider; and
- (b) where applicable, information on the future payment transaction was provided or made available in an agreed manner to the payer for at least 4 weeks before the due date by the payment service provider or by the payee.
For direct debits in currencies other than euro, Member States may require their payment service providers to offer more favourable refund rights in accordance with their direct debit schemes provided that they are more advantageous to the payer.
Article 77
Requests for refunds for payment transactions initiated by or through a payee
Member States shall ensure that the payer can request the refund referred to in Article 76 of an authorised payment transaction initiated by or through a payee for a period of 8 weeks from the date on which the funds were debited.
Within 10 business days of receiving a request for a refund, the payment service provider shall either refund the full amount of the payment transaction or provide a justification for refusing the refund and indicate the bodies to which the payer may refer the matter in accordance with Articles 99 to 102 if the payer does not accept the reasons provided.
The payment service provider’s right under the first subparagraph of this paragraph to refuse the refund shall not apply in the case set out in the fourth subparagraph of Article 76(1).
CHAPTER 3 Execution of payment transactions
Section 1 Payment orders and amounts transferred
Article 78
Receipt of payment orders
Member States shall ensure that the time of receipt is when the payment order is received by the payer’s payment service provider.
The payer’s account shall not be debited before receipt of the payment order. If the time of receipt is not on a business day for the payer’s payment service provider, the payment order shall be deemed to have been received on the following business day. The payment service provider may establish a cut-off time near the end of a business day beyond which any payment order received shall be deemed to have been received on the following business day.
If the payment service user initiating a payment order and the payment service provider agree that execution of the payment order shall start on a specific day or at the end of a certain period or on the day on which the payer has put funds at the payment service provider’s disposal, the time of receipt for the purposes of Article 83 is deemed to be the agreed day. If the agreed day is not a business day for the payment service provider, the payment order received shall be deemed to have been received on the following business day.
Article 79
Refusal of payment orders
Where the payment service provider refuses to execute a payment order or to initiate a payment transaction, the refusal and, if possible, the reasons for it and the procedure for correcting any factual mistakes that led to the refusal shall be notified to the payment service user, unless prohibited by other relevant Union or national law.
The payment service provider shall provide or make available the notification in an agreed manner at the earliest opportunity, and in any case, within the periods specified in Article 83.
The framework contract may include a condition that the payment service provider may charge a reasonable fee for such a refusal if the refusal is objectively justified.
Where all of the conditions set out in the payer’s framework contract are met, the payer’s account servicing payment service provider shall not refuse to execute an authorised payment order irrespective of whether the payment order is initiated by a payer, including through a payment initiation service provider, or by or through a payee, unless prohibited by other relevant Union or national law.
For the purposes of Articles 83 and 89 a payment order for which execution has been refused shall be deemed not to have been received.
Article 80
Irrevocability of a payment order
Member States shall ensure that the payment service user shall not revoke a payment order once it has been received by the payer’s payment service provider, unless otherwise specified in this Article.
Where the payment transaction is initiated by a payment initiation service provider or by or through the payee, the payer shall not revoke the payment order after giving consent to the payment initiation service provider to initiate the payment transaction or after giving consent to execute the payment transaction to the payee.
However, in the case of a direct debit and without prejudice to refund rights the payer may revoke the payment order at the latest by the end of the business day preceding the day agreed for debiting the funds.
In the case referred to in Article 78(2) the payment service user may revoke a payment order at the latest by the end of the business day preceding the agreed day.
After the time limits laid down in paragraphs 1 to 4, the payment order may be revoked only if agreed between the payment service user and the relevant payment service providers. In the case referred to in paragraphs 2 and 3, the payee’s agreement shall also be required. If agreed in the framework contract, the relevant payment service provider may charge for revocation.
Article 81
Amounts transferred and amounts received
Member States shall require the payment service provider(s) of the payer, the payment service provider(s) of the payee and any intermediaries of the payment service providers to transfer the full amount of the payment transaction and refrain from deducting charges from the amount transferred.
However, the payee and the payment service provider may agree that the relevant payment service provider deduct its charges from the amount transferred before crediting it to the payee. In such a case, the full amount of the payment transaction and charges shall be separated in the information given to the payee.
If any charges other than those referred to in paragraph 2 are deducted from the amount transferred, the payment service provider of the payer shall ensure that the payee receives the full amount of the payment transaction initiated by the payer. Where the payment transaction is initiated by or through the payee, the payment service provider of the payee shall ensure that the full amount of the payment transaction is received by the payee.
Section 2 Execution time and value date
Article 82
Scope
This Section applies to:
- (a) payment transactions in euro;
- (b) national payment transactions in the currency of the Member State outside the euro area;
- (c) payment transactions involving only one currency conversion between the euro and the currency of a Member State outside the euro area, provided that the required currency conversion is carried out in the Member State outside the euro area concerned and, in the case of cross-border payment transactions, the cross-border transfer takes place in euro.
This Section applies to payment transactions not referred to in the paragraph 1, unless otherwise agreed between the payment service user and the payment service provider, with the exception of Article 87, which is not at the disposal of the parties. However, if the payment service user and the payment service provider agree on a longer period than that set in Article 83, for intra-Union payment transactions, that longer period shall not exceed 4 business days following the time of receipt as referred to in Article 78.
Article 83
Payment transactions to a payment account
Member States shall require the payer’s payment service provider to ensure that after the time of receipt as referred to in Article 78, the amount of the payment transaction will be credited to the payee’s payment service provider’s account by the end of the following business day. That time limit may be extended by a further business day for paper-initiated payment transactions.
Member States shall require the payment service provider of the payee to value date and make available the amount of the payment transaction to the payee’s payment account after the payment service provider has received the funds in accordance with Article 87.
Member States shall require the payee’s payment service provider to transmit a payment order initiated by or through the payee to the payer’s payment service provider within the time limits agreed between the payee and the payment service provider, enabling settlement, as far as direct debit is concerned, on the agreed due date.
Article 84
Absence of payee’s payment account with the payment service provider
Where the payee does not have a payment account with the payment service provider, the funds shall be made available to the payee by the payment service provider who receives the funds for the payee within the time limit laid down in Article 83.
Article 85
Cash placed on a payment account
Where a consumer places cash on a payment account with that payment service provider in the currency of that payment account, the payment service provider shall ensure that the amount is made available and value dated immediately after receipt of the funds. Where the payment service user is not a consumer, the amount shall be made available and value dated at the latest on the following business day after receipt of the funds.
Article 86
National payment transactions
For national payment transactions, Member States may provide for shorter maximum execution times than those provided for in this Section.
Article 87
Value date and availability of funds
Member States shall ensure that the credit value date for the payee’s payment account is no later than the business day on which the amount of the payment transaction is credited to the payee’s payment service provider’s account.
The payment service provider of the payee shall ensure that the amount of the payment transaction is at the payee’s disposal immediately after that amount is credited to the payee’s payment service provider’s account where, on the part of the payee’s payment service provider, there is:
- (a) no currency conversion; or
- (b) a currency conversion between the euro and a Member State currency or between two Member State currencies.
The obligation laid down in this paragraph shall also apply to payments within one payment service provider.
Member States shall ensure that the debit value date for the payer’s payment account is no earlier than the time at which the amount of the payment transaction is debited to that payment account.
Section 3 Liability
Article 88
Incorrect unique identifiers
If a payment order is executed in accordance with the unique identifier, the payment order shall be deemed to have been executed correctly with regard to the payee specified by the unique identifier.
If the unique identifier provided by the payment service user is incorrect, the payment service provider shall not be liable under Article 89 for non-execution or defective execution of the payment transaction.
However, the payer’s payment service provider shall make reasonable efforts to recover the funds involved in the payment transaction. The payee’s payment service provider shall cooperate in those efforts also by communicating to the payer’s payment service provider all relevant information for the collection of funds.
In the event that the collection of funds under the first subparagraph is not possible, the payer’s payment service provider shall provide to the payer, upon written request, all information available to the payer’s payment service provider and relevant to the payer in order for the payer to file a legal claim to recover the funds.
If agreed in the framework contract, the payment service provider may charge the payment service user for recovery.
If the payment service user provides information in addition to that specified in point (a) of Article 45(1) or point (2)(b) of Article 52, the payment service provider shall be liable only for the execution of payment transactions in accordance with the unique identifier provided by the payment service user.
Article 89
Payment service providers’ liability for non-execution, defective or late execution of payment transactions
Where a payment order is initiated directly by the payer, the payer’s payment service provider shall, without prejudice to Article 71, Article 88(2) and (3), and Article 93, be liable to the payer for correct execution of the payment transaction, unless it can prove to the payer and, where relevant, to the payee’s payment service provider that the payee’s payment service provider received the amount of the payment transaction in accordance with Article 83(1). In that case, the payee’s payment service provider shall be liable to the payee for the correct execution of the payment transaction.
Where the payer’s payment service provider is liable under the first subparagraph, it shall, without undue delay, refund to the payer the amount of the non-executed or defective payment transaction, and, where applicable, restore the debited payment account to the state in which it would have been had the defective payment transaction not taken place.
The credit value date for the payer’s payment account shall be no later than the date on which the amount was debited.
Where the payee’s payment service provider is liable under the first subparagraph, it shall immediately place the amount of the payment transaction at the payee’s disposal and, where applicable, credit the corresponding amount to the payee’s payment account.
The credit value date for the payee’s payment account shall be no later than the date on which the amount would have been value dated, had the transaction been correctly executed in accordance with Article 87.
Where a payment transaction is executed late, the payee’s payment service provider shall ensure, upon the request of the payer’s payment service provider acting on behalf of the payer, that the credit value date for the payee’s payment account is no later than the date the amount would have been value dated had the transaction been correctly executed.
In the case of a non-executed or defectively executed payment transaction where the payment order is initiated by the payer, the payer’s payment service provider shall, regardless of liability under this paragraph, on request, make immediate efforts to trace the payment transaction and notify the payer of the outcome. This shall be free of charge for the payer.
Where a payment order is initiated by or through the payee, the payee’s payment service provider shall, without prejudice to Article 71, Article 88(2) and (3), and Article 93, be liable to the payee for correct transmission of the payment order to the payment service provider of the payer in accordance with Article 83(3). Where the payee’s payment service provider is liable under this subparagraph, it shall immediately re-transmit the payment order in question to the payment service provider of the payer.
In the case of a late transmission of the payment order, the amount shall be value dated on the payee’s payment account no later than the date the amount would have been value dated had the transaction been correctly executed.
In addition, the payment service provider of the payee shall, without prejudice to Article 71, Article 88(2) and (3), and Article 93, be liable to the payee for handling the payment transaction in accordance with its obligations under Article 87. Where the payee’s payment service provider is liable under this subparagraph, it shall ensure that the amount of the payment transaction is at the payee’s disposal immediately after that amount is credited to the payee’s payment service provider’s account. The amount shall be value dated on the payee’s payment account no later than the date the amount would have been value dated had the transaction been correctly executed.
In the case of a non-executed or defectively executed payment transaction for which the payee's payment service provider is not liable under the first and third subparagraphs, the payer's payment service provider shall be liable to the payer. Where the payer’s payment service provider is so liable he shall, as appropriate and without undue delay, refund to the payer the amount of the non-executed or defective payment transaction and restore the debited payment account to the state in which it would have been had the defective payment transaction not taken place. The credit value date for the payer’s payment account shall be no later than the date the amount was debited.
The obligation under the fourth subparagraph shall not apply to the payer’s payment service provider where the payer’s payment service provider proves that the payee’s payment service provider has received the amount of the payment transaction, even if execution of payment transaction is merely delayed. If so, the payee’s payment service provider shall value date the amount on the payee’s payment account no later than the date the amount would have been value dated had it been executed correctly.
In the case of a non-executed or defectively executed payment transaction where the payment order is initiated by or through the payee, the payee’s payment service provider shall, regardless of liability under this paragraph, on request, make immediate efforts to trace the payment transaction and notify the payee of the outcome. This shall be free of charge for the payee.
In addition, payment service providers shall be liable to their respective payment service users for any charges for which they are responsible, and for any interest to which the payment service user is subject as a consequence of non-execution or defective, including late, execution of the payment transaction.
Article 90
Liability in the case of payment initiation services for non-execution, defective or late execution of payment transactions
Where a payment order is initiated by the payer through a payment initiation service provider, the account servicing payment service provider shall, without prejudice to Article 71 and Article 88(2) and (3), refund to the payer the amount of the non- executed or defective payment transaction and, where applicable, restore the debited payment account to the state in which it would have been had the defective payment transaction not taken place.
The burden shall be on the payment initiation service provider to prove that the payment order was received by the payer’s account servicing payment service provider in accordance with Article 78 and that within its sphere of competence the payment transaction was authenticated, accurately recorded and not affected by a technical breakdown or other deficiency linked to the non-execution, defective or late execution of the transaction.
If the payment initiation service provider is liable for the non-execution, defective or late execution of the payment transaction, it shall immediately compensate the account servicing payment service provider at its request for the losses incurred or sums paid as a result of the refund to the payer.
Article 91
Additional financial compensation
Any financial compensation additional to that provided for under this Section may be determined in accordance with the law applicable to the contract concluded between the payment service user and the payment service provider.
Article 92
Right of recourse
Where the liability of a payment service provider under Articles 73, 89 and 90 is attributable to another payment service provider or to an intermediary, that payment service provider or intermediary shall compensate the first payment service provider for any losses incurred or sums paid under Articles 73, 89 and 90. That shall include compensation where any of the payment service providers fail to use strong customer authentication.
Further financial compensation may be determined in accordance with agreements between payment service providers and/or intermediaries and the law applicable to the agreement concluded between them.
Article 93
Abnormal and unforeseeable circumstances
No liability shall arise under Chapter 2 or 3 in cases of abnormal and unforeseeable circumstances beyond the control of the party pleading for the application of those circumstances, the consequences of which would have been unavoidable despite all efforts to the contrary, or where a payment service provider is bound by other legal obligations covered by Union or national law.
CHAPTER 4 Data protection
Article 94
Data protection
Member States shall permit processing of personal data by payment systems and payment service providers when necessary to safeguard the prevention, investigation and detection of payment fraud. The provision of information to individuals about the processing of personal data and the processing of such personal data and any other processing of personal data for the purposes of this Directive shall be carried out in accordance with Directive 95/46/EC, the national rules which transpose Directive 95/46/EC and with Regulation (EC) No 45/2001.
Payment service providers shall only access, process and retain personal data necessary for the provision of their payment services, with the explicit consent of the payment service user.
CHAPTER 5 Operational and security risks and authentication
Article 95
Management of operational and security risks
Member States shall ensure that payment service providers establish a framework with appropriate mitigation measures and control mechanisms to manage the operational and security risks, relating to the payment services they provide. As part of that framework, payment service providers shall establish and maintain effective incident management procedures, including for the detection and classification of major operational and security incidents.
The first subparagraph is without prejudice to the application of Chapter II of Regulation (EU) 2022/2554 to:
- (a) payment service providers referred to in points (a), (b) and (d) of Article 1(1) of this Directive;
- (b) account information service providers referred to in Article 33(1) of this Directive;
- (c) payment institutions exempted pursuant to Article 32(1) of this Directive; and
- (d) electronic money institutions benefitting from a waiver as referred to in Article 9(1) of Directive 2009/110/EC.
Member States shall ensure that payment service providers provide to the competent authority on an annual basis, or at shorter intervals as determined by the competent authority, an updated and comprehensive assessment of the operational and security risks relating to the payment services they provide and on the adequacy of the mitigation measures and control mechanisms implemented in response to those risks.
By 13 July 2017, EBA shall, in close cooperation with the ECB and after consulting all relevant stakeholders, including those in the payment services market, reflecting all interests involved, issue guidelines in accordance with Article 16 of Regulation (EU) No 1093/2010 with regard to the establishment, implementation and monitoring of the security measures, including certification processes where relevant.
EBA shall, in close cooperation with the ECB, review the guidelines referred to in the first subparagraph on a regular basis and in any event at least every 2 years.
Taking into account experience acquired in the application of the guidelines referred to in paragraph 3, EBA shall, where requested to do so by the Commission as appropriate, develop draft regulatory technical standards on the criteria and on the conditions for establishment, and monitoring, of security measures.
Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010.
EBA shall promote cooperation, including the sharing of information, in the area of operational and security risks associated with payment services among the competent authorities, and between the competent authorities and the ECB and, where relevant, the European Union Agency for Network and Information Security.
Article 96
Incident reporting
In the case of a major operational or security incident, payment service providers shall, without undue delay, notify the competent authority in the home Member State of the payment service provider.
Where the incident has or may have an impact on the financial interests of its payment service users, the payment service provider shall, without undue delay, inform its payment service users of the incident and of all measures that they can take to mitigate the adverse effects of the incident.
Upon receipt of the notification referred to in paragraph 1, the competent authority of the home Member State shall, without undue delay, provide the relevant details of the incident to EBA and to the ECB. That competent authority shall, after assessing the relevance of the incident to relevant authorities of that Member State, notify them accordingly.
EBA and the ECB shall, in cooperation with the competent authority of the home Member State, assess the relevance of the incident to other relevant Union and national authorities and shall notify them accordingly. The ECB shall notify the members of the European System of Central Banks on issues relevant to the payment system.
On the basis of that notification, the competent authorities shall, where appropriate, take all of the necessary measures to protect the immediate safety of the financial system.
By 13 January 2018, EBA shall, in close cooperation with the ECB and after consulting all relevant stakeholders, including those in the payment services market, reflecting all interests involved, issue guidelines in accordance with Article 16 of Regulation (EU) No 1093/2010 addressed to each of the following:
- (a) payment service providers, on the classification of major incidents referred to in paragraph 1, and on the content, the format, including standard notification templates, and the procedures for notifying such incidents;
- (b) competent authorities, on the criteria on how to assess the relevance of the incident and the details of the incident reports to be shared with other domestic authorities.
EBA shall, in close cooperation with the ECB, review the guidelines referred to in paragraph 3 on a regular basis and in any event at least every 2 years.
While issuing and reviewing the guidelines referred to in paragraph 3, EBA shall take into account standards and/or specifications developed and published by the European Union Agency for Network and Information Security for sectors pursuing activities other than payment service provision.
Member States shall ensure that payment service providers provide, at least on an annual basis, statistical data on fraud relating to different means of payment to their competent authorities. Those competent authorities shall provide EBA and the ECB with such data in an aggregated form.
Members States shall ensure that paragraphs 1 to 5 of this Article do not apply to:
- (a) payment service providers referred to in points (a), (b) and (d) of Article 1(1) of this Directive;
- (b) account information service providers referred to in Article 33(1) of this Directive;
- (c) payment institutions exempted pursuant to Article 32(1) of this Directive; and
- (d) electronic money institutions benefitting from a waiver as referred to in Article 9(1) of Directive 2009/110/EC.
Article 97
Authentication
Member States shall ensure that a payment service provider applies strong customer authentication where the payer:
- (a) accesses its payment account online;
- (b) initiates an electronic payment transaction;
- (c) carries out any action through a remote channel which may imply a risk of payment fraud or other abuses.
With regard to the initiation of electronic payment transactions as referred to in point (b) of paragraph 1, Member States shall ensure that, for electronic remote payment transactions, payment service providers apply strong customer authentication that includes elements which dynamically link the transaction to a specific amount and a specific payee.
With regard to paragraph 1, Member States shall ensure that payment service providers have in place adequate security measures to protect the confidentiality and integrity of payment service users’ personalised security credentials.
Paragraphs 2 and 3 shall also apply where payments are initiated through a payment initiation service provider. Paragraphs 1 and 3 shall also apply when the information is requested through an account information service provider.
Member States shall ensure that the account servicing payment service provider allows the payment initiation service provider and the account information service provider to rely on the authentication procedures provided by the account servicing payment service provider to the payment service user in accordance with paragraphs 1 and 3 and, where the payment initiation service provider is involved, in accordance with paragraphs 1, 2 and 3.
Article 98
Regulatory technical standards on authentication and communication
EBA shall, in close cooperation with the ECB and after consulting all relevant stakeholders, including those in the payment services market, reflecting all interests involved, develop draft regulatory technical standards addressed to payment service providers as set out in Article 1(1) of this Directive in accordance with Article 10 of Regulation (EU) No 1093/2010 specifying:
- (a) the requirements of the strong customer authentication referred to in Article 97(1) and (2);
- (b) the exemptions from the application of Article 97(1), (2) and (3), based on the criteria established in paragraph 3 of this Article;
- (c) the requirements with which security measures have to comply, in accordance with Article 97(3) in order to protect the confidentiality and the integrity of the payment service users’ personalised security credentials; and
- (d) the requirements for common and secure open standards of communication for the purpose of identification, authentication, notification, and information, as well as for the implementation of security measures, between account servicing payment service providers, payment initiation service providers, account information service providers, payers, payees and other payment service providers.
The draft regulatory technical standards referred to in paragraph 1 shall be developed by EBA in order to:
- (a) ensure an appropriate level of security for payment service users and payment service providers, through the adoption of effective and risk-based requirements;
- (b) ensure the safety of payment service users’ funds and personal data;
- (c) secure and maintain fair competition among all payment service providers;
- (d) ensure technology and business-model neutrality;
- (e) allow for the development of user-friendly, accessible and innovative means of payment.
The exemptions referred to in point (b) of paragraph 1 shall be based on the following criteria:
- (a) the level of risk involved in the service provided;
- (b) the amount, the recurrence of the transaction, or both;
- (c) the payment channel used for the execution of the transaction.
EBA shall submit the draft regulatory technical standards referred to in paragraph 1 to the Commission by 13 January 2017.
Power is delegated to the Commission to adopt those regulatory technical standards in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010.
In accordance with Article 10 of Regulation (EU) No 1093/2010, EBA shall review and, if appropriate, update the regulatory technical standards on a regular basis in order, inter alia, to take account of innovation and technological developments, and of the provisions of Chapter II of Regulation (EU) 2022/2554.
CHAPTER 6 ADR procedures for the settlement of disputes
Section 1 Complaint procedures
Article 99
Complaints
Member States shall ensure that procedures are set up which allow payment service users and other interested parties including consumer associations, to submit complaints to the competent authorities with regard to payment service providers' alleged infringements of the provisions of national law implementing the provisions of this Directive.
Where appropriate and without prejudice to the right to bring proceedings before a court in accordance with national procedural law, the reply from the competent authorities shall inform the complainant of the existence of the ADR procedures set up in accordance with Article 102.
Article 100
Competent authorities
Member States shall designate competent authorities to ensure and monitor effective compliance with this Directive. Those competent authorities shall take all appropriate measures to ensure such compliance.
They shall be either:
- (a) competent authorities within the meaning of Article 4(2) of Regulation (EU) No 1093/2010; or
- (b) bodies recognised by national law or by public authorities expressly empowered for that purpose by national law.
They shall not be payment service providers, with the exception of national central banks.
The authorities referred to in paragraph 1 shall possess all powers and adequate resources necessary for the performance of their duties. Where more than one competent authority is empowered to ensure and monitor effective compliance with this Directive, Member States shall ensure that those authorities collaborate closely so that they can discharge their respective duties effectively.
The competent authorities shall exercise their powers in accordance with national law either:
- (a) directly under their own authority or under the supervision of the judicial authorities; or
- (b) by application to courts which are competent to grant the necessary decision, including, where appropriate, by appeal, if the application to grant the necessary decision is not successful.
In the event of infringement or suspected infringement of the provisions of national law transposing Titles III and IV, the competent authorities referred to in paragraph 1 of this Article shall be those of the home Member State of the payment service provider, except for agents and branches conducted under the right of establishment where the competent authorities shall be those of the host Member State.
Member States shall notify the Commission of the designated competent authorities referred to in paragraph 1 as soon as possible and in any event by 13 January 2018. They shall inform the Commission of any division of duties of those authorities. They shall immediately notify the Commission of any subsequent change concerning the designation and respective competences of those authorities.
EBA shall, after consulting the ECB, issue guidelines, addressed to the competent authorities, in accordance with Article 16 of Regulation (EU) No 1093/2010 on the complaints procedures to be taken into consideration to ensure compliance with paragraph 1 of this Article. Those guidelines shall be issued by 13 January 2018 and shall be updated on a regular basis, as appropriate.
Section 2 ADR procedures and penalties
Article 101
Dispute resolution
Member States shall ensure that payment service providers put in place and apply adequate and effective complaint resolution procedures for the settlement of complaints of payment service users concerning the rights and obligations arising under Titles III and IV of this Directive and shall monitor their performance in that regard.
Those procedures shall be applied in every Member State where the payment service provider offers the payment services and shall be available in an official language of the relevant Member State or in another language if agreed between the payment service provider and the payment service user.
Member States shall require that payment service providers make every possible effort to reply, on paper or, if agreed between payment service provider and payment service user, on another durable medium, to the payment service users’ complaints. Such a reply shall address all points raised, within an adequate timeframe and at the latest within 15 business days of receipt of the complaint. In exceptional situations, if the answer cannot be given within 15 business days for reasons beyond the control of the payment service provider, it shall be required to send a holding reply, clearly indicating the reasons for a delay in answering to the complaint and specifying the deadline by which the payment service user will receive the final reply. In any event, the deadline for receiving the final reply shall not exceed 35 business days.
Member States may introduce or maintain rules on dispute resolution procedures that are more advantageous to the payment service user than that referred to in the first subparagraph. Where they do so, those rules shall apply.
The payment service provider shall inform the payment service user about at least one ADR entity which is competent to deal with disputes concerning the rights and obligations arising under Titles III and IV.
The information referred to in paragraph 3 shall be mentioned in a clear, comprehensive and easily accessible way on the website of the payment service provider, where one exists, at the branch, and in the general terms and conditions of the contract between the payment service provider and the payment service user. It shall specify how further information on the ADR entity concerned and on the conditions for using it can be accessed.
Article 102
ADR procedures
Member States shall ensure that adequate, independent, impartial, transparent and effective ADR procedures for the settlement of disputes between payment service users and payment service providers concerning the rights and obligations arising under Titles III and IV of this Directive are established according to the relevant national and Union law in accordance with Directive 2013/11/EU of the European Parliament and the Council ([^E0011]), using existing competent bodies where appropriate. Member States shall ensure that ADR procedures are applicable to payment service providers.
Member States shall require the bodies referred to in paragraph 1 of this Article to cooperate effectively for the resolution of cross-border disputes concerning the rights and obligations arising under Titles III and IV.
Article 103
Penalties
Member States shall lay down rules on penalties applicable to infringements of the national law transposing this Directive and shall take all necessary measures to ensure that they are implemented. Such penalties shall be effective, proportionate and dissuasive.
Member States shall allow their competent authorities to disclose to the public any administrative penalty that is imposed for infringement of the measures adopted in the transposition of this Directive, unless such disclosure would seriously jeopardise the financial markets or cause disproportionate damage to the parties involved.
TITLE V DELEGATED ACTS AND REGULATORY TECHNICAL STANDARDS
Article 104
Delegated acts
The Commission shall be empowered to adopt delegated acts in accordance with Article 105 concerning:
- (a) adapting the reference to Recommendation 2003/361/EC in point (36) of Article 4 of this Directive where that Recommendation is amended;
- (b) updating the amounts specified in Article 32(1) and Article 74(1) to take account of inflation.
Article 105
Exercise of the delegation
The power to adopt delegated acts is conferred on the Commission subject to the conditions laid down in this Article.
The power to adopt delegated acts referred to in Article 104 shall be conferred on the Commission for an undetermined period of time from 12 January 2016.
The delegation of power referred to in Article 104 may be revoked at any time by the European Parliament or by the Council. A decision to revoke shall put an end to the delegation of the power specified in that decision. It shall take effect on the day following the publication of the decision in the Official Journal of the European Union or on a later date specified therein. It shall not affect the validity of any delegated acts already in force.
As soon as it adopts a delegated act, the Commission shall notify it simultaneously to the European Parliament and to the Council.
A delegated act adopted pursuant to Article 104 shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of 3 months of notification of that act to the European Parliament and the Council or if, before the expiry of that period, the European Parliament and the Council have both informed the Commission that they will not object. That period shall be extended by 3 months at the initiative of the European Parliament or of the Council.
Article 106
Obligation to inform consumers of their rights
By 13 January 2018, the Commission shall produce a user-friendly electronic leaflet, listing in a clear and easily comprehensible manner, the rights of consumers under this Directive and related Union law.
The Commission shall inform Member States, European associations of payment service providers and European consumer associations of the publication of the leaflet referred to in paragraph 1.
The Commission, EBA and the competent authorities shall each ensure that the leaflet is made available in an easily accessible manner on their respective websites.
Payment service providers shall ensure that the leaflet is made available in an easily accessible manner on their websites, if existing, and on paper at their branches, their agents and the entities to which their activities are outsourced.
Payment service providers shall not charge their clients for making available information under this Article.
In respect of persons with disabilities, the provisions of this Article shall be applied using appropriate alternative means, allowing the information to be made available in an accessible format.
TITLE VI FINAL PROVISIONS
Article 107
Full harmonisation
Without prejudice to Article 2, Article 8(3), Article 32, Article 38(2), Article 42(2), Article 55(6), Article 57(3), Article 58(3), Article 61(2) and (3), Article 62(5), Article 63(2) and (3), the fourth subparagraph of Article 74(1) and Article 86, insofar as this Directive contains harmonised provisions, Member States shall not maintain or introduce provisions other than those laid down in this Directive.
Where a Member State makes use of any of the options referred to in paragraph 1, it shall inform the Commission thereof as well as of any subsequent changes. The Commission shall make the information public on a website or other easily accessible means.
Member States shall ensure that payment service providers do not derogate, to the detriment of payment service users, from the provisions of national law transposing this Directive except where explicitly provided for therein.
However, payment service providers may decide to grant more favourable terms to payment service users.
Article 108
Review clause
The Commission shall, by 13 January 2021, submit to the European Parliament, the Council, the ECB and the European Economic and Social Committee, a report on the application and impact of this Directive, and in particular on:
- (a) the appropriateness and the impact of the rules on charges as set out in Article 62(3), (4) and (5);
- (b) the application of Article 2(3) and (4), including an assessment of whether Titles III and IV can, where technically feasible, be applied in full to payment transactions referred to in those paragraphs;
- (c) access to payment systems, having regard in particular to the level of competition;
- (d) the appropriateness and the impact of the thresholds for the payment transactions referred to in point (l) of Article 3;
- (e) the appropriateness and the impact of the threshold for the exemption referred to in point (a) of Article 32(1);
- (f) whether, given developments, it would be desirable, as a complement to the provisions in Article 75 on payment transactions where the amount is not known in advance and funds are blocked, to introduce maximum limits for the amounts to be blocked on the payer’s payment account in such situations.
If appropriate, the Commission shall submit a legislative proposal together with its report.
Article 109
Transitional provision
Member States shall allow payment institutions that have taken up activities in accordance with the national law transposing Directive 2007/64/EC by 13 January 2018, to continue those activities in accordance with the requirements provided for in Directive 2007/64/EC without being required to seek authorisation in accordance with Article 5 of this Directive or to comply with the other provisions laid down or referred to in Title II of this Directive until 13 July 2018.
Member States shall require such payment institutions to submit all relevant information to the competent authorities in order to allow the latter to assess, by 13 July 2018, whether those payment institutions comply with the requirements laid down in Title II and, if not, which measures need to be taken in order to ensure compliance or whether a withdrawal of authorisation is appropriate.
Payment institutions which upon verification by the competent authorities comply with the requirements laid down in Title II shall be granted authorisation and shall be entered in the registers referred to in Articles 14 and 15. Where those payment institutions do not comply with the requirements laid down in Title II by 13 July 2018, they shall be prohibited from providing payment services in accordance with Article 37.
Member States may provide for payment institutions referred to in paragraph 1 of this Article to be automatically granted authorisation and entered in the registers referred to in Articles 14 and 15 if the competent authorities already have evidence that the requirements laid down in Articles 5 and 11 are complied with. The competent authorities shall inform the payment institutions concerned before the authorisation is granted.
This paragraph applies to natural or legal persons who benefited under Article 26 of Directive 2007/64/EC before 13 January 2018, and pursued payment services activities within the meaning of Directive 2007/64/EC.
Member States shall allow those persons to continue those activities within the Member State concerned in accordance with Directive 2007/64/EC, until 13 January 2019 without being required to seek authorisation under Article 5 of this Directive or, to obtain an exemption pursuant to Article 32 of this Directive, or to comply with the other provisions laid down or referred to in Title II of this Directive.
Any person referred to in the first subparagraph who has not, by 13 January 2019, been authorised or exempted under this Directive shall be prohibited from providing payment services in accordance with Article 37 of this Directive.
Member States may allow natural and legal persons benefiting from an exemption as referred to in paragraph 3 of this Article to be deemed to benefit from an exemption and automatically entered in the registers referred to in Articles 14 and 15 where the competent authorities have evidence that the requirements laid down in Article 32 are complied with. The competent authorities shall inform the payment institutions concerned.
Notwithstanding paragraph 1 of this Article, payment institutions that have been granted authorisation to provide payment services as referred to in point (7) of the Annex to Directive 2007/64/EC shall retain that authorisation for the provision of those payment services which are considered to be payment services as referred to in point (3) of the Annex I to this Directive where, by 13 January 2020, the competent authorities have the evidence that the requirements laid down in point (c) of Article 7 and in Article 9 of this Directive are complied with.
Article 110
Amendments to Directive 2002/65/EC
In Article 4 of Directive 2002/65/EC, paragraph 5 is replaced by the following:
‘5. Where Directive (EU) 2015/2366 of the European Parliament and of the Council ([^E0012]) is also applicable, the information provisions under Article 3(1) of this Directive, with the exception of points (2)(c) to (g), (3)(a), (d) and (e), and (4)(b), shall be replaced with Articles 44, 45, 51 and 52 of Directive (EU) 2015/2366.
Article 111
Amendments to Directive 2009/110/EC
Directive 2009/110/EC is amended as follows:
- (1) Article 3 is amended as follows:
- (a) paragraph 1 is replaced by the following: ‘1. Without prejudice to this Directive, Article 5, Articles 11 to 17, Article 19(5) and (6) and Articles 20 to 31 of Directive (EU) 2015/2366 of the European Parliament and of the Council ([^E0013]), including the delegated acts adopted under Article 15(4), Article 28(5) and Article 29(7) thereof, shall apply to electronic money institutions mutatis mutandis.
- (b) paragraphs 4 and 5 are replaced by the following: ‘4. Member States shall allow electronic money institutions to distribute and redeem electronic money through natural or legal persons which act on their behalf. Where the electronic money institution distributes electronic money in another Member State by engaging such a natural or legal person, Articles 27 to 31, with exception of Article 29(4) and (5), of Directive (EU) 2015/2366, including the delegated acts adopted in accordance with Article 28(5) and Article 29(7) thereof, shall apply mutatis mutandis to such electronic money institution.
Notwithstanding paragraph 4 of this Article, electronic money institutions shall not issue electronic money through agents. Electronic money institutions shall be allowed to provide payment services referred to in point (a) of Article 6(1) of this Directive through agents subject to the conditions laid down in Article 19 of Directive (EU) 2015/2366.’;
- (2) in Article 18, the following paragraph is added: ‘4. Member States shall allow electronic money institutions that have, before 13 January 2018, taken up activities in accordance with this Directive and with Directive 2007/64/EC in the Member State in which their head office is located to continue those activities in that Member State or in another Member State without being required to seek authorisation in accordance with Article 3 of this Directive or to comply with other requirements laid down or referred to in Title II of this Directive until 13 July 2018. Member States shall require electronic money institutions referred to in the first subparagraph to submit all relevant information to the competent authorities in order to allow the later to assess, by 13 July 2018, whether those electronic money institutions comply with the requirements laid down in Title II of this Directive, and, if not, which measures need to be taken in order to ensure compliance or whether a withdrawal of authorisation is appropriate. Electronic money institutions referred to in the first subparagraph which upon verification by the competent authorities comply with the requirements laid down in Title II shall be granted authorisation and shall be entered in the register. Where those electronic money institutions do not comply with the requirements laid down in Title II by 13 July 2018 they shall be prohibited from issuing electronic money.’.
Article 112
Amendments to Regulation (EU) No 1093/2010
Regulation (EU) No 1093/2010 is amended as follows:
- (1) in Article 1, paragraph 2 is replaced by the following: ‘2. The Authority shall act within the powers conferred by this Regulation and within the scope of, Directive 2002/87/EC, Directive 2009/110/EC, Regulation (EU) No 575/2013 of the European Parliament and of the Council ([^E0014]), Directive 2013/36/EU of the European Parliament and of the Council ([^E0015]), Directive 2014/49/EU of the European Parliament and of the Council ([^E0016]), Regulation (EU) 2015/847 of the European Parliament and the Council ([^E0017]), Directive (EU) 2015/2366 of the European Parliament and of the Council ([^E0018]) and, to the extent that those acts apply to credit and financial institutions and the competent authorities that supervise them, within the relevant parts of Directive 2002/65/EC and Directive (EU)2015/849 of the European Parliament and of the Council ([^E0019]), including all directives, regulations, and decisions based on those acts, and of any further legally binding Union act which confers tasks on the Authority. The Authority shall also act in accordance with Council Regulation (EU) No 1024/2013 ([^E0020]).
- (2) Article 4(1) is replaced by the following: ‘(1) “financial institutions” means credit institutions as defined in point (1) of Article 4(1) of Regulation (EU) No 575/2013, investment firms as defined in point (2) of Article 4(1) of Regulation (EU) No 575/2013, financial conglomerates as defined in Article 2(14) of Directive 2002/87/EC, payment service providers as defined in point (11) of Article 4 of Directive (EU) 2015/2366 and electronic money institutions as defined in point (1) of Article 2 of Directive 2009/110/EC, save that, with regard to Directive (EU) 2015/849, ‘financial institutions’ means credit institutions and financial institutions as defined in points (1) and (2) of Article 3 of Directive (EU) 2015/849;’.
Article 113
Amendment to Directive 2013/36/EU
In Annex I to Directive 2013/36/EU, point (4) is replaced by the following:
- ‘(4) Payment services as defined in point (3) of Article 4 of Directive (EU) 2015/2366 of the European Parliament and of the Council ([^E0021]);
Article 114
Repeal
Directive 2007/64/EC is repealed with effect from 13 January 2018.
Any reference to the repealed Directive shall be construed as a reference to this Directive and shall be read in accordance with the correlation table in Annex II to this Directive.
Article 115
Transposition
By 13 January 2018, Member States shall adopt and publish the measures necessary to comply with this Directive. They shall immediately inform the Commission thereof.
They shall apply those measures from 13 January 2018.
When Member States adopt those measures, they shall contain a reference to this Directive or shall be accompanied by such reference on the occasion of their official publication. Member States shall determine how such reference is to be made.
Member States shall communicate to the Commission the text of the main measures of national law which they adopt in the field covered by this Directive.
By way of derogation from paragraph 2, Member States shall ensure the application of the security measures referred to in Articles 65, 66, 67 and 97 from 18 months after the date of entry into force of the regulatory technical standards referred to in Article 98.
Member States shall not forbid legal persons that have performed in their territories, before 12 January 2016, activities of payment initiation service providers and account information service providers within the meaning of this Directive, to continue to perform the same activities in their territories during the transitional period referred to in paragraphs 2 and 4 in accordance with the currently applicable regulatory framework.
Member States shall ensure that until individual account servicing payment service providers comply with the regulatory technical standards referred to in paragraph 4, account servicing payment service providers do not abuse their non-compliance to block or obstruct the use of payment initiation and account information services for the accounts that they are servicing.
Article 116
Entry into force
This Directive shall enter into force on the twentieth day following that of its publication in the Official Journal of the European Union.
Article 117
Addresses
This Directive is addressed to the Member States.
ANNEX I
PAYMENT SERVICES
(as referred to in point (3) of Article 4)
- 1.Services enabling cash to be placed on a payment account as well as all the operations required for operating a payment account.
- 2.Services enabling cash withdrawals from a payment account as well as all the operations required for operating a payment account.
- 3.Execution of payment transactions, including transfers of funds on a payment account with the user’s payment service provider or with another payment service provider:
- (a) execution of direct debits, including one-off direct debits;
- (b) execution of payment transactions through a payment card or a similar device;
- (c) execution of credit transfers, including standing orders.
- 4.Execution of payment transactions where the funds are covered by a credit line for a payment service user:
- (a) execution of direct debits, including one-off direct debits;
- (b) execution of payment transactions through a payment card or a similar device;
- (c) execution of credit transfers, including standing orders.
- 5.Issuing of payment instruments and/or acquiring of payment transactions.
- 6.Money remittance.
- 7.Payment initiation services.
- 8.Account information services.
ANNEX II
CORRELATION TABLE
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