Legal provisions of COM(2008)640 - Cross-border payments in the EC

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dossier COM(2008)640 - Cross-border payments in the EC.
document COM(2008)640 EN
date September 16, 2009

Contents

Article 1 - Subject matter and scope

1. This Regulation lays down rules on cross-border payments within the Community, ensuring that charges for cross-border payments within the Community are the same as those for payments in the same currency within a Member State.

2. This Regulation shall apply to cross-border payments, in accordance with the provisions of Directive 2007/64/EC, which are denominated in euro or in the national currencies of the Member States which have notified their decision to extend the application of this Regulation to their national currency, in accordance with Article 14.

3. This Regulation shall not apply to payments made by payment service providers for their own account or on behalf of other payment service providers.

4. Articles 6, 7 and 8 lay down rules regarding direct debit transactions denominated in euro between the payment service providers of the payee and of the payer.

Article 2 - Definitions

For the purposes of this Regulation, the following definitions shall apply:

1.‘cross-border payment’ means an electronically processed payment transaction initiated by a payer or by or through a payee where the payer’s payment service provider and the payee’s payment service provider are located in different Member States;

2.‘national payment’ means an electronically processed payment transaction initiated by a payer, or by or through a payee, where the payer’s payment service provider and the payee’s payment service provider are located in the same Member State;

3.‘payer’ means a natural or legal person who holds a payment account and allows a payment order from that payment account, or, where there is no payment account, a natural or legal person who gives a payment order;

4.‘payee’ means a natural or legal person who is the intended recipient of funds which have been the subject of a payment transaction;

5.‘payment service provider’ means any of the categories of legal person referred to in Article 1(1) of Directive 2007/64/EC and the natural or legal persons referred to in Article 26 of that Directive, but excludes those institutions listed in Article 2 of Directive 2006/48/EC of the European Parliament and of the Council of 14 June 2006 relating to the taking up and pursuit of the business of credit institutions (6) benefiting from a Member State waiver exercised under Article 2(3) of Directive 2007/64/EC;

6.‘payment service user’ means a natural or legal person making use of a payment service in the capacity of either payer or payee, or both;

7.‘payment transaction’ means an act, initiated by a payer or by or through a payee, of placing, transferring or withdrawing funds, irrespective of any underlying obligations between the payer and the payee;

8.‘payment order’ means an instruction by a payer or payee to his payment service provider requesting the execution of a payment transaction;

9.‘charge’ means a charge levied by a payment service provider on the payment service user and directly or indirectly linked to a payment transaction;

10.‘funds’ means banknotes and coins, scriptural money and electronic money as defined in Article 1(3)(b) of Directive 2000/46/EC of the European Parliament and of the Council of 18 September 2000 on the taking up, pursuit of and prudential supervision of the business of electronic money institutions (7);

11.‘consumer’ means a natural person acting for purposes other than his or her trade, business or profession;

12.‘micro-enterprise’ means an enterprise, which, at the time of conclusion of the payment service contract, is an enterprise, as defined in Article 1 and Article 2(1) and (3) of the Annex to Commission Recommendation 2003/361/EC of 6 May 2003 concerning the definition of micro, small and medium-sized enterprises (8);

13.‘interchange fee’ means a fee paid between the payment service providers of the payer and of the payee for each direct debit transaction;

14.‘direct debit’ means a payment service for debiting a payer’s payment account, where a payment transaction is initiated by the payee on the basis of the payer’s consent given to the payee, to the payee’s payment service provider or to the payer’s own payment service provider;

15.‘direct debit scheme’ means a common set of rules, practices and standards agreed between payment service providers for the execution of direct debit transactions.

Article 3 - Charges for cross-border payments and corresponding national payments

1. Charges levied by a payment service provider on a payment service user in respect of cross-border payments of up to EUR 50 000 shall be the same as the charges levied by that payment service provider on payment service users for corresponding national payments of the same value and in the same currency.

2. When assessing, for the purpose of complying with paragraph 1, the level of charges for a cross-border payment, a payment service provider shall identify the corresponding national payment.

The competent authorities shall issue guidelines to identify corresponding national payments where they consider it necessary to do so. The competent authorities shall actively cooperate within the Payments Committee established in accordance with Article 85(1) of Directive 2007/64/EC to ensure the consistency of guidelines for corresponding national payments.

3. Where a Member State has notified its decision to extend the application of this Regulation to its national currency in accordance with Article 14, a national payment that is denominated in the currency of that Member State may be considered as corresponding to a cross-border payment that is denominated in euro.

4. This Regulation shall not apply to currency conversion charges.

Article 4 - Measures for facilitating the automation of payments

1. A payment service provider shall, where applicable, communicate to the payment service user the payment service user’s IBAN and the payment service provider’s BIC.

In addition, where applicable, a payment service provider shall indicate the payment service user’s IBAN and the payment service provider’s BIC on statements of account, or in an annex thereto.

A payment service provider shall provide the information required under this paragraph to the payment service user free of charge.

2. Where appropriate, with regard to the nature of the payment transaction concerned:

(a)for transactions initiated by the payer, the payer shall, on request, communicate to the payment service provider the payee’s IBAN and the BIC of the payee’s payment service provider;

(b)for transactions initiated by the payee, the payee shall, on request, communicate to the payment service provider the payer’s IBAN and the BIC of the payer’s payment service provider.

3. The payment service provider may levy charges additional to those levied in accordance with Article 3(1) on the payment service user where that user instructs the payment service provider to execute the payment transaction without communicating the IBAN and BIC in accordance with paragraph 2 of this Article. Those charges shall be appropriate and in line with the costs. They shall be agreed between the payment service provider and the payment service user. The payment service provider shall inform the payment service user of the amount of the additional charges in good time before the payment service user is bound by such an agreement.

4. Where appropriate, with regard to the nature of the payment transaction concerned, for all invoicing of goods and services in the Community, a supplier of goods and services that accepts payments covered by this Regulation shall communicate its IBAN and the BIC of its payment service provider to its customers.

Article 5 - Balance of payments reporting obligations

1. With effect from 1 January 2010, Member States shall remove settlement-based national reporting obligations on payment service providers for balance of payments statistics related to payment transactions of their customers up to EUR 50 000.

2. Without prejudice to paragraph 1, Member States may continue to collect aggregated data or other relevant readily available information, provided that such collection has no impact on the straight through processing of the payments and can be fully automated by payment service providers.

Article 6 - Interchange fee for cross-border direct debit transactions

In the absence of any bilateral agreement between the payment service providers of the payee and of the payer, a multilateral interchange fee of EUR 0,088, payable by the payment service provider of the payee to the payment service provider of the payer, shall apply for each cross-border direct debit transaction executed before 1 November 2012, unless a lower multilateral interchange fee has been agreed upon between the payment service providers concerned.

Article 7 - Interchange fee for national direct debit transactions

1. Without prejudice to paragraphs 2 and 3, where a multilateral interchange fee or other agreed remuneration for a national direct debit transaction executed before 1 November 2009 applies between the payment service providers of the payee and of the payer, such a multilateral interchange fee or other agreed remuneration shall apply for any national direct debit transaction executed before 1 November 2012.

2. Where such a multilateral interchange fee or other agreed remuneration is reduced or abolished before 1 November 2012, such reduction or abolition shall apply to any national direct debit transactions executed before that date.

3. In the event of a bilateral agreement between the payment service providers of the payee and of the payer for a national direct debit transaction, paragraphs 1 and 2 shall not apply where that national direct debit transaction was executed before 1 November 2012.

Article 8 - Reachability for direct debit transactions

1. A payment service provider of a payer reachable for a national direct debit transaction denominated in euro on the payment account of that payer shall be reachable, in accordance with the direct debit scheme, for direct debit transactions denominated in euro initiated by a payee through a payment service provider located in any Member State.

2. Paragraph 1 shall apply only to direct debit transactions which are available to consumers under the direct debit scheme.

3. Payment service providers shall comply with the requirements of paragraphs 1 and 2 by 1 November 2010.

4. Notwithstanding paragraph 3, payment service providers located in a Member State which does not have the euro as its currency shall comply with the requirements of paragraphs 1 and 2 for direct debit transactions denominated in euro by 1 November 2014. If, however, the euro is introduced as the currency of any such Member State before 1 November 2013, the payment service provider located in that Member State shall comply with the requirements of paragraphs 1 and 2 within 1 year of the date on which the Member State concerned joined the euro area.

Article 9 - Competent authorities

Member States shall designate the competent authorities responsible for ensuring compliance with this Regulation.

Member States shall notify the Commission of those competent authorities by 29 April 2010. They shall notify the Commission without delay of any subsequent change concerning those authorities.

Member States may designate existing bodies to act as competent authorities.

Member States shall require the competent authorities to monitor compliance with this Regulation effectively and take all necessary measures to ensure such compliance.

Article 10 - Complaint procedures for alleged infringements of this Regulation

1. Member States shall establish procedures which allow payment service users and other interested parties to submit complaints to the competent authorities with regard to alleged infringements of this Regulation by payment service providers.

Member States may use or extend existing procedures for that purpose.

2. Where appropriate, and without prejudice to the right to bring proceedings before a court in accordance with national procedural law, the competent authorities shall inform the party that has submitted a complaint of the existence of the out-of-court complaint and redress procedures established in accordance with Article 11.

Article 11 - Out-of-court complaint and redress procedures

1. Member States shall establish adequate and effective out-of-court complaint and redress procedures for the settlement of disputes concerning rights and obligations arising under this Regulation between payment service users and their payment service providers. For those purposes, Member States shall designate existing bodies, where appropriate, or establish new bodies.

2. Member States shall notify the Commission of those bodies by 29 April 2010. They shall notify the Commission without delay of any subsequent change concerning those bodies.

3. Member States may provide that this Article applies only to payment service users which are consumers or micro-enterprises. In such event Member States shall inform the Commission accordingly.

Article 12 - Cross-border cooperation

The competent authorities and the bodies responsible for out-of-court complaint and redress procedures of the different Member States, referred to in Articles 9 and 11, shall actively and expeditiously cooperate in solving cross-border disputes. Member States shall ensure that such cooperation takes place.

Article 13 - Penalties

Without prejudice to Article 17, Member States shall, by 1 June 2010, lay down rules on the penalties applicable to infringements to this Regulation and shall take all measures necessary to ensure that they are implemented. Such penalties shall be effective, proportionate and dissuasive. Member States shall notify those provisions to the Commission by 29 October 2010 and shall notify it without delay of any subsequent amendment affecting them.

Article 14 - Application to currencies other than the euro

1. A Member State that does not have the euro as its currency and that decides to extend the application of this Regulation, with the exception of Articles 6, 7 and 8, to its national currency shall notify the Commission accordingly. That notification shall be published in the Official Journal of the European Union. The extended application of this Regulation shall take effect 14 days after such publication.

2. A Member State that does not have the euro as its currency and that decides to extend the application of Article 6, 7 or 8, or any combination thereof, to its national currency shall notify the Commission accordingly. That notification shall be published in the Official Journal of the European Union. The extended application of Article 6, 7 or 8 shall take effect 14 days after such publication.

3. Member States which, on 29 October 2009, have already complied with the notification procedure pursuant to Article 9 of Regulation (EC) No 2560/2001, shall not be required to submit a notification as referred to in paragraph 1 of this Article.

Article 15 - Review

1. By 31 October 2011, the Commission shall present to the European Parliament, the Council, the European Economic and Social Committee and the European Central Bank a report on the appropriateness of removing settlement-based national reporting obligations. That report shall be accompanied, where appropriate, by a proposal.

2. By 31 October 2012, the Commission shall present to the European Parliament, the Council, the European Economic and Social Committee and the European Central Bank a report on the application of this Regulation accompanied, if appropriate, by a proposal. That report shall cover, in particular:

(a)the use of the IBAN and the BIC in relation to the automation of payments;

(b)the appropriateness of the ceiling provided for in Article 3(1); and

(c)market developments in relation to the application of Articles 6, 7 and 8.

Article 16 - Repeal

Regulation (EC) No 2560/2001 is repealed, as from 1 November 2009.

References to the repealed Regulation shall be construed as references to this Regulation.

Article 17 - Entry into force

This Regulation shall enter into force on the 20th day following its publication in the Official Journal of the European Union.

It shall apply from 1 November 2009.

This Regulation shall be binding in its entirety and directly applicable in all Member States.