REPORT on the proposal for a directive of the European Parliament and of the Council on payment services in the internal market and amending Directives 2002/65/EC, 2013/36/EU and 2009/110/EC and repealing Directive 2007/64/EC

11.3.2014 - (COM(2013)0547 – C7‑0230/2013 – 2013/0264(COD)) - ***I

Committee on Economic and Monetary Affairs
Rapporteur: Diogo Feio

Amendments

Procedure : 2013/0264(COD)

Document stages in plenary

Document selected :

A7-0169/2014

Texts tabled :

A7-0169/2014

Debates :

PV 02/04/2014 - 26
CRE 02/04/2014 - 26

Votes :

PV 03/04/2014 - 7.4
CRE 03/04/2014 - 7.4
Explanations of votes

Texts adopted :

P7_TA(2014)0280

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION
OPINION of the Committee on Legal Affairs
PROCEDURE

DRAFT EUROPEAN PARLIAMENT LEGISLATIVE RESOLUTION

on the proposal for a directive of the European Parliament and of the Council on payment services in the internal market and amending Directives 2002/65/EC, 2013/36/EU and 2009/110/EC and repealing Directive 2007/64/EC

(COM(2013)0547 – C7‑0230/2013 – 2013/0264(COD))

(Ordinary legislative procedure: first reading)

The European Parliament,

– having regard to the Commission proposal to Parliament and the Council (COM(2013)0547),

– having regard to Article 294(2) and Article 114 of the Treaty on the Functioning of the European Union, pursuant to which the Commission submitted the proposal to Parliament (C7‑0230/2013),

– having regard to Article 294(3) of the Treaty on the Functioning of the European Union,

– having regard to the opinion of the European Central Bank of 5 February 2014[1],

– having regard to the opinion of the European Economic and Social Committee of 11 December 2013[2],

– having regard to Rule 55 of its Rules of Procedure,

– having regard to the report of the Committee on Economic and Monetary Affairs and the opinion of the Committee on Legal Affairs (A7-0169/2014),

1. Adopts its position at first reading hereinafter set out;

2. Calls on the Commission to refer the matter to Parliament again if it intends to amend its proposal substantially or replace it with another text;

3. Instructs its President to forward its position to the Council, the Commission and the national parliaments.

Amendment 1

Proposal for a directive

Recital 2

Text proposed by the Commission

Amendment

(2) Directive 2007/64/EC has been adopted in December 2007 on the basis of a Commission proposal of December 2005. Since then, the retail payments market has experienced significant technical innovations with the rapid growth in the number of electronic and mobile payments and the emergence of new types of payments services in the market place.

(2) Directive 2007/64/EC was adopted in December 2007 on the basis of a Commission proposal of December 2005. Since then, the retail payments market has experienced significant technical innovations with the rapid growth in the number of electronic and mobile payments and the emergence of new types of payments services in the market place, challenging the current framework.

Amendment 2

Proposal for a directive

Recital 3

Text proposed by the Commission

Amendment

(3) The review of the Union legal framework on payment services and notably the analysis of the impact of Directive 2007/64/EC and the consultation on the Commission Green Paper ‘Towards an integrated European market for card, internet and mobile payments’²⁴ have shown that developments have given rise to important challenges from a regulatory perspective. Important areas of the payments market, in particular card payments, internet and mobile payments are often still fragmented along national borders. Many innovative payment products or services do not fall, entirely or in large parts, under the scope of Directive 2007/64/EC. Furthermore, the scope of Directive 2007/64/EC and in particular, the elements excluded therefrom, as certain payment-related activities from the general rules, proved in a few cases too ambiguous, too general or simply outdated, taking into account the market developments. This has resulted in legal uncertainty, potential security risks in the payment chain and a lack of consumer protection in certain areas. For innovative and easy-to-use digital payment services it has proven to be difficult to take off and provide consumers and retailers with effective, convenient and secure payment methods in the Union.

(3) The review of the Union legal framework on payment services and notably the analysis of the impact of Directive 2007/64/EC and the consultation on the Commission Green Paper ‘Towards an integrated European market for card, internet and mobile payments’²⁴ have shown that developments have given rise to important challenges from a regulatory perspective. Important areas of the payments market, in particular card payments, internet and mobile payments are often still fragmented along national borders. Many innovative payment products or services do not fall, entirely or in large parts, under the scope of Directive 2007/64/EC. Furthermore, the scope of Directive 2007/64/EC and in particular, the elements excluded therefrom, as certain payment-related activities from the general rules, proved in a few cases too ambiguous, too general or simply outdated, taking into account the market developments. This has resulted in legal uncertainty, potential security risks in the payment chain and a lack of consumer protection in certain areas. For innovative, safe and easy-to-use digital payment services it has proven to be difficult to take off and provide consumers and retailers with effective, convenient and secure payment methods in the Union. There is a large positive potential in this which needs to be more consistently exploited.

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²⁴ COM(2012) 941 final.

Amendment 3

Proposal for a directive

Recital 4

Text proposed by the Commission

Amendment

(4) Establishing an integrated single market for electronic payments is crucial in order to ensure that consumers, merchants and companies enjoy the full benefits of the internal market, given the development of the digital economy.

(4) Establishing an integrated single market for safe electronic payments is crucial in order to support the growth of the Union economy and to ensure that consumers, merchants and companies enjoy choice and transparency of payment services to benefit from the full benefits of the internal market, given the development of the digital economy.

Amendment 4

Proposal for a directive

Recital 5

Text proposed by the Commission

Amendment

(5) New rules should be provided in order to close the regulatory gaps while at the same time providing for more legal clarity and ensuring a consistent application of the legislative framework across the Union. Equivalent operating conditions should be guaranteed to both existing and new players on the market, facilitating new means of payment to reach a broader market and ensuring a high level of consumer protection in the use of these payment services across the whole of the Union. This should lead to a downward trend in costs and prices for payment services users and more choice and transparency of payment services.

(5) New rules should be provided in order to close the regulatory gaps while at the same time providing for more legal clarity and ensuring a consistent application of the legislative framework across the Union. Equivalent operating conditions should be guaranteed to both existing and new players on the market, facilitating new means of payment to reach a broader market and ensuring a high level of consumer protection in the use of these payment services across the whole of the Union. This should generate efficiencies in the payment system as a whole and should lead to a downward trend in costs and prices for payment services users and more choice and transparency of payment services, while strengthening the trust of consumers in a harmonised payments market.

Amendment 5

Proposal for a directive

Recital 5 a (new)

Text proposed by the Commission

Amendment

(5a) The single euro payments area (‘SEPA’) will reach a major milestone in 2014 with the migration of national credit transfers and direct debits in euro to SEPA-compliant credit transfers and direct debits. The construction of an integrated, competitive, innovative and level-playing field market for euro retail payments in the euro area should be continued in order to achieve a truely internal market for payment services in the Union. This ongoing construction should be sustained by strengthened governance under the leadership of the European Central Bank (ECB). The announcement by the ECB of the creation of the euro retail payments board (ERPB) as successor to the SEPA Council, should contribute to and facilitate achieving that objective. The composition of the ERPB, taking into account a better balance between the interests of the supply and the demand side of the payment market should ensure effective advice as regards the orientation of the SEPA project in the future and potential obstacles towards its achievement, ways to address them and ways to foster innovation, competition and integration in retail payments in euro in the Union. The Commission participation as an observer should be envisaged in order to ensure that the tasks, composition and functioning of the ERPB contribute to the promotion of the SEPA project.

Amendment 6

Proposal for a directive

Recital 6

Text proposed by the Commission

Amendment

(6) In recent years, the security risks related electronic payments have increased, which is due to the greater technical complexity of electronic payments, the continuously growing volumes of electronic payments worldwide and the emerging types of payment services. As safe and secure payment services constitute a vital condition for a well-functioning payment services market, users of payment services should be adequately protected against such risks. Payment services are essential for the maintenance of vital economic and societal activities and therefore payment services providers such as credit institutions have been qualified as market operators according to Article 3(8) of Directive [pls insert number of NIS Directive after adoption] of the European Parliament and of the Council²⁵.

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²⁵ Directive XXXX/XX/EU of the European Parliament and of the Council of [date] concerning measures to ensure a high common level of network and information security across the Union (OJ L x, p x).

Amendment 7

Proposal for a directive

Recital 7

Text proposed by the Commission

Amendment

(7) In addition to the general measures to be taken at Member States’ level in Directive [pls insert number of NIS Directive after adoption], the security risks related to payment transactions should also be addressed at the level of the payment service providers. The security measures to be taken by the payment service providers need to be proportionate to the security risks concerned. A regular reporting mechanism should be established, so as to ensure payment services should provide the competent authorities on an annual basis with updated information on the assessment of their security risks and the (additional) measures that they have taken in response to these risks. Furthermore, in order to ensure that damages to other payment service providers and payment systems, such as a substantial disruption of a payment system and to users is kept to a minimum, it is essential that payment service providers have the obligation to report within undue delay major security incidents to the European Banking Authority.

(7) In addition to the general measures to be taken at Member States’ level in Directive [pls insert number of NIS Directive after adoption], the security risks related to the choice of technical system to offer payment transactions should also be addressed at the level of the payment service providers and for their cost and responsibility. The security measures to be taken by the payment service providers need to be in proportion to the security risks concerned for their clients. A regular reporting mechanism should be established, so as to ensure payment services should provide the competent authorities at least three times a year with updated information on the assessment of their security risks and the additional measures that they have taken in response to reduce these risks. Furthermore, in order to ensure that damages to other payment service providers and payment systems, such as a substantial disruption of a payment system and to users is kept to a minimum, it is essential that payment service providers have the obligation to report within undue delay major security incidents to the European Banking Authority, which should publish an annual report on the security of digital payment services in the Union..

Amendment 8

Proposal for a directive

Recital 7 a (new)

Text proposed by the Commission

Amendment

(7a) For consumers to understand their rights and obligations under this Directive, they should be informed in a clear and comprehensible way. Within two years of the entry into force of the Directive, the Commission should therefore produce a consumer friendly electronic leaflet listing, in a clear and easily comprehensible manner, the rights and obligations of consumers laid down in this Directive and in related Union law on payment services. That information should be made available on the websites of the Commission, the European Supervisory Authority (European Banking Authority) ('EBA'), established by Regulation (EU) No 1093/2010 of the European Parliament and of the Council^1a, and national banking regulators. The Member States shall ensure that payment services providers will make the leaflet in its original format available, free of charge, to all their existing and new clients electronically on their websites and on paper at their branches, their agents and the entities to which their activities are outsourced.

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^1a Regulation (EU) No 1093/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Banking Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/78/EC (OJ L 331, 15.12.2010, p. 12).

Amendment 9

Proposal for a directive

Recital 8

Text proposed by the Commission

Amendment

(8) The revised regulatory framework for payment services is complemented by Regulation (EU) [XX/XX/XX] of the European Parliament and of the Council²⁶. That Regulation introduces rules with regard to the charging of multilateral and bilateral interchange fees for all consumer debit and credit card transactions and electronic and mobile payments based on those transactions, and puts restrictions on the use of certain business rules with regard to card transactions. That Regulation aims at further accelerating the achievement of an effective integrated market for card based payments.

(8) The revised regulatory framework for payment services is complemented by Regulation (EU) [XX/XX/XX] of the European Parliament and of the Council²⁶. That Regulation introduces rules with regard to the charging of multilateral and bilateral interchange fees for all consumer debit and credit card transactions and electronic and mobile payments based on those transactions thus removing an important barrier between national payment markets, and puts restrictions on the use of certain business rules with regard to card transactions. That Regulation aims at further accelerating the achievement of an effective integrated market for card based payments.

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²⁶ Regulation (EU) No [XX/XX/XX/] of the European Parliament and of the Council [date] on interchange fees for card-based payment transactions (OJ L x, p. x).

Amendment 10

Proposal for a directive

Recital 9

Text proposed by the Commission

Amendment

(9) In order to avoid divergent approaches across Member States to the detriment of consumers, the provisions on transparency and information requirements for payment service providers in this Directive should also apply to transactions where the payer's or payee's payment service provider is located within the European Economic Area (hereinafter ‘EEA’) and the other payment service provider is located outside the EEA. It is also appropriate to extend the application of transparency and information provisions to transactions in all currencies between payment service providers that are located within the EEA.

(9) In order to avoid divergent approaches across Member States to the detriment of consumers, the provisions on transparency and information requirements for payment service providers and on rights and obligations in relation to the provision and use of payment services in this Directive should also apply to transactions where the payer's or payee's payment service provider is located within the European Economic Area (hereinafter ‘EEA’) and the other payment service provider is located outside the EEA. On the basis of a Commission review and, if appropriate, a legislative proposal, the application of this Directive to such transactions should also be extended to include the major part of the provisions on rights and obligations in relation to providing and using payment services. It is also appropriate to extend the application of transparency and information provisions to transactions in all currencies between payment service providers that are located within the EEA.

Amendment 11

Proposal for a directive

Recital 10

Text proposed by the Commission

Amendment

(10) The definition of payment services should be technologically neutral and allow for the further development of new types of payment services, while ensuring equivalent operating conditions for both existing and new payment service providers.

(10) The definitions of payment services, payment protocols and standards should be technologically neutral and allow for the further development of new types of payment services, while ensuring equivalent safe operating conditions for both existing and new payment service providers.

Amendment 12

Proposal for a directive

Recital 12

Text proposed by the Commission

Amendment

(12) Feedback from the market shows that the payment activities covered by the limited network exception often comprise massive payment volumes and values and offer to consumers hundreds or thousands of different products and services, which does not fit the purpose of the limited network exemption as provided for in Directive 2007/64/EC. That implies greater risks and no legal protection for payment service users, in particular for consumers and clear disadvantages for regulated market actors. A more precise description of a limited network, in line with Directive 2009/110/EC, is necessary in order to limit those risks. A payment instrument should thus be considered to be used within such a limited network if it can be used only either for the purchase of goods and services in a specific store or chain of stores, or for a limited range of goods or services, regardless of the geographical location of the point of sale. Such instruments could include store cards, petrol cards, membership cards, public transport cards, meal vouchers or vouchers for specific services, which are sometimes subject to a specific tax or labour legal framework designed to promote the use of such instruments to meet the objectives laid down in social legislation. Where such a specific-purpose instrument develops into a general purpose instrument, the exemption from the scope of this Directive should no longer apply. Instruments which can be used for purchases in stores of listed merchants should not be exempted from the scope of this Directive as such instruments are typically designed for a network of service providers which is continuously growing. The exemption should apply in combination with the obligation of potential payment service providers to notify activities falling within the scope of the definition of a limited network.

(12) Feedback from the market shows that the payment activities covered by the limited network exception often comprise massive payment volumes and values and offer to consumers hundreds or thousands of different products and services, which does not fit the purpose of the limited network exemption as provided for in Directive 2007/64/EC. That implies greater risks and no legal protection for payment service users, in particular for consumers and clear disadvantages for regulated market actors. A more precise description of a limited network, in line with Directive 2009/110/EC, is necessary in order to limit those risks. A payment instrument should thus be considered to be used within such a limited network if it can be used only either for the purchase of goods and services with a specific retailer or retail chain, or for a limited range of goods or services, regardless of the geographical location of the point of sale. Such instruments could include store cards, petrol cards, membership cards, public transport cards, parking ticketing, meal vouchers or vouchers for specific services, which are sometimes subject to a specific tax or labour legal framework designed to promote the use of such instruments to meet the objectives laid down in social legislation. Where such a specific-purpose instrument develops into a general purpose instrument, the exemption from the scope of this Directive should no longer apply. Instruments which can be used for purchases in stores of listed merchants should not be exempted from the scope of this Directive as such instruments are typically designed for a network of service providers which is continuously growing. The exemption should apply in combination with the obligation of potential payment service providers to notify activities falling within the scope of the definition of a limited network.

Amendment 13

Proposal for a directive

Recital 13

Text proposed by the Commission

Amendment

(13) Directive 2007/64/EC exempts from its scope certain payment transactions by means of telecom or information technology devices where the network operator not only acts as an intermediary for the delivery of digital goods and services through the device in question, but also adds value to these goods or services. In particular, this exemption allows for so called operator billing or direct to phone-bill purchases which, starting with ringing tones and premium SMS-services, contributes to the development of new business models based on low-value sale of digital content. Feedback from the market shows no evidence that this payment method, trusted by consumers as convenient for low threshold payments, has developed into a general payment intermediation service. However, due to the ambiguous wording of the current exemption, this rule has been implemented differently in Member States. This translates into lack of legal certainty for operators and consumers and has occasionally allowed other payment intermediation services to claim eligibility for the exemption of the application of Directive 2007/64/EC. It is therefore appropriate to narrow down the scope of that Directive. The exemption should focus specifically on micro-payments for digital content, such as ringtones, wallpapers, music, games, videos, or applications. The exemption should only apply to payment services when provided as ancillary services to electronic communications services (i.e. the core business of the operator concerned).

(13) Directive 2007/64/EC exempts from its scope certain payment transactions by means of telecom or information technology devices where the network operator not only acts as an intermediary for the delivery of digital goods and services through the device in question, but also adds value to these goods or services. In particular, this exemption allows for so called operator billing or direct to phone-bill purchases which, starting with ringing tones and premium SMS-services, contributes to the development of new business models based on low-value sale of digital content. Feedback from the market shows no evidence that this payment method, trusted by consumers as convenient for low threshold payments, has developed into a general payment intermediation service. However, due to the ambiguous wording of the current exemption, this rule has been implemented differently in Member States. This translates into lack of legal certainty for operators and consumers and has occasionally allowed other payment intermediation services to claim eligibility for the exemption of the application of Directive 2007/64/EC. It is therefore appropriate to narrow down the negative scope of that Directive. In order not to leave large-scale payment activities unregulated, the exemption should focus on micro-payments for digital content, such as ringtones, wallpapers, music, games, videos, or applications. The exemption should only apply to payment services when provided as ancillary services to electronic communications services (i.e. the core business of the operator concerned).

Amendment 14

Proposal for a directive

Recital 13 a (new)

Text proposed by the Commission

Amendment

(13a) Directive 2007/64/EC exempts from its scope the technical service providers which support the provision of payment services without at any time entering into the holding of funds to be transferred. Typical services that fall within the scope of that exemption are processing and storage of data, privacy protection services and IT technology. As such, the exemption also covers the development of technical payment solutions to payment service providers (sometimes referred to as 'digital wallets'), typically making their payment services accessible on a mobile or IT device.

Amendment 15

Proposal for a directive

Recital 15

Text proposed by the Commission

Amendment

(15) Service providers seeking to benefit from an exemption under Directive 2007/64/EC often do not consult authorities on whether their activities are covered or exempted under that Directive but rely on their own assessments. It appears that some exemptions may have been used by payment service providers to redesign business models so that the payment activities offered would be outside the scope of that Directive. This may result in increased risks for payment service users and diverging conditions for payment service providers in the internal market. Service providers should therefore be obliged to notify certain activities to the competent authorities, to ensure a homogenous interpretation of the rules throughout the internal market.

(15) Service providers seeking to benefit from an exemption under Directive 2007/64/EC often do not consult authorities on whether their activities are covered or exempted under that Directive but rely on their own assessments. It appears that some exemptions may have been used by payment service providers to redesign business models so that the payment activities offered would be outside the scope of that Directive. This may result in increased risks for payment service users and diverging conditions for payment service providers in the internal market. Service providers should therefore be obliged to notify their activities to the competent authorities, to ensure a homogenous interpretation of the rules throughout the internal market.

Amendment 16

Proposal for a directive

Recital 18

Text proposed by the Commission

Amendment

(18) Since the adoption of Directive 2007/64/EC new types of payment services have emerged, especially in the area of internet payments. In particular, third party providers (hereinafter ‘TPPs’) have evolved, offering so-called payment initiation services to consumers and merchants, often without entering into the possession of the funds to be transferred. Those services facilitate the e-commerce payments by establishing a software bridge between the website of the merchant and the online banking platform of the consumer in order to initiate internet payments on the basis of credit transfers or direct debits. The TPPs offer a low-cost alternative to card payments for both merchants and consumers and provide consumers a possibility to shop online even if they do not possess credit cards. However, as TPPs are currently not subject to Directive 2007/64/EC, they are not necessarily supervised by a competent authority and do not follow the requirements of Directive 2007/64/EC. This raises a series of legal issues, such as consumer protection, security and liability as well as competition and data protection issues. The new rules should therefore respond to those issues.

(18) Since the adoption of Directive 2007/64/EC new types of payment services have emerged, especially in the area of internet payments. In particular, third party providers (hereinafter ‘TPPs’) have evolved, offering so-called payment initiation services to consumers and merchants, often without entering into the possession of the funds to be transferred. Those services facilitate the e-commerce payments by establishing a software bridge between the website of the merchant and the online banking platform of the consumer in order to initiate internet payments on the basis of credit transfers or direct debits. The TPPs offer a low-cost alternative to card payments for both merchants and consumers and provide consumers a possibility to shop online even if they do not possess payment cards. TPPs also have a promising potential when it comes to facilitating cross-border e-commerce in the internal market. TPPs also represent important security challenges to the safeguarding of the integrity of payments and personal data made available to them by payers. However, as TPPs are currently not subject to Directive 2007/64/EC, they are not necessarily supervised by a competent authority and do not follow the requirements of Directive 2007/64/EC. This raises a series of legal issues, such as consumer protection, security and liability as well as competition and data protection issues. The new rules should therefore address all those challenges appropriately and ensure that TPPs operating in the Union are licensed or registered and supervised as payment institutions.

Amendment 17

Proposal for a directive

Recital 19

Text proposed by the Commission

Amendment

(19) Money remittance is a simple payment service that is usually based on cash provided by a payer to a payment service provider, which remits the corresponding amount, for example via communication network, to a payee or to another payment service provider acting on behalf of the payee. In some Member States supermarkets, merchants and other retailers provide to the public a corresponding service enabling the payment of utility and other regular household bills. Those bill-paying services should be treated as money remittance, unless the competent authorities consider the activity to fall under another payment service.

(19) Money remittance is a simple payment service that is usually based on cash provided by a payer to a payment service provider, which remits the corresponding amount, for example via communication network, to a payee or to another payment service provider acting on behalf of the payee. In some Member States automated teller machines (ATMs), supermarkets, merchants and other retailers provide to the public a corresponding service enabling the payment of utility and other regular household bills. Those bill-paying services should be treated as money remittance, unless the competent authorities consider the activity to fall under another payment service.

Amendment 18

Proposal for a directive

Recital 19 a (new)

Text proposed by the Commission

Amendment

(19a) To complete the internal market in payments and to ensure that it is conducive to a striving electronic commerce and to economic growth, it is important to allow potential new entrants and current payment service providers alternatives to card payments in order to develop and enhance their services to consumers and retailers. Therefore, EBA, in close cooperation with the ECB, shall, within two years of the entry into force of this Directive, provide a comprehensive assessment of the feasibility and desirability of introducing a requirement of making the IBAN, as defined in Article 2(15) of Regulation (EU) No 260/2012, or a similar identifier, available in an electronically readable format on debit cards, and on other payment instruments, as appropriate. The assessment shall take into consideration the rules concerning fraud prevention and data protection.

Amendment 19

Proposal for a directive

Recital 27

Text proposed by the Commission

Amendment

(27) Payment service providers when engaging in the provision of one or more of the payment services covered by this Directive should always hold payment accounts used exclusively for payment transactions. For payment institutions to be able to provide payment services, it is indispensable that they have access to payment accounts. Member States should ensure that such access is non-discriminatory and provided in a way proportionate to the legitimate aim it intends to serve. While the access could be basic, it should always be extensive enough for the payment institution to be able to provide its services in an unobstructed and efficient way. The fees charged for such access should not be unreasonable or out of line with standard business practice.

Justification

Payment accounts are a vital part of basic infrastructure in society. While actors providing accounts should of course be able to do so on a commercial basis, there has to be some core restrictions on how they run their business. It is not acceptable if they use their gateway power to block other actors by denying access or demanding excessive fees. Since there have been a number of such incidents, there is a need to clarify that all PSPs must be granted non-discriminatory access to accounts.

Amendment 20

Proposal for a directive

Recital 29

Text proposed by the Commission

Amendment

(29) Overall, the functioning of the cooperation between the competent national authorities responsible for granting authorisations to payment institutions, carrying out controls and deciding on the withdrawal of those authorisations, has proven to work satisfactorily. However, the cooperation between the competent authorities should be enhanced, both with regard to the information exchanged as well as a coherent application and interpretation of the Directive, in cases where the authorised payment institution would like to provide payment services also in a Member State other than its home Member State, in exercise of the right of establishment or the freedom to provide services (‘passporting’). The European Banking Authority (EBA) should be asked to prepare a set of guidelines on the cooperation and data exchange.

(29) Overall, the functioning of the cooperation between the competent national authorities responsible for granting authorisations to payment institutions, carrying out controls and deciding on the withdrawal of those authorisations, has proven to work satisfactorily. However, the cooperation between the competent authorities should be enhanced, both with regard to the information exchanged as well as a coherent application and interpretation of the Directive, in cases where the authorised payment institution would like to provide payment services also in a Member State other than its home Member State, in exercise of the right of establishment or the freedom to provide services (‘passporting’). EBA, should prepare a set of guidelines on the cooperation and data exchange after consulting an advisory panel set up for the purposes of implementation of this Directive in accordance with Regulation (EU) No 1093/2010 and representing, inter alia, stakeholders operating outside the banking industry.

Amendment 21

Proposal for a directive

Recital 30

Text proposed by the Commission

Amendment

(30) To enhance transparency on the payment institutions authorised by or registered with competent authorities, including their agents and branches, a web portal serving as European electronic access point should be established with EBA, interconnecting the national registers. These measures should aim at contributing to the enhancement of the cooperation between the competent authorities.

Amendment 22

Proposal for a directive

Recital 32

Text proposed by the Commission

Amendment

(32) While this Directive specifies the minimum set of powers competent authorities should have when supervising the compliance of payment institutions, these powers are to be exercised with respect to fundamental rights, including the right to privacy. For the exercise of those powers which may amount to serious interferences with the right to respect private and family life, home and communications, Member States should have in place adequate and effective safeguards against any abuse or arbitrariness, for instance, where appropriate through prior authorisation from the judicial authority of the Member State concerned.

(32) While this Directive specifies the minimum set of powers competent authorities should have when supervising the compliance of payment institutions, these powers are to be exercised with respect to fundamental rights, including the right to privacy. Without prejudice to the control of an independent authority (national data protection authority) under Article 8(3) of the Charter of Fundamental Rights of the European Union, for the exercise of those powers which may amount to serious interferences with the right to respect private and family life, home and communications, Member States should have in place adequate and effective safeguards against any abuse or arbitrariness, for instance, where appropriate through prior authorisation from the judicial authority of the Member State concerned.

Amendment 23

Proposal for a directive

Recital 34

Text proposed by the Commission

Amendment

(34) It is essential for any payment service provider to be able to access the services of technical infrastructures of payment systems. Such access should, however, be subject to appropriate requirements in order to ensure integrity and stability of those systems. Each payment service provider applying for a participation in a payment system should furnish proof to the participants of the payment system that its internal arrangements are sufficiently robust against all kinds of risk. These payment systems typically include e.g. the four-party card schemes as well as major systems processing credit transfers and direct debits. In order to ensure equality of treatment throughout the Union as between the different categories of authorised payment service providers, according to the terms of their licence, it is necessary to clarify the rules concerning access to the provision of payment services and access to payment systems.

(34) It is essential for any payment service provider to be able to access the services of technical infrastructures of payment systems. Such access should, however, be subject to appropriate requirements in order to ensure integrity and stability of those systems. Each payment service provider applying for a participation in a payment system should bear the risk of its own choice of system and furnish proof to the participants of the payment system that its internal arrangements are sufficiently robust against all kinds of risk and fraudulent misuse by a third party due to the choice of operating systems. These payment systems typically include e.g. the four-party card schemes as well as major systems processing credit transfers and direct debits. In order to ensure equality of treatment throughout the Union as between the different categories of authorised payment service providers, according to the terms of their licence, it is necessary to clarify the rules concerning access to the provision of payment services and access to payment systems.

Amendment 24

Proposal for a directive

Recital 41

Text proposed by the Commission

Amendment

(41) This Directive should specify the obligations on payment service providers as regards the provision of information to the payment service users who should receive the same high level of clear information about payment services in order to make well-informed choices and be able to choose freely within the Union. In the interest of transparency this Directive should lay down the harmonised requirements needed to ensure that necessary and sufficient information is given to the payment service users with regard to the payment service contract and the payment transactions. In order to promote smooth functioning of the single market in payment services, Member States should be able to adopt only those information provisions laid down in this Directive.

(41) This Directive should specify the obligations on payment service providers as regards the provision of information to the payment service users who should receive the same high level of clear information about payment services in order to make well-informed choices based on a comparison of the conditions of the various providers (particularly regarding their charges structure) and be able to choose freely within the Union. In the interest of transparency this Directive should lay down the harmonised requirements needed to ensure that necessary, sufficient and comprehensible information is given to the payment service users with regard to the payment service contract and the payment transactions. In order to promote smooth functioning of the single market in payment services, Member States should be able to adopt only those information provisions laid down in this Directive, as well as under Directive 95/46/EC and Regulation EC No 45/2001.

Amendment 25

Proposal for a directive

Recital 43

Text proposed by the Commission

Amendment

(43) The information required should be proportionate to the needs of users and communicated in a standard format. However, the information requirements for a single payment transaction should be different from those of a framework contract which provides for the series of payment transactions.

(43) The information required should be proportionate to the needs of users and communicated in a standard and clear format, enhancing efficiency. However, the information requirements for a single payment transaction should be different from those of a framework contract which provides for the series of payment transactions.

Amendment 26

Proposal for a directive

Recital 46

Text proposed by the Commission

Amendment

(46) This Directive should provide for the consumer’s right to receive relevant information free of charge before being bound by any payment service contract. The consumer should also be able to request prior information as well as the framework contract, on paper, free of charge at any time during the contractual relationship, so as to enable them to compare payment service providers’ services and their conditions and in case of any dispute verify their contractual rights and obligations. Those provisions should be compatible with Directive 2002/65/EC. The explicit provisions on free information in this Directive should not have the effect of allowing charges to be imposed for the provision of information to consumers under other applicable Directives.

(46) This Directive should provide for the consumer’s right to receive relevant information free of charge before being bound by any payment service contract. The consumer should also be able to request prior information as well as the framework contract, on paper, free of charge at any time during the contractual relationship, so as to enable them to compare payment service providers’ services and their conditions and in case of any dispute verify their contractual rights and obligations, therefore maintaining a high level of consumer protection. Those provisions should be compatible with Directive 2002/65/EC. The explicit provisions on free information in this Directive should not have the effect of allowing charges to be imposed for the provision of information to consumers under other applicable Directives.

Amendment 27

Proposal for a directive

Recital 49

Text proposed by the Commission

Amendment

(49) In order to facilitate customer mobility, it should be possible for consumers to terminate a framework contract after a year without incurring charges. For consumers, the period of notice agreed should be no longer than a month, and for payment service providers no shorter than two months. This Directive should be without prejudice to the payment service provider’s obligation to terminate the payment service contract in exceptional circumstances under other relevant Union or national legislation, such as legislation on money laundering and terrorist financing, any action targeting the freezing of funds, or any specific measure linked to the prevention and investigation of crimes.

(49) In order to facilitate customer mobility, it should be possible for consumers to terminate a framework contract without incurring charges. For consumers, the period of notice agreed should be no longer than a month, and for payment service providers no shorter than three months. This Directive should be without prejudice to the payment service provider’s obligation to terminate the payment service contract in exceptional circumstances under other relevant Union or national legislation, such as legislation on money laundering and terrorist financing, any action targeting the freezing of funds, or any specific measure linked to the prevention and investigation of crimes.

Amendment 28

Proposal for a directive

Recital 51

Text proposed by the Commission

Amendment

(51) It is necessary to set up the criteria under which TPPs are allowed to access and use the information on the availability of funds on the payment service user account held with another payment service provider. In particular, necessary data protection and security requirements set or referred to in this Directive or included in the EBA guidelines should be fulfilled by both the TPP and the payment service provider servicing the account of the payment service user. The payers should give an explicit consent to the TPP to access their payment account and be properly informed about the extent of this access. To allow the development of other payment services providers which cannot receive deposits, it is necessary that credit institutions provide them with the information on the availability of funds if the payer has given consent for this information to be communicated to the payment service provider issuer of the payment instrument.

(51) It is necessary to set up the criteria under which TPPs are allowed to access and use the information on the availability of funds on the payment service user’s account held with another payment service provider. In particular, necessary data protection and security requirements set or referred to in this Directive or included in EBA implementing technical standards should be fulfilled by both the TPP and the payment service provider servicing the account of the payment service user. EBA should develop those implementing technical standards after consulting the advisory panel referred to in Recital 29. Payers should be informed unequivocally where they are using a TPP and should give explicit consent to the TPP to access their payment account and be properly informed about the extent of this access. In addition to TPPs, there are other third-party payment instrument issuers in the market which, like TPPs, cannot receive deposits but which, unlike TPPs, build their business models on the issuance of card-based payment instruments. In order to allow for the development of those third-party payment instrument issuers, it is necessary that account servicing payment service providers provide them with the information on the availability of funds if the payer has given consent for this information to be communicated to them. To ensure free access to the market by innovative payment service providers, no contract or agreement between an account servicing payment service provider and a TPP should be required.

Amendment 29

Proposal for a directive

Recital 51 a (new)

Text proposed by the Commission

Amendment

(51a) To facilitate innovation and the maintenance of a level playing field, TPPs should not be required to enter into contractual relationships with account servicing payment service providers in the context of payment initiation or account information services. TPPs should only be required to comply with the general legislative and supervisory framework.

Amendment 30

Proposal for a directive

Recital 54

Text proposed by the Commission

Amendment

(54) In the case of unauthorized payment transactions the payer should be refunded immediately the amount of the respective transaction. In order to prevent the payer from any disadvantages, the credit value date of the refund should not be later than the date when the respective amount has been debited. In order to provide an incentive for the payment service user to notify, without undue delay, the provider of any theft or loss of a payment instrument and thus to reduce the risk of unauthorised payment transactions, the user should be liable only for a very limited amount, unless the payment service user has acted fraudulently or with gross negligence. In this context an amount of EUR 50 seems to be adequate in order to ensure a harmonized and a high level user protection within the Union. Moreover, once users have notified a payment service provider that their payment instrument may have been compromised, the users should not be required to cover any further losses stemming from unauthorised use of that instrument. This Directive should be without prejudice to the payment service providers' responsibility for technical security of their own products.

(54) In the case of unauthorized payment transactions the payer should, within one working day, be refunded the amount of the respective transaction. In order to prevent the payer from any disadvantages, the credit value date of the refund should not be later than the date when the respective amount has been debited. Where this is no longer technically possible, the payer should also be compensated for loss of interest. In order to provide an incentive for the payment service user to notify, without undue delay, the provider of any theft or loss of a payment instrument and thus to reduce the risk of unauthorised payment transactions, the user should be liable only for a very limited amount, unless the payment service user has acted fraudulently or with gross negligence. In this context an amount of EUR 50 seems to be adequate in order to ensure a harmonized and a high level user protection within the Union. Moreover, once users have notified a payment service provider that their payment instrument may have been compromised, the users should not be required to cover any further losses stemming from unauthorised use of that instrument. This Directive should be without prejudice to the payment service providers' responsibility for technical security of their own products.

Amendment 31

Proposal for a directive

Recital 57

Text proposed by the Commission

Amendment

(57) This Directive should lay down rules for a refund to protect the consumer when the executed payment transaction exceeds the amount which could reasonably have been expected. In order to prevent a financial disadvantage for the payer, it needs to be ensured that the credit value date of any refund is no later than the date when the respective amount has been debited. In the case of direct debits payment service providers should be able to provide even more favourable terms to their customers, who should have an unconditional right to a refund of any disputed payment transactions. However, this unconditional refund right which ensures the highest level of consumer protection is not justified in cases where the merchant has already fulfilled the contract and the corresponding good or service has already been consumed. In cases where the user makes a claim for the refund of a payment transaction refund rights should affect neither the liability of the payer vis-à-vis the payee from the underlying relationship, e.g. for goods or services ordered, consumed or legitimately charged, nor the users rights with regard to revocation of a payment order.

(57) This Directive should lay down rules for a refund to protect the consumer when the executed payment transaction exceeds the amount which could reasonably have been expected. In order to prevent a financial disadvantage for the payer, it needs to be ensured that the credit value date of any refund is no later than the date when the respective amount has been debited. Where this is no longer technically possible, the payer should also be compensated for loss of interest. In the case of direct debits payment service providers should be able to provide even more favourable terms to their customers, who should have an unconditional right to a refund of any disputed payment transactions. In cases where the user makes a claim for the refund of a payment transaction refund rights should affect neither the liability of the payer vis-à-vis the payee from the underlying relationship, e.g. for goods or services ordered, consumed or legitimately charged, nor the users rights with regard to revocation of a payment order.

Amendment 32

Proposal for a directive

Recital 63

Text proposed by the Commission

Amendment

(63) Different national practices concerning charging for the use of a given payment instrument (hereinafter ‘surcharging’) have led to extreme heterogeneity of the Union’s payments market and become a source of confusion for consumers, in particular in the e-commerce and cross-border context. Merchants located in Member States where surcharging is allowed offer products and services in Member States where it is prohibited and in this case still surcharge the consumer. Moreover, a strong rationale for revision of surcharging practices is supported by the fact that Regulation (EU) No xxx/yyyy establishes rules for multilateral interchange fees for card-based payments. As interchange fees are the main element making most card payments expensive and surcharging is in practice limited to card-based payments, the rules on interchange fees should be accompanied by a revision of surcharging rules. In order to promote cost transparency and the use of the most efficient payment instruments, Member States and payment service providers should not prevent the payee from requesting a charge from the payer for using a specific payment instrument, duly taking into account the provisions set out in Directive 2011/83/EU. However, the right of the payee to request a surcharge should only apply to those payment instruments for which interchange fees are not regulated. This should act as a steering mechanism towards the cheapest means of payments.

(63) Different national practices concerning charging for the use of a given payment instrument (hereinafter ‘surcharging’) have led to extreme heterogeneity of the Union’s payments market and become a source of confusion for consumers, in particular in the e-commerce and cross-border context. Merchants located in Member States where surcharging is allowed offer products and services in Member States where it is prohibited and in this case still surcharge the consumer. There are also many examples of merchants having surcharged consumers at levels much higher than the cost borne by the merchant for the use of a specific payment instrument. Moreover, a strong rationale for revision of surcharging practices is supported by the fact that Regulation (EU) No xxx/yyyy establishes rules for multilateral interchange fees for card-based payments. As interchange fees are the main element making most card payments expensive and surcharging is in practice limited to card-based payments, the rules on interchange fees should be accompanied by a revision of surcharging rules. In order to enhance the functioning of the Union’s payment market, to reduce the confusion for consumers and to end the practice of excessive surcharging, Member States should ban surcharging by consistently preventing payees from requesting a charge from the payer for using a specific payment instrument.

Amendment 33

Proposal for a directive

Recital 66

Text proposed by the Commission

Amendment

(66) It is essential for payment service users to know the real costs and charges of payment services in order to make their choice. Accordingly, the use of non-transparent pricing methods should not be allowed, since it is commonly accepted that those methods make it extremely difficult for users to establish the real price of the payment service. Specifically, the use of value dating to the disadvantage of the user should not be permitted.

(66) In order to strengthen the trust of consumers in a harmonised payment market it is essential for payment service users to know the real costs and charges of payment services in order to make their choice. Accordingly, the use of non-transparent pricing methods should not be allowed, since it is commonly accepted that those methods make it extremely difficult for users to establish the real price of the payment service. Specifically, the use of value dating to the disadvantage of the user should not be permitted.

Amendment 34

Proposal for a directive

Recital 68

Text proposed by the Commission

Amendment

(68) The payer’s payment service provider should assume liability for correct payment execution, including, in particular the full amount of the payment transaction and execution time, and full responsibility for any failure by other parties in the payment chain up to the account of the payee. As a result of that liability the payment service provider of the payer should, where the full amount is not or only late credited to the payee’s payment service provider, correct the payment transaction or without undue delay refund to the payer the relevant amount of that transaction, without prejudice to any other claims which may be made in accordance with national law. Due to the payment service provider’s liability, the payer or payee should not be burdened with any costs related to the incorrect payment. In case of non-execution, defective or late execution of payment transactions, Member States should ensure that the value date of corrective payments of payment service providers is always the same as the value date in case of correct execution.

(68) The payer’s payment service provider, being the account servicing payment service provider or, where appropriate, the TPP, should assume liability for correct payment execution, including, in particular the full amount of the payment transaction and execution time, and full responsibility for any failure by other parties in the payment chain up to the account of the payee. As a result of that liability the payment service provider of the payer should, where the full amount is not or only late credited to the payee’s payment service provider, correct the payment transaction or without undue delay refund to the payer the same day as the payment service provider became aware of the error, the relevant amount of that transaction, without prejudice to any other claims which may be made in accordance with national law. Due to the payment service provider’s liability, the payer or payee should not be burdened with any costs related to the incorrect payment. In case of non-execution, defective or late execution of payment transactions, Member States should ensure that the value date of corrective payments of payment service providers is always the same as the value date in case of correct execution. Opponents of unconditional refund stress a risk of abuse by consumers. There is no evidence of abuse of that right from countries where consumers enjoy an unconditional refund. Any abuse could be penalised as renewed payment claim by the payee, extra costs paid by the party which has caused that R-transaction, the consumer being blacklisted or banned to use the service by cancellation of the underlying contract, and a recall of a payment would not relieve the duty to pay for the consumed goods.

Amendment 35

Proposal for a directive

Recital 71

Text proposed by the Commission

Amendment

(71) In order to facilitate effective fraud prevention and combat payment fraud across the Union, provision should be made for the efficient exchange of data between payment service providers who should be allowed to collect, process and exchange personal data relating to persons involved in payment fraud. Directive 95/46/EC of the European Parliament and of the Council³⁷, the national rules which transpose Directive 95/46/EC and Regulation (EC) No 45/2001 of the European Parliament and of the Council³⁸ are applicable to the processing of personal data for the purposes of this Directive.

(71) Provision of payment services may entail processing of personal data. Directive 95/46/EC of the European Parliament and of the Council³⁷, the national rules which transpose Directive 95/46/EC and Regulation (EC) No 45/2001 of the European Parliament and of the Council³⁸ are applicable to the processing of personal data for the purposes of this Directive.

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³⁷ Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (OJ L 281, 23.11.1995, p. 31).

³⁸ Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 on the protection of individuals with regard to the processing of personal data by the Community institutions and bodies and on the free movement of such data (OJ L 8, 12.01.2001, p.1).

Amendment 36

Proposal for a directive

Recital 72 a (new)

Text proposed by the Commission

Amendment

(72a) The security incidents reporting obligations are without prejudice to other incident reporting obligations laid down in other legislative acts, in particular the personal data breaches requirements laid down in Directive 2002/58/EC, in Regulation (EU) No [General Data Protection Regulation] and in the security incidents notification requirements planned under Directive .../.../EU [Directive on Network and Information Security]).

Justification

Based on a proposal from European Data Protection Supervisor.

Amendment 37

Proposal for a directive

Recital 74

Text proposed by the Commission

Amendment

(74) Without prejudice to the right of customers to bring action in the courts, Member States should ensure an easily accessible and cost-sensitive out-of-court resolution of conflicts between payment service providers and consumers arising from the rights and obligations set out in this Directive. Regulation (EC) No 593/2008 of the European Parliament and of the Council⁴⁰ provides that the protection afforded to consumers by the mandatory rules of the law of the country in which they have their habitual residence may not be undermined by any contractual terms on law applicable. With regard to establishing an efficient and effective dispute resolution procedure, Member States should ensure that payment service providers put in place an effective consumer complaint procedure that can be followed by their consumers before the dispute is referred to be resolved in an out-of-court procedure or before court. The complaints procedure should contain short and clearly defined timeframes within which the payment service provider should reply to a complaint.

(74) Without prejudice to the right of customers to bring action in the courts, Member States should ensure that easily accessible, independent, impartial, transparent and effective out-of-court procedures are established and maintained for the resolution of disputes between payment service providers and payment service users arising from the rights and obligations set out in this Directive. Regulation (EC) No 593/2008 of the European Parliament and of the Council⁴⁰ provides that the protection afforded to consumers by the mandatory rules of the law of the country in which they have their habitual residence may not be undermined by any contractual terms on law applicable. With regard to establishing an efficient and effective dispute resolution procedure, Member States should ensure that payment service providers put in place an effective complaint procedure that can be followed by their payment service users before the dispute is referred to be resolved in an out-of-court procedure or before court. The complaints procedure should contain short and clearly defined timeframes within which the payment service provider should reply to a complaint.

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⁴⁰ Regulation (EC) No 593/2008 of the European parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (ROME I) (OJ L 177, 4.7.2008, p.6).

Justification

The demands on out-of-court procedures should be strict. Out-of-court and complaints procedures should not necessarily be available only to consumers, but could also be made available to other payment service users.

Amendment 38

Proposal for a directive

Recital 74 a (new)

Text proposed by the Commission

Amendment

(74a) In the light of the ECB's commitment to establish and chair the ERPB and of the Commission's commitment to participate actively in the ERPB, the Commission should ensure that SEPA governance is strengthened without undue delay after entry into force of this Directive. It should ensure that the Union method is applied where possible and, at the same time, that ownership by stakeholders, on the supply and on the demand side is sought through active involvement, consultation and full transparency. In particular, payment service providers and users should be represented on the same footing, ensuring active involvement of stakeholders, contributing to sufficient communication of the SEPA process to end-users and monitoring the implementation of the SEPA process.

Amendment 39

Proposal for a directive

Recital 80

Text proposed by the Commission

Amendment

(80) In order to ensure consistent application of this Directive, the Commission should be able to rely on the expertise and support of EBA, which should have the task to elaborate guidelines and prepare regulatory technical standards on security aspects regarding payment services, and on the cooperation between Member States in the context of the provision of services and establishment of authorised payment institutions in other Member States. The Commission should be empowered to adopt those regulatory technical standards. These specific tasks are fully in line with the role and responsibilities of EBA defined in Regulation (EU) No 1093/2010, under which the EBA has been set up.

(80) In order to ensure consistent application of this Directive, the Commission should be able to rely on the expertise and support of EBA, which should have the task to prepare implementing technical standards on security aspects regarding payment services, and on the cooperation between Member States in the context of the provision of services and establishment of authorised payment institutions in other Member States. Where those implementing technical standards concern security aspects of payments, EBA shall also take account of the recommendations adopted by the European Forum on the Security of Retail Payments (SecurePay Forum) regarding security of internet payments and payment account access services. When fulfilling those requirements EBA should consult the advisory panel referred to in Recital 29. The Commission should be empowered to adopt those implementing technical standards. These specific tasks are fully in line with the role and responsibilities of EBA defined in Regulation (EU) No 1093/2010, under which the EBA has been set up.

Justification

Necessary to create a level playing field regarding security and control measures

Amendment 40

Proposal for a directive

Recital 80 a (new)

Text proposed by the Commission

Amendment

(80a) In order for payment services to work smoothly and for the wider SEPA project to achieve its full potential, it is essential that all stakeholders and especially users, including consumers, are closely involved and can play a full role. While the establishment of the SEPA Governance Body represents a step forward to the governance of SEPA and further payment services, due to its improved representation of stakeholders, the decision-making on payment services is still biased towards the supply side and in particular European banks through the European Payments Council (EPC). Therefore, it is crucial that the Commission review, inter alia, the composition of the EPC, the interaction between the EPC and an overarching governance structure, such as the EPA Council, and the role of this overarching structure. If the Commission's review confirms the need for further initiatives to improve SEPA Governance, the Commission should, where appropriate, submit a legislative proposal.

Justification

When the agreement on the SEPA regulation was reached in 2012, the European Commission declared to analyse the structures of the European Payment Council (EPC) and to possibly provide proposals for its reform to tackle this institution, which is biased towards interests of the banking sector. Up to now the ideas of the Commission for such a reform have not materialised in any proposal. Therefore, it is necessary refer to the Commission´s declaration in order to promote reform future efforts.

Amendment 41

Proposal for a directive

Recital 83 a (new)

Text proposed by the Commission

Amendment

(83a) The principles of mutual recognition and of home Member State supervision require that the Member States’ competent authorities should withdraw or refuse to grant authorisation where factors such as the content of programmes of operations, the geographical distribution or the activities actually carried on indicate clearly that a payment institution has opted for the legal system of one Member State for the purpose of evading the stricter standards in force in another Member State within the territory of which it intends to carry on or does carry on the greater part of its activities. A payment institution should be authorised in the Member State in which it has its registered office or, if under its national law it has no registered office, its head office. In addition, Member States should require that a payment institutions head office must always be situated in its home Member State and that it actually operates there.

Justification

This amendment is in line with and based on the current text of Recital 31 of MIFID. The aim is negate arbitrage in the Union.

Amendment 42

Proposal for a directive

Article 2 – paragraph 1 – subparagraph 1 a (new)

Text proposed by the Commission

Amendment

The Commission shall review the application of this paragraph. By ...*, it shall, on the basis of that review, present a legislative proposal, if appropriate, extend the application of provisions of Title IV other than Article 78 to payment transactions where only one of the payment service providers is located within the Union in respect of those parts of the payments transaction which are carried out in the Union where technically feasible.

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* OJ please insert date: two years after the date of entry into force of this Directive.

Justification

It would be very reasonable to make the major part of Title IV apply to one-leg transactions. However, since it is not clear what is and is not technically feasible in this regard, it would make sense to base such an extension on a detailed review.

Amendment 43

Proposal for a directive

Article 3 – point d

Text proposed by the Commission

Amendment

(d) payment transactions consisting of the non-professional cash collection and delivery within the framework of a non-profit or charitable activity;

(d) payment transactions consisting of non-profit collection and processing of donations within the framework of a charitable activity conducted by an authorised organisation;

Amendment 44

Proposal for a directive

Article 3 – point j

Text proposed by the Commission

Amendment

(j) services provided by technical service providers, which support the provision of payment services, without them entering at any time into possession of the funds to be transferred, including processing and storage of data, trust and privacy protection services, data and entity authentication, information technology (IT) and communication network provision, provision and maintenance of terminals and devices used for payment services, with the exclusion of payment initiation services and account information services;

(j) services provided by technical service providers, which support the provision of payment services, without them entering at any time into possession of the funds to be transferred, including processing and storage of data, trust and privacy protection services, data and entity authentication, information technology (IT) and communication network and secure channels provision, provision and maintenance of terminals and devices used for payment services, with the exclusion of payment initiation services and account information services;

Amendment 45

Proposal for a directive

Article 3 – point k

Text proposed by the Commission

Amendment

(k) services based on specific instruments that are designed to address precise needs that can be used only in a limited way, because they allow the specific instrument holder to acquire goods or services only in in the premises of the issuer or within a limited network of service providers under direct commercial agreement with a professional issuer or because they can be used only to acquire a limited range of goods or services;

(k) services based on specific instruments that are designed to address precise needs that can be used only in a limited way, because they allow the specific instrument holder to acquire goods or services of only one issuer or within a limited network of service providers under direct commercial agreement with an issuer or because they can be used only to acquire a narrow range of goods or services;

Amendment 46

Proposal for a directive

Article 3 – point k a (new)

Text proposed by the Commission

Amendment

(ka) an instrument valid only in a single Member State and regulated by a specific social or tax framework, provided on request of an enterprise or a public entity, carrying a right for an individual to receive goods or services from suppliers having a commercial agreement with the issuer and which cannot be exchanged for money;

Amendment 47

Proposal for a directive

Article 3 – point l

Text proposed by the Commission

Amendment

(l) payment transactions carried out by a provider of electronic communication networks or services where the transaction is provided for a subscriber to the network or service and for purchase of digital content as ancillary services to electronic communications services, regardless of the device used for the purchase or consumption of the content, provided that the value of any single payment transaction does not exceed EUR 50 and the cumulative value of payment transactions does not exceed EUR 200 in any billing month;

(l) payment transactions carried out in an intermediary capacity by a provider of electronic communication networks or services and payment transactions that are ancillary to the core business of the provider where the transaction is provided for a subscriber to the network or service and for purchase of digital content or services, regardless of the device used for the purchase or consumption of the digital content or service, provided that the value of any single payment transaction does not exceed EUR 20 and the cumulative value of payment transactions does not exceed EUR 100 in any calendar month;

Amendment 48

Proposal for a directive

Article 4 – point 12

Text proposed by the Commission

Amendment

12. ‘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;

12. ‘payment service user’ means a natural or legal person making use of a payment service in the capacity of payer, payee, or both, but excluding a third-party payment service provider in its specific capacity of acting on behalf of another payment user;

Amendment 49

Proposal for a directive

Article 4 – point 18

Text proposed by the Commission

Amendment

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

18. ‘payment order’ means any instruction by a payer or payee to his payment service provider, whether initiated directly or via a third-party payment service provider, requesting the execution of a payment transaction;

Amendment 50

Proposal for a directive

Article 4 – point 21

Text proposed by the Commission

Amendment

21. ‘authentication’ means a procedure which allows the payment service provider to verify the identity of a user of a specific payment instrument, including the use of its personalised security features or the checking of personalised identity documents;

21. ‘authentication’ means procedures which allow the payment service provider to verify the validity of the use of a specific payment instrument, including the use of the user’s personalised security credentials or the checking of personalised identity documents, or to identify an interacting third-party payment service provider;

Amendment 51

Proposal for a directive

Article 4 – point 22

Text proposed by the Commission

Amendment

22. ‘strong customer authentication’ means a procedure for the validation of the identification of a natural or legal person based on the use of two or more elements categorised as knowledge, possession and inherence that are independent, in that the breach of one does not compromise the reliability of the others and is designed in such a way as to protect the confidentiality of the authentication data.

22. ‘strong customer authentication’ means a procedure to verify the validity of a payment instrument based on the use of two or more elements categorised as knowledge (something only the user knows), possession (something only the user possesses) and inherence (something the user is) that are independent, in that the breach of one does not compromise the reliability of the others and is designed in such a way as to protect the confidentiality of the authentication data.

Amendment 52

Proposal for a directive

Article 4 – point 26

Text proposed by the Commission

Amendment

26. ‘payment instrument’ means any personalised device(s) and/or set of procedures agreed between the payment service user and the payment service provider and used in order to initiate a payment order;

26. ‘payment instrument’ means any personalised device(s) and/or set of procedures agreed between the payment service user and the payment service provider and used by the payment service user in order to initiate a payment order;

Amendment 53

Proposal for a directive

Article 4 – point 32

Text proposed by the Commission

Amendment

32. ‘payment initiation service’ means a payment service enabling access to a payment account provided by a third party payment service provider, where the payer can be actively involved in the payment initiation or the third party payment service provider’s software, or where payment instruments can be used by the payer or the payee to transmit the payer’s credentials to the account servicing payment service provider;

32. ‘payment initiation service’ means a payment service enabling access to a payment account where a payment transaction is initiated by a third party payment service provider at the request of the payer, from a payment account held by the payer with an account servicing payment service provider;

Amendment 54

Proposal for a directive

Article 4 – point 33

Text proposed by the Commission

Amendment

33. ‘account information service’ means a payment service where consolidated and user-friendly information is provided to a payment service user on one or several payment accounts held by the payment service user with one or several account servicing payment service providers;

33. ‘account information service’ means a service provided by a third-party payment service provider at the request of the payment service user to provide consolidated information on one or several payment accounts held by the payment service user, with one or several payment service providers;

Amendment 55

Proposal for a directive

Article 4 – point 38 a (new)

Text proposed by the Commission

Amendment

38a. 'personalised security credentials' means information used for the validation of the identity of a natural or legal person;

Amendment 56

Proposal for a directive

Article 4 – point 38 b (new)

Text proposed by the Commission

Amendment

38b. 'third-party payment instrument issuer' means a non-account servicing payment service provider pursuing business activities referred to in point (3) or (5) of Annex I;

Amendment 57

Proposal for a directive

Article 4 – point 38 c (new)

Text proposed by the Commission

Amendment

38c. 'credit transfer' means a national or cross-border payment service for crediting a payee's payment account with a payment transaction or a series of payment transactions from a payer's payment account by the payment service provider which holds the payer's payment account, based on an instruction given by the payer;

Amendment 58

Proposal for a directive

Article 4 – point 38 d (new)

Text proposed by the Commission

Amendment

38d. 'sensitive payment data' means data which could be used to carry out fraud, excluding the name of the account owner and the account number, including data enabling a payment order to be initiated data used for authentication data used for ordering payment instruments or authentication tools to be sent to customers, and data, parameters and software which, if modified, may affect the legitimate party's ability to verify payment transactions, authorise e-mandates or control the account;

Amendment 59

Proposal for a directive

Article 4 – point 38 e (new)

Text proposed by the Commission

Amendment

38e. “acquiring of payment transaction” means a payment service provided, directly or indirectly, by a payment service provider contracting with a payee to accept and process the payee’s payment transactions initiated by a payer’s payment instrument, which results in a transfer of funds to the payee; the service could include providing authentication, authorisation, and other services related to the management of financial flows to the payee regardless of whether the payment service provider holds the funds on behalf of the payee;

Amendment 60

Proposal for a directive

Article 5 – paragraph 1 – point g

Text proposed by the Commission

Amendment

(g) a description of the process in place to monitor, track and restrict access to sensitive payment data, and logical and physical critical resources;

(g) a description of the process in place to monitor, track and restrict access to sensitive payment data;

Justification

Reference to logical and physical critical resources can be removed as lifted from the NIS directive.

Amendment 61

Proposal for a directive

Article 5 – paragraph 1 – point k

Text proposed by the Commission

Amendment

(k) a description of the internal control mechanisms which the applicant has established in order to comply with obligations in relation to money laundering and terrorist financing under Directive 2005/60/EC of the European Parliament and of the Council⁴⁵ and Regulation (EC) No 1781/2006 of the European Parliament and of the Council⁴⁶ ;

(k) for payment institutions subject to the obligations in relation to money laundering and terrorist financing under Directive 2005/60/EC of the European Parliament and of the Council⁴⁵ and Regulation (EC) No 1781/2006 of the European Parliament and of the Council⁴⁶ a description of the internal control mechanisms which the applicant has established in order to comply with those obligations;

__________________

⁴⁵ Directive 2005/60/EC of the European Parliament and of the Council of 26 October 2005 on the prevention of the use of the financial system for the purpose of money laundering and terrorist financing (OJ L 309, 25.11.2005, p.15)

⁴⁶ Regulation (EC) No 1781/2006 of the European Parliament and of the Council of 15 November 2006 on information on the payer accompanying transfers of funds (OJ L 345, 8.12.2006, p.1).

Amendment 62

Proposal for a directive

Article 5 – paragraph 3 a – subparagraph 1 (new)

Text proposed by the Commission

Amendment

3a. EBA shall, after consulting an advisory panel set up in accordance with Article 41 of Regulation (EU) No 1093/2010, which represents all stakeholders, including those operating outside the banking industry, develop draft regulatory technical standards specifying the information to be provided to the competent authorities in the application for the authorisation of payment institutions, including the requirements laid down in points (a), (b), (c), (e), (g), (h), (i) and (j) of paragraph 1.

Amendment 63

Proposal for a directive

Article 5 – paragraph 3 a – subparagraph 2 (new)

Text proposed by the Commission

Amendment

EBA shall submit those draft regulatory technical standards to the Commission by ...

Amendment 64

Proposal for a directive

Article 5 – paragraph 3 a – subparagraph 3 (new)

Text proposed by the Commission

Amendment

The Commission shall adopt the draft regulatory standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010.

Amendment 65

Proposal for a directive

Article 9 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

1. The Member States or competent authorities shall require a payment institution which provides any payment services and, insofar as it at the same time is engaged in other business activities referred to in Article 17(1)(c) to safeguard all funds which have been received from the payment service users or through another payment service provider for the execution of payment transactions, in either of the following ways:

1. The Member States or competent authorities shall require a payment institution which provides any payment service listed in Annex I or carries out a business activity referred to in Article 17(1)(c) to safeguard all funds which have been received from the payment service users or through another payment service provider for the execution of payment transactions, in either of the following ways:

Amendment 66

Proposal for a directive

Article 9 – paragraph 1 – point a

Text proposed by the Commission

Amendment

(a) funds shall not be commingled at any time with the funds of any natural or legal person other than payment service users on whose behalf the funds are held and, where they are still held by the payment institution and not yet delivered to the payee or transferred to another payment service provider by the end of the business day following the day when the funds have been received, they shall be deposited in a separate account in a credit institution or invested in secure, liquid low-risk assets as defined by the competent authorities of the home Member State; and they shall be insulated in accordance with national law in the interest of the payment service users against the claims of other creditors of the payment institution, in particular in the event of insolvency;

(a) funds shall not be commingled at any time with the funds of any natural or legal person other than payment service users on whose behalf the funds are held and, where they are still held by the payment institution and not yet delivered to the payee or transferred to another payment service provider by the end of the business day following the day when the funds have been received, they shall thereafter be deposited in a separate account in a credit institution or invested in secure, liquid low-risk assets as defined by the competent authorities of the home Member State; and they shall be insulated in accordance with national law in the interest of the payment service users against the claims of other creditors of the payment institution, in particular in the event of insolvency;

Justification

Clarification of the order of events.

Amendment 67

Proposal for a directive

Article 10 – paragraph 3

Text proposed by the Commission

Amendment

3. A payment institution which under the national law of its home Member State is required to have a registered office, shall have its head office in the same Member State as its registered office.

3. A payment institution which under the national law of its home Member State is required to have a registered office, shall have its head office in the same Member State as its registered office and in which it actually carries out its business activities.

Justification

Related to Recital 13 of current MIFID text.

Amendment 68

Proposal for a directive

Article 12 – paragraph 1 – introductory part

Text proposed by the Commission

Amendment

1. The competent authorities may withdraw an authorisation issued to a payment institution only where the institution falls within the following cases:

1. The competent authorities may withdraw an authorisation issued to a payment institution only where the institution falls within any of the following cases:

Amendment 69

Proposal for a directive

Article 12 – paragraph 1 – point d

Text proposed by the Commission

Amendment

(d) would constitute a threat to the stability of or the trust in the payment system by continuing its payment services business;

(d) would constitute a threat to the stability of or the trust in the payment system by continuing its payment services business; or

Amendment 70

Proposal for a directive

Article 13 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

The register shall also identify and give reasons for each withdrawal of authorisation by the competent authorities.

Amendment 71

Proposal for a directive

Article 14 – paragraph 4 – subparagraph 1

Text proposed by the Commission

Amendment

4. EBA shall develop draft regulatory technical standards setting technical requirements regarding access to the information contained in the public registers referred to in Article 13 at the Union level. EBA shall submit those draft regulatory technical standards to the Commission by […within two years of the date of entry into force of this Directive].

4. EBA shall develop draft regulatory technical standards setting technical requirements regarding access to the information contained in the public registers referred to in Article 13 at the Union level after consulting the advisory panel referred to in Article 5(3a).

EBA shall submit those draft regulatory technical standards to the Commission by […within two years of the date of entry into force of this Directive].

Amendment 72

Proposal for a directive

Article 17 – paragraph 2

Text proposed by the Commission

Amendment

2. When payment institutions engage in the provision of one or more of the payment services, they may hold only payment accounts used exclusively for payment transactions. Member States shall ensure that access to those payment accounts is proportionate.

2. When payment institutions engage in the provision of one or more of the payment services, they may hold payment accounts used exclusively for payment transactions. Member States shall ensure that payment institutions are granted access to credit institutions' payment and deposit account services, on an objective, non-discriminatory and proportionate basis. Such access shall be extensive enough to allow payment institutions provide payment services in an unobstructed and efficient manner.

Amendment 73

Proposal for a directive

Article 21 – paragraph 3

Text proposed by the Commission

Amendment

3. Where there is more than one competent authority for matters covered by this Title on its territory, Member States shall ensure that those authorities cooperate closely so that they can discharge their respective duties effectively. The same applies in cases where the authorities competent for matters covered by this Title are not the competent authorities responsible for the supervision of credit institutions.

3. Where the authority competent for matters covered by this Title is not the competent authority responsible for the supervision of credit institutions Member States shall ensure that those authorities cooperate closely so that they can discharge their respective duties effectively.

Amendment 74

Proposal for a directive

Article 22 – paragraph 1 – subparagraph 2 – point a

Text proposed by the Commission

Amendment

(a) to require the payment institution to provide any information needed to monitor compliance;

(a) to require the payment institution to provide any information needed to monitor compliance by means of formal decision, specifying the legal basis and the purpose of the request, what information is required and the time limit by which the information should be provided;

Amendment 75

Proposal for a directive

Article 22 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

2a. Any request for information or documents made by competent authorities of the Member States shall be made on the basis of by a decision that specifies its legal basis, the purpose of the request, details of the information or documents required, the time by which they are required and the period for which the information or documents are to be retained.

Justification

This proposal is based on the opinion of the European Data Protection Supervisor (EDPS)

Amendment 76

Proposal for a directive

Article 25 – paragraph 1

Text proposed by the Commission

Amendment

1. The competent authorities of the different Member States shall cooperate with each other and, where appropriate, with the European Central Bank and the national central banks of the Member States, EBA and other relevant competent authorities designated under Union or national legislation applicable to payment service providers. Where those authorities are processing personal data, they should specify for which precise purpose and mention the appropriate legal basis in Union law.

Justification

Based on an opinion of the EDPS.

Amendment 77

Proposal for a directive

Article 25 – paragraph 2 – point d a (new)

Text proposed by the Commission

Amendment

(da) Europol, in its capacity as the Union's law enforcement agency and responsible for assisting and coordinating a common approach among competent police authorities of the Member States in combating organised crime, other serious crime and terrorism including euro counterfeiting, forgery of money and other means of payment.

Amendment 78

Proposal for a directive

Article 25 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

2a. EBA shall have the mandate to start and promote binding mediation to settle disputes between competent authorities arising out of the exchange of information.

Justification

This amendment is based on a contribution by the European Banking Authority (EBA).

Amendment 79

Proposal for a directive

Article 26 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

1a. Member States shall not impose any additional requirements on a Union payment institution wishing to provide payment services in a host Member State which are not applicable to payment institutions authorised by the host Member State.

Justification

Aim to ensure a level playing field across Europe

Amendment 80

Proposal for a directive

Article 26 – paragraph 3

Text proposed by the Commission

Amendment

3. The competent authorities shall provide each other with all essential and/or relevant information, in particular in the case of infringements or suspected infringements by an agent, a branch or an entity to which activities are outsourced. In this regard, the competent authorities shall communicate, upon request, all relevant information and, on their own initiative, all essential information. In the case of retention of personal data, the storage of personal data by competent authorities shall not exceed ten years. In any event, the storage of personal data shall comply with Directive 95/46/EC.

Justification

Based on the opinion of EDPS

Amendment 81

Proposal for a directive

Article 26 – paragraph 5

Text proposed by the Commission

Amendment

5. EBA shall issue guidelines addressed to competent authorities in accordance with Article 16 of Regulation (EU) No 1093/2010 on the elements to be taken into consideration when deciding whether the activity the payment institution notified intends to provide in another Member State under paragraph 1 of this Article would amount to the exercise of the right of establishment or freedom to provide services. Those guidelines shall be issued by […within two years of the date of entry into force of this Directive].

5. EBA shall issue guidelines addressed to competent authorities in accordance with Article 16 of Regulation (EU) No 1093/2010 on the elements to be taken into consideration when deciding whether the activity the payment institution notified intends to provide in another Member State under paragraph 1 of this Article would amount to the exercise of the right of establishment or freedom to provide services. Those guidelines shall be issued by […within 12 months of the date of entry into force of this Directive].

Amendment 82

Proposal for a directive

Article 27 – paragraph 1 – point a

Text proposed by the Commission

Amendment

(a) the average of the preceding 12 months’ total amount of payment transactions executed by the person concerned, including any agent for which it assumes full responsibility, does not exceed EUR 1 million per month. That requirement shall be assessed on the projected total amount of payment transactions in its business plan, unless an adjustment to that plan is required by the competent authorities;

(a) the average of the preceding 12 months’ total amount of payment transactions executed or initiated by the person concerned, including any agent for which it assumes full responsibility, does not exceed EUR 1 million per month. That requirement shall be assessed on the projected total amount of payment transactions in its business plan, unless an adjustment to that plan is required by the competent authorities;

Amendment 83

Proposal for a directive

Article 31 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

2a. Member States shall ensure that individuals are provided with appropriate information about the processing of personal data in accordance with national provisions transposing Articles 10 and 11 of Directive 95/46/EC and to Article 11 of Regulation (EC) No 45/2001.

Amendment 84

Proposal for a directive

Article 33 – paragraph 3

Text proposed by the Commission

Amendment

3. Where the payment service provider may impose charges for information in accordance with paragraph 2, they shall be appropriate and in line with the payment service provider’s actual costs.

3. Where the payment service provider may impose charges for information in accordance with paragraph 2, they shall be reasonable and in line with the payment service provider’s actual costs.

Amendment 85

Proposal for a directive

Article 33 – paragraph 3 a (new)

Text proposed by the Commission

Amendment

3a. Member States shall ensure that consumers who switch their payment account, upon request can receive the transactions carried out on the former payment account recorded on a durable medium from the transferring payment service provider for a reasonable fee.

Justification

If switching payment account to a different PSP the account statements at the former PSP might be needed for various purposes, e.g. applying for credit, renting a dwelling, providing supporting information for income tax control. Due to the development of online bank accounts, consumers might only access electronic bank statements and do not always have the possibility to download several years of transactions.

Amendment 86

Proposal for a directive

Article 34

Text proposed by the Commission

Amendment

Member States may stipulate that the burden of proof shall lie with the payment service provider to prove that it has complied with the information requirements set out in this Title.

Member States shall stipulate that the burden of proof shall lie with the payment service provider to prove that it has complied with the information requirements set out in this Title.

Justification

The reasonable approach here is to make clear that the burden of proof consistently lies with the PSP. While it is easy and straightforward for a PSP to account for what is has and has not done in terms of information, it is often difficult or impossible for a payment service user to prove that he has not received the information he had the right to get. In particular if the user is a consumer, it is unrealistic to place the burden on the user.

Amendment 87

Proposal for a directive

Article 37 – paragraph 1

Text proposed by the Commission

Amendment

1. Member States shall require that before the payment service user is bound by any single payment service contract or offer, the payment service provider, in an easily accessible manner, makes available to the payment service user the information and conditions specified in Article 38. At the payment service user's request, the payment service provider shall provide the information and conditions on paper or on another durable medium. The information and conditions shall be given in easily understandable words and in a clear and comprehensible form, in an official language of the Member State where the payment service is offered or in any other language agreed between the parties.

1. Member States shall require that before the payment service user is bound by any single payment service contract or offer, the payment service provider, in an easily accessible manner, makes available to the payment service user the information and conditions specified in Article 38 with regard to its own services. At the payment service user's request, the payment service provider shall provide the information and conditions on paper or on another durable medium. The information and conditions shall be given in easily understandable words and in a clear and comprehensible form, in an official language of the Member State where the payment service is offered or in any other language agreed between the parties.

Amendment 88

Proposal for a directive

Article 37 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

2a. Member States shall require that, where a payment order is initiated by a third-party payment service provider, it makes available to the payment service user the information and conditions referred to in Article 38. The information and conditions shall be given in a clear and understandable form and in an official language of the Member State where the payment service is offered or in any other language agreed between the parties.

Amendment 89

Proposal for a directive

Article 38 – paragraph 2

Text proposed by the Commission

Amendment

2. Member States shall ensure that for payment initiation services, the third party payment service provider shall provide the payer with information about the service offered and contact information to the third party payment service provider.

2. Member States shall ensure that for payment initiation services, the third party payment service provider shall, prior to initiation, provide the payer with the following clear and comprehensive information:

(a) the contact information and registration number of the third-party payment service provider, and the name of the supervisory authority responsible;

(b) where applicable, the maximum time-limit for the payment initiation procedure;

(c) all possible charges payable by the payment service user to the third-party payment service provider and, where applicable, the breakdown of the amounts of any charges;

(d) where applicable, the actual or reference exchange rate to be applied.

Amendment 90

Proposal for a directive

Article 39 – introductory part

Text proposed by the Commission

Amendment

Where a third party payment service provider, at the request of the payer, initiates a payment order, it shall provide or make available to the payer and, where applicable, the payee, immediately after initiation, the following data:

Where a third party payment service provider, at the request of the payer, initiates a payment order, it shall provide to the payer and, where applicable, the payee, immediately after initiation, the following data in a clear and non-ambiguous manner:

Amendment 91

Proposal for a directive

Article 39 – point a

Text proposed by the Commission

Amendment

(a) a confirmation of the successful initiation of the payment order with the payer’s account servicing payment service provider;

(a) a confirmation of the successful initiation of the payment transaction with the payer's account servicing payment service provider;

Amendment 92

Proposal for a directive

Article 39 – paragraph 1 – point d

Text proposed by the Commission

Amendment

(d) where applicable, the amount of any charges for the payment transaction and, where applicable, a breakdown thereof.

(d) where applicable, the amount of any charges payable to the third-party payment provider for the payment transaction, such charges to be individually itemised.

Amendment 93

Proposal for a directive

Article 39 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

This Article is without prejudice to the data protection obligations applicable to the third-party payment service provider and the payee.

Amendment 94

Proposal for a directive

Article 41 – introductory part

Text proposed by the Commission

Amendment

Immediately after receipt of the payment order, the payer's payment service provider shall provide or make available to the payer, in the same way as provided for in Article 37(1), the following data:

Immediately after receipt of the payment order, the account servicing payment service provider shall provide or make available to the payer, in the same way as provided for in Article 37(1), the following data with regard to its own services:

Amendment 95

Proposal for a directive

Article 42 – introductory part

Text proposed by the Commission

Amendment

Immediately after the execution of the payment transaction, the payee's payment service provider shall provide or make available to the payee, in the same way as provided for in Article 37(1), all of the following data:

Amendment 96

Proposal for a directive

Article 44 – paragraph 1

Text proposed by the Commission

Amendment

1. Member States shall require that, in good time before the payment service user is bound by any framework contract or offer, the payment service provider provide the payment service user on paper or on another durable medium with the information and conditions specified in Article 45. The information and conditions shall be given in easily understandable words and in a clear and comprehensible form, in an official language of the Member State where the payment service is offered or in any other language agreed between the parties.

1. Member States shall require that, in good time before the payment service user is bound by any framework contract or offer, the payment service provider make available or, on the request of the payment service user, provide the payment service user on paper or on another durable medium with the information and conditions specified in Article 45. The information and conditions shall be given in easily understandable words and in a clear and comprehensible form, in an official language of the Member State where the payment service is offered or in any other language agreed between the parties.

Amendment 97

Proposal for a directive

Article 45 – point 2 – point a

Text proposed by the Commission

Amendment

(а) a description of the main characteristics of the payment service to be provided;

(а) a clear description of the main characteristics of the payment service to be provided;

Amendment 98

Proposal for a directive

Article 45 – point 2 – point c

Text proposed by the Commission

Amendment

(c) the form of and procedure for giving consent to initiate or execute a payment transaction and withdrawal of such consent in accordance with Articles 57 and 71;

(c) the form of and procedure for giving consent to initiate a payment order or execute a payment transaction and withdrawal of such consent in accordance with Articles 57 and 71;

Amendment 99

Proposal for a directive

Article 45 point 6 – point a

Text proposed by the Commission

Amendment

(a) if agreed, information that the payment service user will be deemed to have accepted changes in the conditions in accordance with Article 47, unless he notifies the payment service provider that he does not accept them before the date of their proposed date of entry into force;

(a) if agreed, except where the change is clearly and unambiguously more favourable to payment service users under Article 47(2), information that the payment service user will be deemed to have accepted changes in the conditions in accordance with Article 47, unless he notifies the payment service provider that he does not accept them before the date of their proposed date of entry into force, such notification being ineffective where the change is clearly and unambiguously more favourable to payment service users;

Amendment 100

Proposal for a directive

Article 47 – paragraph 1 – subparagraph 1

Text proposed by the Commission

Amendment

1. Any changes in the framework contract as well as the information and conditions specified in Article 45, shall be proposed by the payment service provider in the same way as provided for in Article 44(1) and no later than two months before their proposed date of application.

1. Any changes in the framework contract which are not clearly and unambiguously more favourable to payment service users as well as the information and conditions specified in Article 45, shall be proposed by the payment service provider in the same way as provided for in Article 44(1) no later than two months before their proposed date of application.

Amendment 101

Proposal for a directive

Article 47 – paragraph 2

Text proposed by the Commission

Amendment

2. Changes in the interest or exchange rates may be applied immediately and without notice, provided that such a right is agreed upon in the framework contract and that the changes are based on the reference interest or exchange rates agreed on in accordance with points (b) and (c) of Article 45(3). The payment service user shall be informed of any change in the interest rate at the earliest opportunity in the same way as provided for in Article 44(1), unless the parties have agreed on a specific frequency or manner in which the information is to be provided or made available. However, changes in interest or exchange rates which are more favourable to the payment service users, may be applied without notice.

2. Changes in the interest or exchange rates may be applied immediately and without notice, provided that such a right is agreed upon in the framework contract and that the changes in the interest or exchange rates are based on the reference interest or exchange rates agreed on in accordance with points (b) and (c) of Article 45(3). The payment service user shall be informed of any change in the interest rate at the earliest opportunity in the same way as provided for in Article 44(1), unless the parties have agreed on a specific frequency or manner in which the information is to be provided or made available. However, changes in interest or exchange rates which are more favourable to the payment service users, and changes to the framework contract which are clearly and unambiguously more favourable to payment service users, may be applied without notice.

Amendment 102

Proposal for a directive

Article 48 – paragraph 2

Text proposed by the Commission

Amendment

2. Termination of a framework contract concluded for a fixed period exceeding 12 months or for an indefinite period shall be free of charge for the payment service user after the expiry of 12 months. In all other cases charges for the termination shall be appropriate and in line with costs.

2. Termination of a framework contract shall be free of charge for the payment service user.

Justification

Account closure fees are a barrier to account switching. PSPs should not charge consumers fees for termination of a framework contract. In some Member States the PSPs cannot charge fees on consumers for the switching service. UK and Austrian switching service currently imposes no fees on consumers to utilise its service, and within the UK there is no fee on consumers who close their accounts within first 12 months after opening. In Italy consumers do not pay fees for account closure.

Amendment 103

Proposal for a directive

Article 50 – paragraph 2

Text proposed by the Commission

Amendment

2. A framework contract may include a condition that the information referred to in paragraph 1 is to be provided or made available periodically at least once a month and in an agreed manner which allows the payer to store and reproduce information unchanged.

2. A framework contract shall include a condition that the information referred to in paragraph 1 is to be provided or made available periodically at least once a month, free of charge and in an agreed manner which allows the payer to store and reproduce information unchanged.

Amendment 104

Proposal for a directive

Article 50 – paragraph 3

Text proposed by the Commission

Amendment

3. However, Member States may require payment service providers to provide information on paper once a month free of charge.

3. However, Member States may require payment service providers to provide information on paper or another durable medium once a month free of charge.

Amendment 105

Proposal for a directive

Article 51 – paragraph 1 – point a

Text proposed by the Commission

Amendment

(a) the reference enabling the payee to identify the payment transaction and, where appropriate, the payer, and any information transferred with the payment transaction;

(a) the reference enabling the payee to identify the payment transaction and the payer, and any information transferred with the payment transaction;

Amendment 106

Proposal for a directive

Article 51 – paragraph 3

Text proposed by the Commission

Amendment

3. However, Member States may require payment service providers to provide information on paper once a month free of charge.

3. However, Member States may require payment service providers to provide information on paper or another durable medium once a month free of charge.

Amendment 107

Proposal for a directive

Article 52 – paragraph 2 – subparagraph 1

Text proposed by the Commission

Amendment

Where a currency conversion service is offered prior to the initiation of the payment transaction and where that currency conversion service is offered at the point of sale or by the payee, the party offering the currency conversion service to the payer shall disclose to the payer all charges as well as the exchange rate to be used for converting the payment transaction.

Where a currency conversion service is offered prior to the initiation of the payment transaction and where that currency conversion service is offered at an ATM, the point of sale or by the payee, the party offering the currency conversion service to the payer shall disclose to the payer all charges as well as the exchange rate to be used for converting the payment transaction.

Amendment 108

Proposal for a directive

Article 53 – paragraph 2

Text proposed by the Commission

Amendment

2. Where, for the use of a given payment instrument, a payment service provider or a third party requests a charge, he shall inform the payment service user thereof prior to the initiation of the payment transaction.

deleted

Amendment 109

Proposal for a directive

Article 53 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

2a. Where a payment service provider is entitled to pass on third party costs to the payer, the payer is not obliged to pay for them unless their full amount was made known prior to the initiation of the payment transaction.

Amendment 110

Proposal for a directive

Article 55 – paragraph 1

Text proposed by the Commission

Amendment

1. The payment service provider may not charge the payment service user for fulfilment of its information obligations or corrective and preventive measures under this Title, unless otherwise specified in Articles 70(1), 71(5) and 79(2). Those charges shall be agreed between the payment service user and the payment service provider and shall be appropriate and in line with the payment service provider's actual costs.

Amendment 111

Proposal for a directive

Article 55 – paragraph 3

Text proposed by the Commission

Amendment

3. The payment service provider shall not prevent the payee from requesting from the payer a charge, offering him a reduction or otherwise steering him towards the use of a given payment instrument. Any charges applied shall, however, not exceed the costs borne by the payee for the use the specific payment instrument.

3. The payment service provider shall not prevent the payee from requesting from the payer a charge, offering him a reduction or otherwise steering him towards the use of a given payment instrument. Any charges applied shall, however, shall not exceed the direct costs borne by the payee for the use the specific payment instrument.

Amendment 112

Proposal for a directive

Article 55 – paragraph 4 a (new)

Text proposed by the Commission

Amendment

4a. Notwithstanding paragraph 4, Member States may provide that the payee does not request any charge for the use of any payment instrument.

Amendment 113

Proposal for a directive

Article 57 – paragraph 2 – subparagraph 1

Text proposed by the Commission

Amendment

2. Consent to execute a payment transaction or a series of payment transactions shall be given in the form agreed between the payer and the payment service provider. Consent may also be given directly or indirectly via the payee. Consent to execute a payment transaction shall also be considered given where the payer authorises a third party payment service provider to initiate the payment transaction with the account servicing payment service provider.

2. Consent to execute a payment transaction or a series of payment transactions (including direct debit) shall be given in the form agreed between the payer and the payment service provider. Consent may also be given directly or indirectly via the payee. Consent to execute a payment transaction shall also be considered given where the payer authorises a third party payment service provider to initiate a payment transaction with an account servicing payment service provider servicing an account owned by the payer.

Amendment 114

Proposal for a directive

Article 58 – title

Text proposed by the Commission

Amendment

Access to and use of payment account information by third party payment service provider

Access to and use of payment account information by third party payment service provider and by third-party payment instrument issuers

Amendment 115

Proposal for a directive

Article 58 – paragraph 1

Text proposed by the Commission

Amendment

1. Member States shall ensure that a payer has the right to make use of a third party payment service provider to obtain payment services enabling access to payment accounts as referred to in point (7) of Annex I.

1. Member States shall ensure that a payer, provided that the payer holds a payment account that can be accessed via online banking, has the right to make use of an authorised third party payment service provider, to obtain payment services enabling access to payment accounts as referred to in point (7) of Annex I. Member States shall ensure that a payer has the right to make use of an authorised third-party payment instrument issuer to obtain payment instrument enabling payment transactions.

Amendment 116

Proposal for a directive

Article 58 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

1a. The account servicing payment service provider shall not deny access under this Article to the third-party payment service provider or to the third-party payment instrument issuer when it has been authorised to carry out a specific payment on behalf of the payer provided that the payer gives its consent in accordance with Article 57 in an express manner.

Amendment 117

Proposal for a directive

Article 58 – paragraph 1 b (new)

Text proposed by the Commission

Amendment

1b. Payees who offer to payers the option of making use of third party payment service providers or third-party payment instrument issuers shall unambiguously provide to payers information about such third party payment service provider(s), including their registration number and the name of their responsible supervisory authority.

Amendment 118

Proposal for a directive

Article 58 – paragraph 2 – introductory part

Text proposed by the Commission

Amendment

2. Where a third party payment service provider has been authorised by the payer to provide payment services under paragraph 1, he shall have the following obligations:

2. Where a third party payment service provider has been authorised by the payer to provide payment services under paragraph 1, it shall have the following obligations:

Amendment 119

Proposal for a directive

Article 58 – paragraph 2 – point a

Text proposed by the Commission

Amendment

(a) to ensure that the personalised security features of the payment service user are not accessible to other parties;

(a) to ensure that the personalised security credentials of the payment service user are not accessible to other parties;

Amendment 120

Proposal for a directive

Article 58 – paragraph 2 – point b

Text proposed by the Commission

Amendment

(b) to authenticate itself in an unequivocal manner towards the account servicing payment service provider(s) of the account owner.

(b) every time a payment is initiated or account information is collected to authenticate itself in an unequivocal manner towards the account servicing payment service provider(s) of the account owner.

Amendment 121

Proposal for a directive

Article 58 – paragraph 2 – point c

Text proposed by the Commission

Amendment

Amendment 122

Proposal for a directive

Article 58 – paragraph 2 – point c a (new)

Text proposed by the Commission

Amendment

(ca) not to use data for purposes other than those explicitly requested by the payer.

Amendment 123

Proposal for a directive

Article 58 – paragraph 3 a (new)

Text proposed by the Commission

Amendment

3a. Where the payer has given consent to a third-party payment instrument issuer which has provided the payer with a payment instrument to obtain information on the availability of sufficient funds for a specified payment transaction on a specified payment account held by the payer, the account servicing payment service provider of the specified payment account shall provide such information to the third party payment instrument issuer immediately upon receipt of the payer's payment order. The information on the availability of sufficient funds should consist in a simple 'yes' or 'no' answer and not in a statement of the account balance, in accordance with Directive 95/46/EC.

Amendment 124

Proposal for a directive

Article 58 – paragraph 4

Text proposed by the Commission

Amendment

4. Account servicing payment service providers shall treat payment orders transmitted through the services of a third party payment service provider without any discrimination for other than objective reasons in terms of timing and priority vis-à-vis payment orders transmitted directly by the payer himself.

4. Account servicing payment service providers shall treat payment orders transmitted through the services of a third party payment service provider or by a third party payment instrument issuer without any discrimination for other than objective reasons in particular in terms of timing and priority or charges vis-à-vis payment orders transmitted directly by the payer himself.

Amendment 125

Proposal for a directive

Article 58 – paragraph 4 a (new)

Text proposed by the Commission

Amendment

4a. Third-party payment service providers shall not be required to enter into contractual relationships with account servicing payment service providers in the context of payment initiation or account information services.

Justification

If relations between TPPs and AS PSPs were to be based on contracts, many TPPs would most likely be either blocked or hampered in their activities. The innovation and competition that TPPs have started to bring into the market would probably be suppressed. It would therefore, from a society point of view, be much more rational to make sure that the TPP/AS PSP relationship is built exclusively on a general legislative and supervisory framework.

Amendment 126

Proposal for a directive

Article 58 – paragraph 4 b (new)

Text proposed by the Commission

Amendment

4b. Member States shall ensure that, once the common and secure open standards of communication have been established and are implemented by the account servicing payment service provider of the customer to third-party payment providers as under Article 94a, the payment service user may use the most secure, state of the art, technological solution in the initiation of e-payment transactions through third-party payment service providers.

Justification

The decision to bring TPPs under the scope of the revised Payment Services Directive is also essential to ensure a level playing field in the payment services market. There is up to date no serious security incidents involving TPPs, but it is still a relatively small niche market and would potentially attract fraudsters once it reaches important payment transaction volumes. The suggestion is based on a proposal from BEUC.

Amendment 127

Proposal for a directive

Article 59

Text proposed by the Commission

Amendment

Article 59

deleted

Access to and use of payment account information by third party payment instrument issuers

1. Member States shall ensure that a payer has the right to make use of a third party payment instrument issuer to obtain payment card services.

2. If the payer has given consent to a third party payment instrument issuer which has provided the payer with a payment instrument to obtain information on the availability of sufficient funds for a specified payment transaction on a specified payment account held by the payer, the account servicing payment service provider of the specified payment account shall provide such information to the third party payment instrument issuer immediately upon receipt of the payer's payment order.

3. Account servicing payment service providers shall treat payment orders transmitted through the services of a third party payment instrument issuer without any discrimination for other than objective reasons in terms of timing and priority in respect of payment orders transmitted directly by the payer personally.

Amendment 128

Proposal for a directive

Article 61 – paragraph 2

Text proposed by the Commission

Amendment

2. For the purposes of point (a) of paragraph 1, the payment service user shall, in particular, as soon as he in receipt of a payment instrument, take all reasonable steps to keep its personalised security features safe. The payment service users' obligations of care shall not inhibit the use of any payment instrument and services authorised under this Directive.

2. For the purposes of point (a) of paragraph 1, the payment service user shall, in particular, as soon as he in receipt of a payment instrument, take all reasonable steps to keep its personalised security credentials safe. The payment service users' obligations of care shall not inhibit the use of any payment instrument and services authorised under this Directive.

Amendment 129

Proposal for a directive

Article 62 – paragraph 1 – point a

Text proposed by the Commission

Amendment

(a) to make sure that the personalised security features of the payment instrument are not accessible to parties other than the payment service user entitled to use the payment instrument, without prejudice to the obligations on the payment service user set out in Article 61;

(a) to make sure that the personalised security credentials of the payment instrument are indeed secure and are not accessible to parties other than the payment service user entitled to use the payment instrument, without prejudice to the obligations on the payment service user set out in Article 61;

Amendment 130

Proposal for a directive

Article 62 – paragraph 2

Text proposed by the Commission

Amendment

2. The payment service provider shall bear the risk of sending a payment instrument to the payer or of sending any personalised security features of it.

2. The payment service provider shall bear the risk of sending a payment instrument to the payer or of sending any personalised security credentials of it.

Amendment 131

Proposal for a directive

Article 63 – paragraph 2

Text proposed by the Commission

Amendment

2. Where a third party payment service provider is involved, the payment service user shall also obtain rectification from the account servicing payment service provider pursuant to paragraph 1 of this Article, without prejudice to Articles 65(2) and 80(1).

2. Where the payment service user has chosen to make use of a third party payment service provider the payment service user shall inform the latter and notify the account servicing payment service provider. The payment service user shall obtain rectification from the account servicing payment service provider pursuant to paragraph 1 of this Article without prejudice to Article 80(1).

Amendment 132

Proposal for a directive

Article 63 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

2a. The payment service user shall report to its account servicing payment service provider any incident known to them that affects the former in the context of its use of a third-party payment service provider or third-party payment instrument issuer. The account servicing payment service provider shall notify the national competent authorities of any incidents that occur. National competent authorities shall than follow the procedures established by EBA, in close cooperation with the ECB, as laid down in Article 85.

Amendment 133

Proposal for a directive

Article 64 – paragraph 1 – subparagraph 1

Text proposed by the Commission

Amendment

1. Member States shall require that, where a payment service user denies having authorised an executed payment transaction or claims that the payment transaction was not correctly executed, it is for the payment service provider and, if involved and as appropriate, the third party payment service provider, to prove that the payment transaction was authenticated, accurately recorded, entered in the accounts and not affected by a technical breakdown or some other deficiency.

1. Member States shall require that, where a payment service user denies having authorised an executed payment transaction or claims that the payment transaction was not correctly executed, it is for the payment service provider and, if involved, the third party payment service provider, to prove that the payment transaction was authenticated, accurately recorded, entered in the accounts and not affected by a technical breakdown or some other deficiency.

Justification

If involved, the TPP should always be responsible to prove that "the payment transaction was authenticated, accurately recorded, entered in the accounts and not affected by a technical breakdown or some other deficiency". The reference to "as appropriate" might lead to situations where the TPP responsibility is unclear.

Amendment 134

Proposal for a directive

Article 64 – paragraph 1 – subparagraph 2

Text proposed by the Commission

Amendment

If the payment transaction has been initiated through a third party payment service provider, the burden shall be on the latter to prove that the payment transaction was not affected by a technical breakdown or other deficiencies linked to the payment service it is in charge of.

If the payment service user initiates the payment transaction through a third party payment service provider, the burden shall be on the latter to prove that the payment transaction was authenticated, accurately recorded and not affected by a technical breakdown or other deficiencies linked to the payment service it is in charge of.

Amendment 135

Proposal for a directive

Article 64 – paragraph 2

Text proposed by the Commission

Amendment

2. Where a payment service user denies having authorised an executed payment transaction, the use of a payment instrument recorded by the payment service provider, including the third party payment service provider as appropriate, shall in itself not necessarily be sufficient to prove either that the payment transaction was authorised by the payer or that the payer acted fraudulently or failed with intent or gross negligence to fulfil one or more of the obligations under Article 61. In such a case mere assumptions without further supporting evidence beyond the recorded use of the payment instrument shall not be considered eligible proof against the payment user. Supporting evidence shall be given by the payment service provider, including the third-party provider as appropriate, to prove fraud or gross negligence on part of the payer.

Amendment 136

Proposal for a directive

Article 65 – paragraph 1

Text proposed by the Commission

Amendment

1. Member States shall ensure that, without prejudice to Article 63, in the case of an unauthorised payment transaction, the payer's payment service provider refunds to the payer immediately the amount of the unauthorised payment transaction and, where applicable, restores the debited payment account to the state in which it would have been had the unauthorised payment transaction not taken place. This shall also ensure that the credit value date for the payer's payment account shall be no later than the date the amount had been debited.

1. Member States shall ensure that, without prejudice to Article 63, in the case of an unauthorised payment transaction, the payer's payment service provider refunds to the payer the amount of the unauthorised payment transaction within 24 hours of having noted or having been notified about the transaction, and, where applicable, restores the debited payment account to the state in which it would have been had the unauthorised payment transaction not taken place. This shall also ensure that the credit value date for the payer’s payment account shall be no later than the date the amount had been debited.

Amendment 137

Proposal for a directive

Article 65 – paragraph 2

Text proposed by the Commission

Amendment

2. Where a third party payment service provider is involved, the account servicing payment service provider shall refund the amount of the unauthorised payment transaction and, where applicable, restore the debited payment account to the state in which it would have been had the unauthorised payment transaction not taken place. If the third party payment service provider cannot demonstrate that it is not liable for the unauthorised payment transaction, it shall, within one business day, compensate the account servicing payment service provider for reasonable costs incurred as a result of the refund to the payer, including the amount of the unauthorised payment transaction.

Amendment 138

Proposal for a directive

Article 66 – paragraph 1 – subparagraph 1

Text proposed by the Commission

Amendment

By way of derogation from Article 65 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.

By way of derogation from Article 65 the payer may be obliged to bear the losses relating to any unauthorised payment transactions, up to a maximum of EUR 50 or the equivalent in another national currency, resulting from the use of a lost or stolen payment instrument or from the misappropriation of a payment instrument. This shall not apply if the loss, theft or misappropriation of a payment instrument was not detectable to the payer prior to a payment.

Amendment 139

Proposal for a directive

Article 66 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

2a. EBA shall, in close cooperation with the ECB and after consulting the advisory panel referred to in Article 5(3a), issue guidelines addressed to payment service providers in accordance with Article 16 of Regulation (EU) No 1093/2010 on the interpretation and practical use of the concept of 'gross negligence' in this context. Those guidelines shall be issued by [insert date - twelve months from the date of entry into force of this Directive] and be updated on a regular basis as appropriate.

Justification

At present, the concept of ‘gross negligence’ is interpreted and used in a very incoherent way across Member States. This state of affairs is a negative factor in cross-border activities and is not acceptable in the internal market. EBA guidelines, and the process of developing them, would be an appropriate way to improve coherence.

Amendment 140

Proposal for a directive

Article 66 – paragraph 2 b (new)

Text proposed by the Commission

Amendment

2b. In cases where the payer has neither acted fraudulently nor with intent failed to fulfil his obligations under Article 61, Member States may reduce the liability referred to in paragraph 1, taking into account, in particular, the nature of the personalised security features of the payment instrument and the circumstances under which it was lost, stolen or misappropriated.

Amendment 141

Proposal for a directive

Article 66 – paragraph 2 c (new)

Text proposed by the Commission

Amendment

2c. The payer shall not bear any financial consequences resulting from use of a lost, stolen or misappropriated payment instrument if the resulting unauthorised payment was made possible by a method or a security breach, that had already been known and documented and the payment service provider failed to enhance security schemes to effectively block further attacks of that kind, except where the payer himself has acted fraudulently.

Amendment 142

Proposal for a directive

Article 67 – paragraph 1 – subparagraph 2

Text proposed by the Commission

Amendment

At the payment service provider's request, the payer shall bear the burden to prove such conditions are met.

At the payment service provider's request, the payer shall provide factual elements relating to such conditions.

Justification

The Commission has, for no obvious reason, proposed to tilt the balance here in strong favour of the payee. To make the payer bear the full burden of proof does not seem reasonable, particularly not if the payer is a consumer. A more balanced solution is to keep the wording in the existing PSD.

Amendment 143

Proposal for a directive

Article 67 – paragraph 1 – subparagraph 3

Text proposed by the Commission

Amendment

The refund shall consist of the full amount of the executed payment transaction. This includes that the credit value date for the payer's payment account is no later than the date the amount had been debited.

deleted

Amendment 144

Proposal for a directive

Article 67 – paragraph 1 subparagraph 4

Text proposed by the Commission

Amendment

For direct debits the payer has an unconditional right for refund within the time limits set in Article 68, except where the payee has already fulfilled the contractual obligations and the services have already been received or the goods have already been consumed by the payer. At the payment service provider's request, the payee shall bear the burden to prove that the conditions referred to in the third subparagraph.

Member States shall ensure that, in addition to the right referred to in paragraph 1, for direct debits the payer has an unconditional right for refund within the time limits set in Article 68.

Justification

Experience has shown that an unconditional refund right for direct debits works well in practice. Such systems are efficient and there is no evidence that the right is being abused. It would therefore make sense to turn this into the internal market norm. In addition, it would be very unwise to make PSPs assess whether underlying contractual obligations have been fulfilled or not. This must not be a task of PSPs.

Amendment 145

Proposal for a directive

Article 67 – paragraph 3 a (new)

Text proposed by the Commission

Amendment

3a. 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 had been debited. Executing a refund of a payment itself shall not alter the underlying legal claim of the payee.

Amendment 146

Proposal for a directive

Article 67 – paragraph 3 b (new)

Text proposed by the Commission

Amendment

3b. Member States may allow their payment service providers to offer more favourable refund rights in accordance with their direct debit schemes providing that they are more advantageous to the payer.

Justification

To allow Member States to provide a higher level of consumer protection than what is proposed in this directive.

Amendment 147

Proposal for a directive

Article 67 a (new)

Text proposed by the Commission

Amendment

Article 67 a

Payment transactions where the transaction amount is not known in advance

1. For payment transactions, where the transaction amount is not known at the moment of the purchase, Member States shall set the maximum amount of funds which may be blocked on the payer's payment account and maximum time limits for which the funds may be blocked by the payee.

2. The payee shall be required to inform the payer prior to the transaction if funds exceeding the amount of the purchase would be blocked on the payer's payment account.

3. If funds exceeding the amount of the purchase have been blocked on the payer's payment account, this information shall be provided to the payer by his payment services provider in the account statement.

Amendment 148

Proposal for a directive

Article 68 – paragraph 1

Text proposed by the Commission

Amendment

1. Member States shall ensure that the payer can request the refund referred to in Article 67 of an authorised payment transaction initiated by or through a payee for a period of eight weeks from the date on which the funds were debited.

1. Member States shall ensure that the payer can request the refund referred to in Article 67 of an authorised payment transaction initiated by or through a payee for a period of at least eight weeks from the date on which the funds were debited.

Justification

To ensure that some MS can continue to extend the direct debit refund right past the 8 week limit set by the PSD II.

Amendment 149

Proposal for a directive

Article 69 – paragraph 1

Text proposed by the Commission

Amendment

1. Member States shall ensure that the point in time of receipt is the time when the payment order initiated directly by the payer or on his behalf by a third party payment service provider or indirectly by or through a payee is received by the payer's payment service provider. If the point in 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.

1. Member States shall ensure that the point in time of receipt is the time when the payment order initiated directly by the payer or on his behalf by a third party payment service provider or indirectly by or through a payee is received by the payer's payment service provider. The point in time of receipt cannot be later than the point in time of debiting the payer's account. If the point in 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.

Justification

The point in time of receipt for the purposes of Art 74 cannot be later than the point in time of debiting the payer’s account. Such a provision is necessary to avoid large acquirers abusing their market power to “agree” with payees that they can hold on the money for extended periods of time. Such abuse increases the cost of accepting card payments which is ultimately borne by consumers. Based on a proposal from BEUC.

Amendment 150

Proposal for a directive

Article 70 – paragraph 1 – subparagraph 1

Text proposed by the Commission

Amendment

1. Where the payment service provider refuses to execute a payment order, 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 legislation.

1. Where the payment service provider including, where applicable, the third-party 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 legislation.

Amendment 151

Proposal for a directive

Article 70 – paragraph 1 – subparagraph 3

Text proposed by the Commission

Amendment

The framework contract may include a condition that the payment service provider may charge for such a notification if the refusal is objectively justified.

The payment service provider shall not charge the payment service user for such a notification.

Justification

Notifications about refusals should be seen as basic standard information to the user and should therefore be provided free of charge.

Amendment 152

Proposal for a directive

Article 73 – paragraph 2

Text proposed by the Commission

Amendment

2. This Section shall apply to other payment transactions, unless otherwise agreed between the payment service user and the payment service provider, with the exception of Article 78, which is not at the disposal of the parties. However, when the payment service user and the payment service provider agree on a longer period than those laid down in Article 74, for intra-Union payment transactions such period shall not exceed 4 business days following the point in time of receipt in accordance with Article 69.

2. This Section shall apply to other payment transactions, unless otherwise agreed between the payment service user and the payment service provider, with the exception of Article 78, which is not at the disposal of the parties. However, when the payment service user and the payment service provider agree on a longer period than those laid down in Article 74, for intra-Union payment transactions such period shall not exceed 4 business days, or such time as permitted by other legal obligations covered by national and Union law, following the point in time of receipt in accordance with Article 69.

Justification

A prescribed time is unnecessary and possibly restrictive or non- compliant with other fraud prevention measures.

Amendment 153

Proposal for a directive

Article 74 – paragraph 1

Text proposed by the Commission

Amendment

1. Member States shall require the payer's payment service provider to ensure that, after the point in time of receipt in accordance with Article 69, the amount of the payment transaction is credited to the payee's payment service provider's account at the latest by the end of the next business day. These periods may be extended by a further business day for paper-initiated payment transactions.

1. Member States shall require the payer's payment service provider to ensure that, after the point in time of receipt in accordance with Article 69, the amount of the payment transaction is credited to the payee's payment service provider's account at the latest by the end of the next business day. That period may be extended by a further business day for paper-initiated payment transactions.

Amendment 154

Proposal for a directive

Article 79 – paragraph 5 a (new)

Text proposed by the Commission

Amendment

5a. Member States shall ensure that in case an attempt to recover the funds in accordance to paragraph 3 fails, the payment service provider of the wrongly addressed payee is obliged to provide all necessary information to the payer in order to contact the recipient of the funds and if necessary file a legal claim to re-collect them.

Amendment 155

Proposal for a directive

Article 80 – paragraph 1 – subparagraph 3

Text proposed by the Commission

Amendment

Where the payer's payment service provider or a third party payment service provider is liable under the first or the second subparagraph, the relevant payment service provider 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 the amount had been debited.

Amendment 156

Proposal for a directive

Article 80 – paragraph 1 – subparagraph 6

Text proposed by the Commission

Amendment

In the case of a non-executed or defectively executed payment transaction where the payment order is initiated by the payer, the 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.

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.

Amendment 157

Proposal for a directive

Article 80 – paragraph 2 – subparagraph 1

Text proposed by the Commission

Amendment

2. Where a payment order is initiated by or through the payee, the payment service provider shall, without prejudice to Article 63, Article 79(2) and (3), and Article 83, be liable to the payee for correct transmission of the payment order to the payment service provider of the payer in accordance with Article 74(3). Where the payee's payment service provider is liable under this subparagraph, he 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 should have been value dated in case of correct execution.

Amendment 158

Proposal for a directive

Article 80 – paragraph 2 – subparagraph 2

Text proposed by the Commission

Amendment

In addition, the payment service provider of the payee shall, without prejudice to Article 63, Article 79(2) and (3), and Article 83, be liable to the payee for handling the payment transaction in accordance with its obligations under Article 78. 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 should have been value dated in case of correct execution.

Amendment 159

Proposal for a directive

Article 80 – paragraph 2 – subparagraph 3

Text proposed by the Commission

Amendment

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 second 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 had been debited.

Amendment 160

Proposal for a directive

Article 80 – paragraph 2 – subparagraph 4

Text proposed by the Commission

Amendment

In the case of a late executed payment transaction, the payer may decide that the amount shall be value dated on the payee's payment account no later than the date the amount should have been value dated in case of correct execution. Where this is no longer technically possible, the payer shall also be compensated for loss of interest.

Amendment 161

Proposal for a directive

Article 82 – paragraph 1

Text proposed by the Commission

Amendment

1. Where the liability of a payment service provider under Article 80 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 Article 80. This shall include compensation where any of the payment service providers fail to use strong customer authentication.

1. Where the liability of a payment service provider under Articles 65 and 80 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 65 and 80. This shall include compensation where any of the payment service providers fail to use strong customer authentication.

Amendment 162

Proposal for a directive

Article 82 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

2a. EBA shall have the mandate to start and promote binding mediation to settle disputes between competent authorities arising out of the exercise of the rights granted in this Article.

Justification

This amendment is based on a contribution by the European Banking Authority (EBA).

Amendment 163

Proposal for a directive

Article 84 – paragraph 1

Text proposed by the Commission

Amendment

Any 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 Regulation (EC) No 45/2001.

1. Member States shall permit the processing of personal data by payment systems and payment service providers when this is necessary to safeguard the prevention, investigation and detection of payment fraud. The processing of such personal data shall be carried out in accordance with Directive 95/46/EC, the national rules which transpose Directive 95/46/EC and Regulation (EC) No 45/2001.

Justification

Exemption for the use of personal data by PSPs gives PSPs legal certainty when processing such data for the stated aims.

Amendment 164

Proposal for a directive

Article 84 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

1a. When processing personal data for the purposes of this Directive, the principles of necessity, proportionality, purpose limitation and proportionate data retention period shall be respected;

Amendment 165

Proposal for a directive

Article 84 – paragraph 1 b (new)

Text proposed by the Commission

Amendment

1b. In particular, any provider, agent, user processing personal data should only access, process and retain personal data that are necessary for the performance of its payments services.

Amendment 166

Proposal for a directive

Article 84 – paragraph 1 c (new)

Text proposed by the Commission

Amendment

1c. Privacy by design/privacy by default shall be embedded in all data processing systems developed and used within the framework of this Directive;

Amendment 167

Proposal for a directive

Article 84 – paragraph 1 d (new)

Text proposed by the Commission

Amendment

1d. The documents referred to in Article 5(j) shall, inter alia, also specify the measures aimed to respect the principles of security and confidentiality and to implement the principle of privacy by design and privacy by default.

Amendment 168

Proposal for a directive

Article 84 – paragraph 1 e (new)

Text proposed by the Commission

Amendment

1e. The development of standards and ensuring interoperability for the purposes of this Directive shall be based on privacy impact assessment, which shall allow for identifying which are the risks associated to each of the technical options available and which are the remedies that could be put in place to minimise data protection threats.

Amendment 169

Proposal for a directive

Article 85 – paragraph 1

Text proposed by the Commission

Amendment

1. Payment service providers are subject to Directive [NIS Directive] [OP please insert number of Directive once adopted] and notably to the risk management and incident reporting requirements in Articles 14 and 15 therein.

1. Payment service providers shall establish a framework with appropriate mitigation measures and control mechanisms to manage the operational risks, including 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 the detection and classification of major incidents.

Amendment 170

Proposal for a directive

Article 85 – paragraph 2

Text proposed by the Commission

Amendment

2. The authority designated under Article 6(1) of Directive [NIS Directive] [OP please insert number of Directive once adopted] shall without undue delay inform the competent authority in the home Member State and EBA of the notifications of NIS incidents received from payment services providers.

2. Payment service providers shall without undue delay notify any major operational incident, including security incidents, to the competent authority in the home Member State of the payment service provider.

Amendment 171

Proposal for a directive

Article 85 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

2a. Upon the receipt of the notification, the competent authority in the home Member State shall, without undue delay, provide the relevant details of the incident to EBA.

Justification

For consistency and to allow for the possibility that there are no relevant details to share.

Amendment 172

Proposal for a directive

Article 85 – paragraph 3

Text proposed by the Commission

Amendment

3. Upon receipt of the notification, and where relevant, EBA shall notify the competent authorities in the other Member States.

3. Upon receipt of the notification EBA shall, in cooperation with the competent authority in the home Member State, assess the relevance of the incident, and, based on that assessment, notify competent authorities in the other Member States.

Amendment 173

Proposal for a directive

Article 85 – paragraph 3 a (new)

Text proposed by the Commission

Amendment

3a. The national competent authority shall act preventively, if necessary, and in order to protect the immediate safety of the financial system.

Amendment 174

Proposal for a directive

Article 85 – paragraph 4

Text proposed by the Commission

Amendment

4. In addition to the provisions of Article 14(4) of Directive [NIS Directive] [OP please insert number of Directive once adopted], where the security incident has the potential of impacting the financial interests of the payment service users of the payment service provider, it shall without undue delay notify its payment service users of the incident and inform them of possible mitigation measures that they can take on their side to mitigate the adverse effects of the incident.

4. Where the security incident has the potential of impacting the financial interests of the payment service users of the payment service provider, it shall without undue delay notify its payment service users of the incident and inform them of all available mitigation measures that they can take on their side to mitigate the adverse effects of the incident.

Amendment 175

Proposal for a directive

Article 85 – paragraph 4 a (new)

Text proposed by the Commission

Amendment

4a. EBA shall, in close cooperation with the ECB and after consulting the advisory panel referred to in Article 5(3a), develop guidelines specifying the framework for the notification of major incidents referred in the above paragraphs. The guidelines shall specify the scope and treatment of information to be submitted, including the criteria of relevance of incidents and standard notification templates to ensure a consistent and efficient notification process.

Amendment 176

Proposal for a directive

Article 85 – paragraph 4 b (new)

Text proposed by the Commission

Amendment

4b. Member States shall ensure that payment service providers regularly provide data on fraud related to different means of payment to national competent authorities and to EBA.

Amendment 177

Proposal for a directive

Article 86 – paragraph 1

Text proposed by the Commission

Amendment

1. Member States shall ensure that payment service providers provide to the authority designated under Article 6(1) of Directive [NIS Directive] [OP please insert number of Directive once adopted] on a yearly basis updated information of the assessment of the operational and security risks associated with the payment services they provide and on the adequacy of the mitigation measures and control mechanisms implemented in response to these risks. The authority designated under Article 6(1) of Directive [NIS Directive] [OP please insert number of Directive once adopted] shall without undue delay transmit a copy of this information to the competent authority in the home Member State.

1. Member States shall ensure that payment service providers provide to the competent authority on a yearly basis updated and comprehensive information on the assessment of the operational and security risks associated with the payment services they provide and on the adequacy of the mitigation measures and control mechanisms implemented in response to these risks.

Amendment 178

Proposal for a directive

Article 86 – paragraph 2

Text proposed by the Commission

Amendment

2. Without prejudice to Articles 14 and 15 of Directive [NIS Directive] [OP please insert number of Directive once adopted], EBA shall, in close cooperation with the ECB, develop guidelines with regard to the establishment, implementation and monitoring of the security measures, including certification processes when relevant. It shall, inter alia, take into account the standards and/or specifications published by the Commission under Article 16(2) of Directive [NIS Directive] [OP please insert number of Directive once adopted].

2. EBA shall, in close cooperation with the ECB, develop implementing technical standards with regard to the establishment, implementation and monitoring of the security measures, including certification processes when relevant. It shall, inter alia, take into account the standards and/or specifications published by the Commission as well as the ECB Eurosystem's recommendations for the security of internet payments under the "SecuRePay" forum.

EBA shall submit those draft implementing technical standards to the Commission by ...*

Power is conferred on the Commission to adopt the implementing technical standards referred to in the first subparagraph in accordance with Articles 15 of Regulation (EU) No 1093/2010.

Justification

SecuRePay reference to avoid regulatory overlap. The ECB Recommendations will be in force in February 2015.

Amendment 179

Proposal for a directive

Article 86 – paragraph 3

Text proposed by the Commission

Amendment

3. EBA shall, in close cooperation with the ECB, review the guidelines on a regularly basis, but at least every two years.

3. EBA shall, in close cooperation with the ECB, review the implementing technical standards referred to in paragraph 2 on a regularly basis, but at least every two years.

Amendment 180

Proposal for a directive

Article 86 – paragraph 4

Text proposed by the Commission

Amendment

4. Without prejudice to Articles 14 and 15 of Directive [NIS Directive] [OP please insert number of Directive once adopted], EBA shall issue guidelines to facilitate payment service providers in qualifying major incidents and the circumstances under which a payment institution is required to notify a security incident. Those guidelines shall be issued by (insert date - two years of the date of entry into force of this Directive).

4. EBA shall coordinate the sharing of information in the area of operational and security risks associated with payment services with the competent authorities and the ECB.

Amendment 181

Proposal for a directive

Article 87 – paragraph 2

Text proposed by the Commission

Amendment

2. Where a payment service provider provides services referred to in point 7 of Annex I, it shall authenticate itself towards the account servicing payment service provider of the account owner.

2. Where a payment service provider provides services referred to in point 7 of Annex I, it shall authenticate itself towards the account servicing payment service provider of the account owner in accordance with the common and secure open standards of communication as defined under Article 94a.

Amendment 182

Proposal for a directive

Article 87 – paragraph 3

Text proposed by the Commission

Amendment

3. EBA shall, in close cooperation with the ECB, issue guidelines addressed to payment service providers as set out in Article 1(1) of this Directive in accordance with Article 16 of Regulation (EU) No 1093/2010 on state of the art customer authentication and any exemption to the use of strong customer authentication. Those guidelines shall be issued by (insert date - two years from the date of entry into force of this Directive) and be updated on a regular basis as appropriate.

3. EBA shall, in close cooperation with the ECB and after consulting the EDPS and the advisory panel referred to in Article 5(3a), issue guidelines addressed to payment service providers as set out in Article 1(1) of this Directive in accordance with Article 16 of Regulation (EU) No 1093/2010 on how third-party payment service providers are to be authenticate themselves towards account servicing payment service providers, on state of the art customer authentication and on any exemption to the use of strong customer authentication. Those guidelines shall enter into force before the final date of transposition of this Directive) and be updated on a regular basis as appropriate.

Amendment 183

Proposal for a directive

Article 88 – paragraph 1

Text proposed by the Commission

Amendment

1. 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 this Directive.

1. 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 or alternative dispute resolution (ADR) authorities with regard to payment service providers' alleged infringements of this Directive.

Justification

To accommodate the fact that not all competent authorities deal with complaints.

Amendment 184

Proposal for a directive

Article 89 – paragraph 1

Text proposed by the Commission

Amendment

1. Member States shall designate competent authorities to ensure and monitor effective compliance with this Directive. Those competent authorities shall take all necessary measures to ensure such compliance. They shall be independent from payment service providers. They shall be competent authorities within the meaning of Article 4(2) of Regulation (EU) 1039/2010.

1. Member States shall designate competent authorities to ensure and monitor effective compliance with this Directive. Those competent authorities shall take all necessary measures to ensure such compliance. They shall be independent from payment service providers. They shall be competent authorities as defined in Article 4(2) of Regulation (EU) 1093/2010.

Amendment 185

Proposal for a directive

Article 89 – paragraph 2

Text proposed by the Commission

Amendment

2. The authorities referred to in paragraph 1 shall possess all the powers 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.

2. The authorities referred to in paragraph 1 shall possess all the powers and resources necessary for the performance of their duties.

Amendment 186

Proposal for a directive

Article 89 – paragraph 4 a (new)

Text proposed by the Commission

Amendment

4a. 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 the relevant provisions under this Directive as set out under paragraph 1 above. Those guidelines shall be issued by ... * [insert date - two years from the date of entry into force of this Directive] and shall be updated on a regular basis, as appropriate.

Amendment 187

Proposal for a directive

Article 90 – paragraph 1


Text proposed by the Commission	Amendment
1. Member States shall ensure that payment service providers put in place adequate and effective consumer complaint resolution procedures for the settlement of complaints of payment service users concerning the rights and obligations arising under this Directive.	1. Member States shall ensure that payment service providers put in place and apply adequate and effective consumer complaint resolution procedures for the settlement of complaints of payment service users concerning the rights and obligations arising under this Directive, and shall monitor their performance in that regard.

Amendment 188

Proposal for a directive

Article 90 – paragraph 2

Text proposed by the Commission

Amendment

2. Member States shall require that payment service providers make every possible effort to reply, in writing, to the payment service users' complaints, addressing all points raised, within an adequate timeframe and at the latest within 15 business days. 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 consumer will receive the final reply. That deadline may not, in any case, exceed another 30 business days.

Justification

The procedure for answering to complaints must not be too drawn out. Even in exceptional cases, 15+15 business days should be enough.

Amendment 189

Proposal for a directive

Article 90 – paragraph 4

Text proposed by the Commission

Amendment

4. The information referred to in paragraph 2 shall be mentioned in an easily, directly, prominently and permanently accessible way on the website of the payment service provider, where one exists, in the general terms and conditions of the contract between the payment service provider and the payment service user and in invoices and receipts relating to such contracts. It shall specify how further information on the out-of-court redress entity concerned and on the conditions for using it can be accessed.

4. The information referred to in paragraph 3 shall be mentioned in a clear, comprehensible and easily accessible way on the trader's website, where one exists and if applicable in the general terms and conditions of the contract of sales or service contracts between the trader and a consumer.

Justification

The current provision goes beyond the detail in the Alternate Dispute Resolution Directive as it references invoices and receipts. Adding an additional requirement to provide this information on all receipts and invoices could be burdensome for small businesses and impractical for businesses that use a number of different ADR schemes, reflecting the range of goods and services they sell.

Amendment 190

Proposal for a directive

Article 91 – paragraph 1

Text proposed by the Commission

Amendment

1. Member States shall ensure that adequate and effective out-of-court complaint and redress procedures for the settlement of disputes between payment service users and payment service providers concerning the rights and obligations arising under this Directive are established according to the relevant national and Union legislation, using existing bodies where appropriate. Member States shall ensure that such procedures are applicable to payment service providers and that they also cover the activities of appointed representatives.

1. Member States shall ensure that adequate, independent, impartial, transparent and effective out-of-court complaint and redress procedures for the settlement of disputes between payment service users and payment service providers concerning the rights and obligations arising under this Directive are established according to the relevant national and Union legislation, using existing competent bodies where appropriate. Member States shall ensure that such procedures are applicable to and accessible by both users of payment services and payment service providers and that they also cover the activities of appointed representatives.

Amendment 191

Proposal for a directive

Article 91 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

1a. Member States shall ensure that payment service providers adhere to one or more ADR bodies.

Justification

Alignment with Directive 2013/11/EU on alternative dispute resolution for consumer disputes (Directive on consumer ADR).

Amendment 192

Proposal for a directive

Article 91 – paragraph 2

Text proposed by the Commission

Amendment

2. Member States shall require the bodies referred to in paragraph 1 to cooperate for the resolution of cross-border disputes concerning the rights and obligations arising under this Directive.

2. Member States shall require the bodies referred to in paragraph 1 to cooperate for the resolution of cross-border disputes concerning the rights and obligations arising under this Directive. Member States shall ensure that those bodies have sufficient capacity to engage in an adequate and efficient way in such cross-border cooperation.

Justification

It is quite common that out-of-court bodies are strong in a national perspective, but weak regarding cross-border affairs. In order for the internal market to function smoothly, cross-border capacities need to be strengthened.

Amendment 193

Proposal for a directive

Article 92 – paragraph 2 a (new)

Text proposed by the Commission

Amendment

2а. EBA shall issue guidelines on the penalties referred to in paragraph 2 and shall ensure that they are effective, proportionate and dissuasive.

Amendment 194

Proposal for a directive

Title 5

Text proposed by the Commission

Amendment

DELEGATED ACTS

DELEGATED ACTS AND TECHNICAL STANDARDS

Amendment 195

Proposal for a directive

Article 93 a (new)

Text proposed by the Commission

Amendment

Article 93a

Technical Standards

EBA shall develop regulatory technical standards to specify the conditions of application of the own funds requirements in Articles 7 and 8 and of the safeguarding requirements in Article 9.

Justification

This amendment is based on a contribution by the European Banking Authority (EBA).

Amendment 196

Proposal for a directive

Article 94 – paragraph 5

Text proposed by the Commission

Amendment

5. A delegated act adopted pursuant to Article 93 shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two 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 two months at the initiative of the European Parliament or of the Council.

5. A delegated act adopted pursuant to Article 93 shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of three 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 two months at the initiative of the European Parliament or of the Council.

Amendment 197

Proposal for a directive

Article 94 a (new)

Text proposed by the Commission

Amendment

Article 94a

Common and secure open standards of communication

1. EBA shall, in close cooperation with the ECB and after consulting the advisory panel referred to in Article 5(3a),develop draft regulatory technical standards in the form of common and secure open standards of communication to establish how account servicing payment service providers and third-party payment service providers or third-party payment instrument issuers are to communicate with each other.

EBA shall submit those draft regulatory technical standards the Commission by ...* [12 months of the entry into force of this Directive].

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.

2. The common and secure open standards of communication referred to in paragraph 1 shall include technical and functional specifications for the transmission of information and shall focus on optimising the security and the efficiency in the communication.

3. The common and secure open standards of communication shall in particular, on the basis of the provisions in Articles 58 and 87, specify how third-party payment service providers are to authenticate themselves towards account servicing payment service providers and how account servicing payment providers are to notify and inform third-party payment service providers.

4. EBA shall, in close cooperation with the ECB, ensure that the common and secure open standards of communication are developed after an appropriate consultation of all stakeholders in the payment services market including stakeholders operating outside the banking industry.

5. Member States shall ensure that the common and secure open standards of communication are used by the account servicing payment service providers, the for third-party payment service providers and third party payment issuers.

6. The common and secure open standards of communication shall be subject to regular review in order to take account of innovation and technical developments.

7. This Article shall not preclude the application of other obligations laid down in this Directive.

Amendment 198

Proposal for a directive

Article 94 b (new)

Text proposed by the Commission

Amendment

Article 94b

1. EBA shall make available on its website a list of all the authorised payment services providers within the Union.

2. That list shall refer to all authorised payment services providers whose registration as being revoked and the reasons for such.

3. All payment service providers shall offer direct links on their websites to the website of the home competent authority that lists all the authorised payment services provider.

Amendment 199

Proposal for a directive

Article 94 c (new)

Text proposed by the Commission

Amendment

Article 94c

Obligation to inform consumers of their rights

1. By ...* [two years after the entry into force of this Directive], the Commission shall, following a public consultation on a draft, 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.

2. The leaflet referred to in paragraph 1 shall be made available to all consumers in the Union and other interested parties on the websites of the Commission, EBA and national banking regulators and shall be easy to download and to transfer to other websites. The Commission shall inform Member States, payment service providers and consumer associations of the publication of the leaflet.

3. All payment service providers shall ensure that the leaflet in its original format is made available to all consumers, including non-customers, electronically on their websites and on paper at their branches, their agents and the entities to which their activities are outsourced.

At those branches, agents and entities, the following clearly legible notice containing the following text shall be displayed in a manner clearly visible to consumers: 'Ask at the counter for the text stating your rights as a payment services user'.

On their websites, the following clearly visible notice shall be displayed: 'Click here for your rights as a payment services user'. The payment service providers shall also ensure that such information is easily accessible by its clients at all times via their online accounts, when available.

4. The leaflet shall, in particular, be distributed electronically or on paper when the client enters into any type of contract or, for clients who are existing clients at the date of publication of the leaflet, by notifying them within one year of publication by the Commission of the leaflet.

5. All payment service providers shall offer direct links on their websites to the website of the competent authority that lists all the certified payment services providers.

6. Payment service providers shall not charge their clients for providing information under this Article.

7. In respect of blind and partially sighted persons, the provisions of this Article shall be applied using appropriate alternative means.

Amendment 200

Proposal for a directive

Article 95 – paragraph 2

Text proposed by the Commission

Amendment

2. 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 web-site or other easily accessible means.

Amendment 201

Proposal for a directive

Article 96 – paragraph 1 a (new)

Text proposed by the Commission

Amendment

By ...*, the Commission shall present a report, if appropriate accompanied by a legislative proposal, on the impact of including three-party schemes in the scope of the provisions regarding access to payment systems, having regard in particular to the level of competition and the market share of the card schemes.

____________

* OJ please insert date: 2 years after the date of entry into force of this Directive.

[1] Not yet published in the Official Journal.
[2] Not yet published in the Official Journal.

OPINION of the Committee on Legal Affairs (18.12.2013)

for the Committee on Economic and Monetary Affairs

Rapporteur: Dimitar Stoyanov

SHORT JUSTIFICATION

This proposal for a directive aims to assist the development of the European electronic payments market, as the digital economy is replacing traditional commerce and consumers are changing their payment habits. It is based on Article 114 of the Treaty on the Functioning of the European Union.

From the many views and comments on the proposal submitted by interested parties in an information gathering exercise, it is clear that the existing legal framework must be changed, the better to serve the needs of an effective European payments market contributing to a payments environment which nurtures competition, innovation and security.

In the interests of legal certainty and ensuring a level playing field, the current framework for payment services should be updated and supplemented, rules should be introduced to enhance transparency, innovation and security in the field of retail payments, and there should be more consistency among national rules.

The Commission’s impact assessment, analysing the potential consequences of not having an integrated European payments market, highlighted problems which had consequences for consumers, merchants, new payment services providers and the payment services market as a whole.

Several ways of improving the situation were identified: establishing a competitive level playing field between incumbents and new providers of card, internet and mobile payments; increasing the efficiency, transparency and choice of payment instruments for payment services users; and ensuring a high level of protection for such users.

The proposed new Directive contains several adaptations to the existing Payment Services Directive and certain new obligations for Member States, allowing them a considerable margin of discretion as to how these obligations are transposed in national law.

The proposed principles, rules, processes and standards must be the subject of a synchronised approach by all the Member States so as to achieve legal certainty and equality of treatment for all participants in the market.

The aims of the proposal are fully in line with EU policies in other areas such as data protection, administrative sanctions and the combating of money laundering and terrorist financing.

AMENDMENTS

The Committee on Legal Affairs calls on the Committee on Economic and Monetary Affairs, as the committee responsible, to incorporate the following amendments in its report:

Amendment 1 Proposal for a directive Article 4 – point 25
Text proposed by the Commission	Amendment
25. ‘agent’ means a natural or legal person which acts on behalf of a payment institution in providing payment services;	25. ‘agent’ means a natural or legal person which acts on behalf of and at the expense of a payment institution in providing payment services;
Amendment 2 Proposal for a directive Article 4 – point 28
Text proposed by the Commission	Amendment
28. ‘durable medium’ means any instrument which enables the payment service user to store information addressed personally to of that payment service user in a way accessible for future reference for a period of time adequate to the purposes of the information and which allows the unchanged reproduction of the information stored;	28. ‘durable medium’ means any instrument which enables the payment service user to store information addressed personally to that payment service user in a way easily accessible to him/her for future reference for a period of time adequate to the purposes of the information and which allows the unchanged reproduction of the information stored;
Amendment 3 Proposal for a directive Article 5 – paragraph 1 – point a
Text proposed by the Commission	Amendment
(а) a programme of operations, setting out in particular the type of payment services envisaged;	(а) a programme of operations, setting out all the types of payment services envisaged;
Amendment 4 Proposal for a directive Article 5 – paragraph 1 – point f
Text proposed by the Commission	Amendment
(е) a description of the procedure in place to monitor, handle and follow up a security incident and security related customer complaints, including an incidents reporting mechanism which takes account of the notification obligations of the payment institution laid down in Article 86;	(е) a description of the procedure in place to monitor, handle, follow up and resolve a security incident and security related customer complaints, including an incidents reporting mechanism which takes account of the notification obligations of the payment institution laid down in Article 86;
Amendment 5 Proposal for a directive Article 5 – paragraph 1 – point i
Text proposed by the Commission	Amendment
(i) a description on the principles and definitions applied for the collection of the statistical data performance, transactions and fraud;	(i) a description of the principles and definitions applied for the collection of the statistical data on performance, transactions and fraud, which must be in accordance with the applicable national law and with EU law;
Amendment 6 Proposal for a directive Article 9 – paragraph 1 – point b a (new)
Text proposed by the Commission	Amendment
	(ba) In cases where the funds of payment service users are to be used under a term payment order or direct debit and, before the end of the term or automatic payment, legal proceedings are opened against the user of the funds that result in their being frozen, the funds held by the payment institution may not be blocked if the term payment order or direct debit has been issued prior to the judicial decision to freeze the funds.
Amendment 7 Proposal for a directive Article 33 – paragraph 3 a (new)
Text proposed by the Commission	Amendment
	3а. Member States shall ensure that consumers who use switching services receive information on previous completed transactions from transferring payment service providers upon request, at a reasonable price and on a durable medium.
Amendment 8 Proposal for a directive Article 34
Text proposed by the Commission	Amendment
Member States may stipulate that the burden of proof shall lie with the payment service provider to prove that it has complied with the information requirements set out in this Title.	The burden of proof shall lie with the payment service provider to prove that it has complied with the information requirements set out in this Title.
Justification
The burden of proof in cases of non‑compliance with the requirements for the provision of information on payment services should be assumed by the payment service provider. Member States should not have the possibility of stipulating other options.
Amendment 9 Proposal for a directive Article 45 – paragraph 2 – point a
Text proposed by the Commission	Amendment
(а) a description of the main characteristics of the payment service to be provided;	(а) a clear description of the main characteristics of the payment service to be provided;
Amendment 10 Proposal for a directive Article 62 – paragraph 1 – point a
Text proposed by the Commission	Amendment
(а) to make sure that the personalised security features of the payment instrument are not accessible to parties other than the payment service user entitled to use the payment instrument, without prejudice to the obligations on the payment service user set out in Article 61;	(а) to make sure that the personalised security features of the payment instrument are indeed secure and are not accessible to parties other than the payment service user entitled to use the payment instrument, without prejudice to the obligations on the payment service user set out in Article 61;
Amendment 11 Proposal for a directive Article 66 – paragraph 1 – subparagraph 1
Text proposed by the Commission	Amendment
By way of derogation from Article 65 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.	By way of derogation from Article 65 the payer may be obliged to bear the losses relating to any unauthorised payment transactions, up to a maximum of EUR 50 or equivalent, resulting from the use of a lost or stolen payment instrument or from the misappropriation of a payment instrument.
Justification
The amount referred to is only stated in Euros, consideration needs to be given to Member States with a different currency and an equivalent amount in that Member State’s currency should be accepted, as the exchange rates change on a daily basis.
Amendment 12 Proposal for a directive Article 66 a (new)
Text proposed by the Commission	Amendment
	Article 66a
	Payment transactions for which the amount of the transactions is not known in advance
	1. In the case of payment transactions for which the amount is not known at the time of purchase, Member States should set a reasonable maximum amount of funds that may be blocked from the payment account of the payer, and a maximum time period in which those funds will be blocked by the payee.
	2. The payee shall be obliged to inform the payer prior to the payment transaction if funds exceeding the amount of the purchase are to be blocked from the payment account of the payer.
	3. If funds exceeding the amount of the purchase are blocked from the payment account of the payer, the payment service provider must inform the payer thereof in a statement of its account.
Justification
In many cases, the final price of the service provided is not known at the time of the transaction, and merchants such as car hire companies, hotels, etc. block for prolonged periods of time amounts that are higher than those required by the payer’s credit or debit card company. Such practices guarantee the merchant payment, but without the consumer being informed before making the payment transaction either by the merchant or by the payment service provider.
Amendment 13 Proposal for a directive Article 89 – paragraph 3
Text proposed by the Commission	Amendment
3. In the event of infringement or suspected infringement of the provisions of national law adopted pursuant to 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.	3. In the event of infringement or suspected infringement of the provisions of national law adopted pursuant to Titles III and IV, the competent authorities referred to in paragraph 1 of this Article shall be those of the host Member State of the payment service provider.
Justification
Monitoring of the current operations of payment service providers must be performed by the competent authorities of the host Member State because they are in the best position to do this. The authorities in the host Member State must be able to take direct action when the payment service provider fails to meet its obligations and responsibilities.
Amendment 14 Proposal for a directive Article 90 – paragraph 1
Text proposed by the Commission	Amendment
1. Member States shall ensure that payment service providers put in place adequate and effective consumer complaint resolution procedures for the settlement of complaints of payment service users concerning the rights and obligations arising under this Directive.	1. Member States shall ensure that payment service providers put in place and apply adequate and effective consumer complaint resolution procedures for the settlement of complaints of payment service users concerning the rights and obligations arising under this Directive, and shall monitor their performance in that regard.
Amendment 15 Proposal for a directive Article 90 – paragraph 4
Text proposed by the Commission	Amendment
4. The information referred to in paragraph 2 shall be mentioned in an easily, directly, prominently and permanently accessible way on the website of the payment service provider, where one exists, in the general terms and conditions of the contract between the payment service provider and the payment service user and in invoices and receipts relating to such contracts. It shall specify how further information on the out-of-court redress entity concerned and on the conditions for using it can be accessed.	4. The information referred to in paragraph 1 shall be mentioned in a clear, comprehensible and easily accessible way on the trader’s website, where one exists and if applicable in the general terms and conditions of sales or service contracts between the trader and a consumer.
Justification
The wording proposed goes further than the wording of the Alternative Dispute Resolution (ADR) Directive by adding requirements to provide this information on all receipts and invoices which could be burdensome for SMEs. It is best here to use the wording of Article 13(2) of the ADR Directive.
Amendment 16 Proposal for a directive Article 91 – paragraph 1
Text proposed by the Commission	Amendment
1. Member States shall ensure that adequate and effective out-of-court complaint and redress procedures for the settlement of disputes between payment service users and payment service providers concerning the rights and obligations arising under this Directive are established according to the relevant national and Union legislation, using existing bodies where appropriate. Member States shall ensure that such procedures are applicable to payment service providers and that they also cover the activities of appointed representatives.	1. Member States shall ensure that adequate and effective out-of-court complaint and redress procedures for the settlement of disputes between payment service users and payment service providers concerning the rights and obligations arising under this Directive are established according to the relevant national and Union legislation, using existing competent bodies where appropriate. Member States shall ensure that such procedures are applicable to and accessible by both users of payment services and payment service providers and that they also cover the activities of appointed representatives.
Amendment 17 Proposal for a directive Article 92 – paragraph 2 a (new)
Text proposed by the Commission	Amendment
	2а. The EBA shall issue guidelines on the sanctions under paragraph 2 and shall ensure that they are effective, proportionate and dissuasive.
Amendment 18 Proposal for a directive Article 94 – paragraph 5
Text proposed by the Commission	Amendment
5. A delegated act adopted pursuant to Article 93 shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of two 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 two months at the initiative of the European Parliament or of the Council.	5. A delegated act adopted pursuant to Article 93 shall enter into force only if no objection has been expressed either by the European Parliament or the Council within a period of three 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 two months at the initiative of the European Parliament or of the Council.
Justification
The time limit for making objections needs to be increased, in order to enable Parliament and the Council to examine the delegated act in depth and to assess whether its adoption in that form is fitting and correct.
Amendment 19 Proposal for a directive Article 95 – paragraph 2
Text proposed by the Commission	Amendment
2. 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 web-site or other easily accessible means.	2. 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 web-site or other easily accessible means and shall advise Parliament of it at the same time.

PROCEDURE

Title	Payment services in the internal market
References	COM(2013)0547 – C7-0230/2013 – 2013/0264(COD)
Committee responsible Date announced in plenary	ECON 8.10.2013
Opinion by Date announced in plenary	JURI 8.10.2013
Rapporteur Date appointed	Dimitar Stoyanov 14.10.2013
Discussed in committee	26.11.2013
Date adopted	17.12.2013
Result of final vote	+: –: 0:	23 0 0
Members present for the final vote	Raffaele Baldassarre, Sebastian Valentin Bodu, Françoise Castex, Christian Engström, Marielle Gallo, Giuseppe Gargani, Lidia Joanna Geringer de Oedenberg, Klaus-Heiner Lehne, Antonio López-Istúriz White, Antonio Masip Hidalgo, Alajos Mészáros, Bernhard Rapkay, Evelyn Regner, Dimitar Stoyanov, Rebecca Taylor, Alexandra Thein, Cecilia Wikström, Tadeusz Zwiefka
Substitute(s) present for the final vote	Eva Lichtenberger, József Szájer, Axel Voss
Substitute(s) under Rule 187(2) present for the final vote	Silvia Costa, Jürgen Klute, Kay Swinburne

PROCEDURE

Title	Payment services in the internal market
References	COM(2013)0547 – C7-0230/2013 – 2013/0264(COD)
Date submitted to Parliament	24.7.2013
Committee responsible Date announced in plenary	ECON 8.10.2013
Committee(s) asked for opinion(s) Date announced in plenary	ITRE 8.10.2013	IMCO 8.10.2013	JURI 8.10.2013
Not delivering opinions Date of decision	ITRE 25.9.2013	IMCO 25.9.2013
Rapporteur(s) Date appointed	Diogo Feio 10.9.2013
Discussed in committee	5.11.2013	17.12.2013	12.2.2014
Date adopted	20.2.2014
Result of final vote	+: –: 0:	36 0 0
Members present for the final vote	Marino Baldini, Jean-Paul Besset, Sharon Bowles, George Sabin Cutaş, Rachida Dati, Leonardo Domenici, Diogo Feio, Ildikó Gáll-Pelcz, Jean-Paul Gauzès, Sven Giegold, Sylvie Goulard, Liem Hoang Ngoc, Syed Kamall, Jürgen Klute, Hans-Peter Martin, Alfredo Pallone, Antolín Sánchez Presedo, Olle Schmidt, Peter Simon, Theodor Dumitru Stolojan, Kay Swinburne, Sampo Terho, Corien Wortmann-Kool, Pablo Zalba Bidegain
Substitute(s) present for the final vote	Fabrizio Bertot, Herbert Dorfmann, Bas Eickhout, Sari Essayah, Ashley Fox, Sophia in ‘t Veld, Olle Ludvigsson, Thomas Mann, Catherine Stihler, Nils Torvalds, Emilie Turunen
Substitute(s) under Rule 187(2) present for the final vote	Marta Andreasen
Date tabled	12.3.2014

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