However, as the EBA notes in the Opinion, Case C-191/17 drew an analogy from the definition of a “payment account” under the Payments Account Directive (PAD), which is narrower than the definition under PSD2. Many PSPs have relied on the decision of the Court of Justice of the European Union in Case C-191/17, and the EBA’s response to question 2018 4272 (which references this case) in its Q&A on PSD2 (EBA Q&A), which indicate that only an account that can both send and receive funds is a payment account. It also determines whether accessing an account online triggers a requirement to apply strong customer authentication (SCA). ![]() This is significant because account servicing PSPs (ASPSPs) are only required to grant payment initiation service providers (PISPs) and account information service providers (AISPs) (together, TPPs) access to the accounts they provide if those accounts are payment accounts. There continues to be legal uncertainty regarding the scope of the term “payment account” under PSD2. However, it suggests that a PI or EMI might be considered to be “significant” if it is “ likely to have an impact on the payments’ market and the economy overall, or to have a spill-over effect on other financial institutions, including across borders.” It does not elaborate on the meaning of “systemic.” As the EBA acknowledges, these are not concepts that exist under PSD2/EMD2, and they would need to be defined. It also refers to “systemic” PIs and EMIs. If a similar approach were adopted by the EC in relation to all regulated payment services, this could amount to a major extension of the extraterritorial application of PSD2.Īt various points in the Opinion, the EBA proposes introducing certain additional prudential requirements (see below) to “significant” PIs and EMIs. This could have significant implications for some merchant acquiring business models. However, the EBA also states in the Opinion that in its view, an acquirer from a non-EU country cannot provide acquiring services to EU merchants “ since the service is provided within the EU and the respective PSP that provides it should be authorised within the EU.” It would appear, therefore, that the EBA considers that the place of provision of an acquiring service is determined by the location of the merchant. The EBA stresses the need for clarity on how to identify the place of provision of services that are provided online but acknowledges that this is something that needs to be addressed at a broader level for the entire financial sector and beyond. The Opinion recognises that there is uncertainty regarding the territorial scope of PSD2 (including regulatory authorisation requirements), especially where payment services are provided online. Depending on how the two regimes are merged, this could result in changes to the way EMIs are regulated and the rules that apply in relation to issuing electronic money. It believes this will bring greater clarity and reduce the overall complexity of the payment services and electronic money regulatory regime. The EBA is strongly supportive of merging PSD2 and the second Electronic Money Directive (EMD2), with the aim of avoiding regulatory arbitrage and ensuring technological and business model neutrality. The Opinion is relevant to payment service providers (PSPs) (e.g., banks, payment institutions (PIs), and electronic money institutions (EMIs)) and other firms operating in the EU payments sector (e.g., card schemes and providers of technological services to PSPs) as well as merchants, particularly providers of unregulated cards and/or e-commerce services. ACCOUNT ACCESS REQUIREMENTS AND OPEN FINANCEĦ. ![]() We have set out below a summary of some of key proposals in the Opinion.ģ. In the Opinion, the EBA sets out its findings on the implementation of PSD2 and its suggestions as to how to address the issues it has identified in a revised Directive (PSD3). The Opinion is the EBA’s response to the European Commission’s (EC) call for advice published 20 October 2021. On 23 June 2022, the European Banking Authority (EBA) published an opinion (the Opinion) on the review of the second Payment Services Directive (PSD2).
0 Comments
Leave a Reply. |