Changes from plenary report to adopted text

(129) An effective supervisory system requires that supervisors are aware of the weaknesses in payment services providers’ compliance with rules in this Regulation. It is therefore important that supervisors be able to inform one another of administrative sanctions and measures imposed on payment services providers, when such information would be relevant for other supervisors too.

(130) The effectiveness of the Union framework for payment services depends on cooperation between a wide array of competent authorities, including national authorities responsible for taxation, data protection, competition, consumer protection, audit, police and other enforcement authorities. Member States should ensure that their legal framework allows and facilitates such cooperation as required, to achieve the goals of the Union framework for payment services also through the proper enforcement of its rules. Such cooperation should include exchange of information as well as mutual assistance for effective enforcement of administrative sanctions, in particular in the cross-border recovery of pecuniary penalties.

(131) Irrespective of their denomination under national law, forms of expedited enforcement procedure or settlement agreements can be found in many Member States and are used as an alternative to formal proceedings to achieve a swifter adoption of a decision aiming at imposing an administrative sanction or administrative measure or to put an end to the alleged breach and its consequences before formal sanctioning proceedings are started. While it does not appear appropriate to strive to harmonize at Union level such enforcement methods introduced by many Member States, due to the very varied legal approaches adopted at national level, it should be acknowledged that such methods allow competent authorities that can apply them to handle infringement cases in a speedier, less costly and overall efficient way under certain circumstances, and should therefore be encouraged. However, Member States should not be under the obligation to introduce such enforcement methods in their legal framework nor to compel competent authorities to use them if they do not deem it appropriate.

(132) Member States have established and currently provide for a diverse range of administrative sanctions and administrative measures for breaches of the key provisions regulating the provisions of payment services and inconsistent approaches to investigating and sanctioning violations of those provisions. Failing to set out more clearly what core provisions must trigger sufficiently dissuasive enforcement everywhere in the Union would thwart the achievement of the single market for payment services and would risk incentivising forum shopping insofar as competent authorities are unevenly equipped to enforce promptly and with the same deterrence these infringements in the Member States.

(133) Since the purpose of the periodic penalty payments is to compel natural or legal persons who are identified as responsible for an ongoing infringement or are required to comply with an order from the investigating competent authority, to comply with that order or terminate the ongoing breach, the application of periodic penalty payments should not prevent competent authorities from imposing subsequent administrative sanctions for the same infringement.

(134) Unless otherwise provided for by Member States, periodic penalty payments should be calculated on a daily basis.

(135) Competent authorities should be empowered by Member States to impose such administrative sanctions and administrative measures on payment services providers or other natural or legal persons where relevant to remedy the situation in the case of infringement. The range of sanctions and measures should be sufficiently broad to allow Member States and competent authorities to take account of the differences between payment service providers, in particular between credit institutions and other payment institutions, as regards their size, characteristics and the nature of the business.

(136) The publication of an administrative sanction or measure for infringement of provisions of this Regulation can have a strong dissuasive effect against repetition of such infringement. Publication also informs other entities of the risks associated with the sanctioned payment services provider before entering into a business relationship and assists competent authorities in other Member States in relation to the risks associated with a payment services provider when it operates in their Member States on a cross-border basis. For those reasons, the publication of decisions on administrative sanctions and administrative measures should be allowed as long as it concerns legal persons. In taking a decision whether to publish an administrative sanction or administrative measure, competent authorities should take into account the gravity of the infringement and the dissuasive effect that the publication is likely to produce. However, any such publication referred to natural persons may impinge on their rights stemming from the Charter of Fundamental Rights and the applicable Union data protection legislation in a disproportionate manner. Therefore, publication should occur in an anonymised way unless the competent authority deems it necessary to publish decisions containing personal data for the effective enforcement of this Regulation, including in the case of public statements or temporary bans. In such cases the competent authority should justify its decision.

(137) To collect more accurate information on the level of compliance with Union law on the ground, while giving competent authorities’ enforcement activity more visibility, it is necessary to enlarge the scope and improve the quality of the data that competent authorities report to the EBA. Information to be reported should be anonymised to comply with data protection rules in force and provided in aggregated form to comply with professional secrecy and confidentiality rules as regards proceedings. The EBA should report regularly to the Commission on the progress of enforcement actions in the Member States.

(138) The power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission to update, to take account of inflation, the amounts up to which a payer may be obliged to bear the losses relating to any unauthorised payment transactions resulting from the use of a lost or stolen payment instrument or from the misappropriation of a payment instrument. The Commission, when preparing delegated acts, should ensure a simultaneous, timely and appropriate transmission of relevant documents to the European Parliament and to the Council.

(139) In order to ensure consistent application of this Regulation, the Commission should be able to rely on the expertise and support of the EBA, which should have the task of preparing guidelines and draft Regulatory and Implementing Technical Standards. The Commission should be empowered to adopt those draft Regulatory Technical Standards. The EBA should, when developing guidelines, draft Regulatory Technical Standards and draft Implementing Technical Standards pursuant to this Regulation and in accordance with Regulation (EU) No 1093/2010, consult all relevant stakeholders, including those in the payment services market, reflecting all interests involved.

(140a) The EBA should be granted all necessary resources, including human resources, to fulfil its mandate under this Regulation.

(141) The Annex to Regulation (EU) 2017/2394 of the European Parliament and of the Council should be amended to include a reference to this Regulation to facilitate cross-border cooperation on the enforcement of this Regulation.

(142) Since the objective of this Regulation, namely further integration of an internal market in payment services, cannot be sufficiently achieved by the Member States because it requires harmonisation of various different rules in Union and national law, but can rather, by reason of its scale and effects, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union. In accordance with the principle of proportionality as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective.

(143) Considering that this Regulation and Directive (EU) XXX (PSD3) lay down the legal framework governing the provision of retail payment services and electronic money services within the Union, to ensure legal certainty and consistency of the Union’s legal framework, this Regulation should apply from the same date as the date of application of the laws, regulations and administrative provisions that Member States are required to adopt to comply with Directive (EU) XXX (PSD3). However, the provisions requiring payment service providers to verify discrepancies between the name and unique identifier of a payee in case of credit transfers and the respective liability regime should apply from 24 months after the date of entry into force of this Regulation, thus granting payment service providers enough time to take the necessary steps to adjust their internal systems, to comply with such requirements.

(144) In keeping with the principles of better regulation, this Regulation should be reviewed for its effectiveness and efficiency in achieving its objectives. The review should take place a sufficient time after the date of application of this Regulation for adequate evidence to exist on which the review can be based. Five years is considered to be an appropriate period. While the review should consider this Regulation as a whole, certain topics should be singled out for particular attention, namely the functioning of open banking, the charging for payment services and further solutions to combat fraud. Regarding the scope of this Regulation, however, it is appropriate for a review to take place earlier, three years after entry into application, given the importance attached to that subject in Article 58(2) of Regulation (EU) 2022/2554 of the European Parliament and of the Council. That review of scope should consider both the possible extension of the list of covered payment services to include services such as those performed by payment systems and payment schemes, and the possible inclusion in the scope of some technical services currently excluded.

(145) This Regulation respects fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union, including the right to respect for private and family life, the right to protection of personal data, the freedom to conduct a business, the right to an effective remedy and the right not to be tried or punished twice in criminal proceedings for the same offence. This Regulation must be applied in accordance with those rights and principles.

(146) References to amounts in euro, are to be understood as the national currency equivalent as determined by each non-euro Member State.

(146a) Consumers should have access to proportionate and effective remedies, including compensation for any damage suffered by them. Those remedies should be without prejudice to the application of other remedies available to consumers under Union or national law.

(147) The European Data Protection Supervisor was consulted in accordance with Article 42(1) of Regulation (EU) 2018/1725 of the European Parliament and of the Council and delivered an opinion on [XX XX 2023],

HAVE ADOPTED THIS REGULATION:

Subject matter

1. This Regulation lays down uniform requirements on the provision of payment services and electronic money services, as regards:

(a) the transparency of conditions and information requirements for payment services and electronic money services;

(b) the respective rights and obligations of payment and electronic money service users, and of payment and electronic money service providers in relation to the provision of payment services and electronic money services.

2. Unless specified otherwise, any reference to payment services shall be understood in this Regulation as meaning payment and electronic money services.

3. Unless specified otherwise, any reference to payment service providers shall be understood in this Regulation as meaning payment service providers and electronic money service providers.

3a. The processing of personal data under this Regulation is subject to Regulation (EU) 2016/679.

Scope

1. This Regulation applies to payment services provided within the Union by the following categories of payment service providers:

(a) credit institutions as defined in Article 4(1), point (1) of Regulation (EU) No 575/2013 of the European Parliament and of the Council, including branches thereof where such branches are located in the Union, whether the head offices of those are located within the Union or outside the Union;

(b) post office giro institutions which are entitled under national law to provide payment services;

(c) payment institutions;

(d) the ECB and national central banks when not acting in their capacity as monetary authority or other public authorities;

(e) Member States or their regional or local authorities when not acting in their capacity as public authorities.

2. This Regulation does not apply to the following services:

(a) payment transactions made exclusively in cash directly from the payer to the payee, without any intermediary intervention;

(b) payment transactions from the payer to the payee through a commercial agent, as defined in Article 1(2) of Directive 86/653/EEC, provided that all of following conditions are met : i) the commercial agent is authorised via an agreement to negotiate or conclude the sale or purchase of goods or services on behalf of only the payer or only the payee, but not both of them, irrespective of whether or not the commercial agent is in the possession of the client’s funds, and ii) such agreement gives the payer or the payee a real margin to negotiate with the commercial agent or conclude the sale or purchase of goods or services;

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

(d) services where cash is provided by the payee to the payer as part of a payment transaction for the purchase of goods and services, following an explicit request by the payment service user just before the execution of the payment transaction;

(e) services where cash is provided voluntarily in retail stores following an explicit request by the payment service user but independently of the execution of any payment transaction and without any obligation to make a purchase of goods and services. The payment service user shall be provided with information on any possible charges for this service before the requested cash is provided;

(f) payment transactions based on any of the following documents drawn on the payment service provider to place funds at the disposal of the payee:

(i) paper cheques governed by the Geneva Convention of 19 March 1931 providing a uniform law for cheques;

(ii) paper cheques similar to those referred to in point (i) and governed by the laws of Member States which are not party to the Geneva Convention of 19 March 1931 providing a uniform law for cheques;

(iii) paper-based drafts referred to in the Geneva Convention of 7 June 1930 providing a uniform law for bills of exchange and promissory notes;

(iv) paper-based drafts similar to those referred to in point (iii) and governed by the laws of Member States which are not party to the Geneva Convention of 7 June 1930 providing a uniform law for bills of exchange and promissory notes;

(v) paper-based vouchers;

(vi) paper-based traveller’s cheques;

(vii) paper-based postal money orders as defined by the Universal Postal Union;

(g) payment transactions carried out within a payment or securities settlement system between settlement agents, central counterparties, clearing houses or central banks and other participants of the system, and payment service providers, without prejudice to Article 31;

(h) payment transactions related to securities asset servicing, including dividends, income or other distributions, or redemption or sale, carried out by persons as referred to in point (g) or by investment firms, credit institutions, collective investment undertakings or asset management companies providing investment services and any other entities allowed to have the custody of financial instruments;

(ha) payment transactions used for the execution of trading and settlement services using electronic money tokens as defined in Article 3(1), point (7), of Regulation (EU) 2023/1114 of the European Parliament and of the Council, where the payment service provider has already been authorised as a crypto-asset service provider in a Member State for those services under Title V of that Regulation;

(i) without prejudice to Article 23(2), and Articles 58 and 87, services provided by technical service providers;

(j) services based on specific payment instruments that meet one of the following conditions:

(i) instruments allowing the holder to acquire goods or services only in the physical or virtual premises of the issuer or within a single limited network of service providers under direct commercial agreement with a professional issuer;