sou · H4B353d2 · 2016-08-31 00:00:00 — The first part, presented in the Inquiry’s interim report in 2015, concerns the amend- ments to Swedish law required to supplement Regulation (EU) 2015/751 of Parliament and of the Council of on interchange fees for card-based payment transactions (EU Regulation on Interchange Fees). The second part of the remit was presented in an interim report in January 2016 and concerns the implementation in Swedish law of Directive 2014/92/EU of Parliament and of 2014 on the comparability of fees related to payment accounts, payment account switching and access to payment accounts with basic features (the Payment Accounts Directive). This final part of the remit concerns the implementation of the second directive on payment services, Directive (EU) 2015/2366 of Parliament and of the Council of on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC. EU Regulation on Interchange Fees The EU Regulation on Interchange Fees contains provisions on inter- change fee caps that may be charged in certain cases by the card acquirer from the card-issuing bank on card payments. Under the Regulation, the interchange fee for consumers’ debit card trans- actions may not exceed 0.2 per cent of the value of the transaction. For their credit card transactions, the fee may not exceed 0.3 per cent of the value of the transaction. Scope for national regulation of domestic transactions The caps laid down in the Regulation apply to cross-border trans- actions. For domestic transactions, Member States may introduce other, generally lower, caps than those specified in the Regulation. The Inquiry does not propose the introduction of any national regulation of cap levels in . The Inquiry further proposes that certain ‘three-party payment card schemes’ covered by caps under the Regulation be exempted from applying caps on domestic transactions. This exemption is to apply for the three years admitted under the Regulation. The Inquiry proposes that supervisory responsibility in to ensure compliance with the EU Regulation on Interchange Fees be divided between the tionen (the Financial Supervisory Authority). is to be the competent authority with regard to the obli- gation of payees that do not accept all cards to inform consumers about this. is to be the competent authority with regard to compliance with the other provisions of the Regu- lation. The EU Regulation on Interchange Fees obliges Member States to offer out-of-court settlement in disputes between payees and their payment service providers arising in connection with the appli- cation of the Regulation. The Inquiry does not consider that any special dispute settlement body should be established or designated. In the Inquiry’s assessment, the existing alternative dispute resolu- tion options are sufficient to meet the Regulation’s requirements. The interchange fee caps in the EU Regulation on Interchange Fees begin to apply from . The proposed exemption for certain three-party payment card schemes should be applicable by then. Accordingly, it is proposed that this proposal enter into force on . In 2014, Parliament and the Council adopted Directive 2014/92/EU on the comparability of fees related to pay- ment accounts, payment account switching and access to payment accounts with basic features (the Payment Accounts Directive). The Payment Accounts Directive aims to improve the transparency and comparability of fees charged for consumers’ payment accounts and the payment services linked to such accounts. It also contains regulations to facilitate switching between payment accounts at different credit institutions. Under the Directive, all consumers who are legally resident in Union must also be given access to a payment account with basic features. In addition to ser- vices required to open, operate and close an account, basic features must include depositing funds, cash withdrawal at the counter or at automated , and the execution of payment trans- actions in the form of direct debits, payment transactions through payment cards, and credit transfers, including standing orders at terminals and counters and via online banking. These accounts and services are to be offered free of charge or for a reasonable fee. In addition, the Directive contains provisions on the right to alter- native dispute resolution, and on sanctions and supervision. to a payment account The Inquiry proposes that the right to open and use a payment account linked to certain basic features apply to consumers legally resident in Economic Area (EEA). Under the Pay- ment Accounts Directive, this right must include consumers with no fixed address, asylum seekers and consumers who have not been granted a permit but whose expulsion is not possible for legal or factual reasons. An application for a payment account may be refused if there is an impediment under money laundering regu- lations, for example if the credit institution is unable to reliably identify the customer. There should also be some scope for refusal for specific reasons, which targets the risk of abusing the right to open and use a payment account. However, consumers’ financial circumstances or credit history must never be used as a reason for refusal. The Inquiry was also instructed to consider whether the right to open and use a payment account should be expanded to include actors other than consumers. Certain difficulties in accessing accounts with basic payment services have been observed for some business operators, particularly those that have, or have had, payment problems. At the same time, business operators are generally in need of pay- ment services other than those included in the basic features. There is no information about whether non-profit organisations currently have difficulty accessing payment accounts. The Inquiry has made the assessment that any regulation also giving business operators and non-profit organisations the right to open and use payment accounts could not be restricted to Swedish business operators or associations. Extending the right to payment accounts and payment services to foreign companies and associations could lead to diffi- culties in applying legislation on money laundering and terrorist financing. It could also have other consequences that are difficult to foresee. Considering that the basic features that could be linked to a payment account correspond only in part to the need that businesses have for payment services, the Inquiry’s assessment is that the advantages of extending the regulations do not outweigh the disadvantages. Accordingly, the right to open and use payment accounts should be limited to consumers. Access to cash services Although not all credit institutions provide all the payment services included in the basic features, access to services is generally good. One area identified as more problematic is access to cash services. The Inquiry’s terms of reference also specifically raised the issue of which legislative measures need to taken to enable the deposit and withdrawal of cash from payment accounts. Both the use of cash and the handling of cash by banks are de- clining at a rapid pace. Phasing out cash handling is problematic for certain groups and in certain limited geographical areas. However, as a result of technological developments and expanded IT infra- structure, the need for cash is also expected to decline in the long term for these groups and in these areas. Consequently, in the In- quiry’s view, the legislative measures that could be taken to satisfy the remaining need for cash are not proportionate to the scale of the problems. Under the Payment Accounts Directive, payment service providers are required to provide a service for switching payment accounts between different providers, and the Directive contains regulations about the various steps of the switching process. However, Mem- ber States are allowed to establish or maintain alternative arrange- ments if this is clearly in the interests of the consumer and the switch is completed within, as a maximum, the same overall time frame of the switching service under the Directive. has an efficient routine for switching banks. Although it is for members of the Swedish Bankers’ Association, a number of banks that are not members of the Association also use the same routine. The existing bank switching routine is simpler for and quicker to complete than the switching service under the Pay- ment Accounts Directive. Existing bank switching routines will therefore also be applied in the future. Furthermore, the Inquiry proposes that all banks be obliged to have a bank-switching routine in place. Possibility of comparing fees The Payment Accounts Directive contains a number of provisions designed to make it easier for consumers to compare fees for payment accounts and services that can be linked to such accounts. Rules on the obligations of credit institutions to provide standardised infor- mation to consumers will be introduced in national law. Finans- inspektionen will be tasked with running a fee-comparison website that consumers are to have access to under the Payment Accounts Directive. The Payment Accounts Directive will be implemented in national law no later than . Under the proposal, the suggested legislative amendments, which primarily entails a new chapter being introduced in the Act (2010:751), will enter into force on that date. In , Parliament and the Council adop- ted the second Directive (PSD2). This Directive includes and repeals Directive 2007/64/EC1 (the original Directive), which was implemented in Swedish law through the Act (2010:751) and the Act on Unauthorised Transactions with (2010:738). PSD2 aims primarily to help develop an EU-wide market for electronic payments and create better conditions for secure and efficient payments. PSD2 expands the term ‘payment service’ to cover payment initiation services and account information services. The Directive’s scope of application has been expanded with regard to geographical area and currencies. Under certain conditions, it also gives payment institutions the right of access to credit institutions’ payment accounts services. In addition, PSD2 contains several amendments in relation to the original Directive. To enable implementation of PSD2 regulations, the Inquiry pro- poses several amendments to the Act. These pro- posals are summarised under the respective headings below. 1 Directive 2007/64/EC of Parliament and of the Council of on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC. The term ‘payment service’ The Inquiry proposes that the term ‘payment service’ in the Pay- ment Services Act be expanded to include payment initiation ser- vices and account information services. The term ‘payment initiation service’ is defined in Article 4(15) of PSD2 as “a service to initiate a payment order at the request of the payment service user with respect to a payment account held at another payment service provider”. A provider of such a service makes it easier for the individual payment service user to pay on- line traders, for example, directly via their own internet bank. The term ‘account information service’ is defined in Article 4(16) as “an online service to provide consolidated information on one or more payment accounts held by the payment service user with either another payment service provider or with more than one payment service provider”. A provider of such a service consolidates data from several accounts for in a transparent way through, for example an app feature. The Inquiry proposes that the scope of the Act be expanded by also making the regulations in the fourth and fifth chapters, with the exception of certain provisions, applicable to the parts of a payment transaction completed in the EEA in a third country currency, if all, or only one, of the payment service pro- viders involved in the payment transaction are established in the area, and for the parts of a payment transaction completed in Union in all currencies, if any of the payment service providers involved in the transaction are established in the area. The Inquiry also proposes that cash-in-transit companies’ ‘coun- ting services’ not be exempted from the scope of the Act, which is currently the case. Finally, the Inquiry proposes that an exemption should be made from the scope of the Act for payment transactions completed using mobile telephones or other technological devices, for example when purchasing an SMS ticket for a journey. One condition for such transactions being exempted is that the cost of the transaction is not to exceed an amount corresponding to . Third-party payment service providers Providers of payment initiation services and account information services – known as ‘third-party payment service providers’ – are payment service providers under PSD2. To enable the implemen- tation of the Directive’s authorisation requirement provisions for providers of payment initiation services, the Inquiry proposes that authorisation always be required for provision of these services. Authorisation to provide such services must require that the under- taking in question holds professional indemnity insurance or a comparable guarantee that covers any potential liabilities. The Inquiry proposes that a natural or legal person providing only account information services should be exempted from the authorisation requirement in the Act. These actors, however, are required to apply for exemption from the authorisa- tion requirement, after which – if exemption is granted – they must be registered by . A natural or legal person pro- account information services may be registered only if the undertaking fulfils certain requirements, for example that the provider has professional indemnity insurance or a comparable guarantee against liability. A payment service user has the right to use payment initiation services or account information services if the payment account affected by the service is accessible online. A payment service user has the right to use these services irrespective of whether there is an agreement between the account servicing payment service provider and the third-party payment service provider. An account servicing payment service provider may only in exceptional cases deny a provider of payment initiation services or of account information services access to a payment service user’s payment account. The Inquiry proposes that the regulations in the Directive on the obligations incumbent on the provider of payment initiation services or account information services be stated in the Act. For example, for each communication session, the provider is required to identify itself towards the account servicing payment service provider of the payment service user and securely communicate with it. The account servicing payment service pro- vider, for its part, is required to treat payment orders transmitted through the services of a payment initiation service provider, or data requests transmitted through the services of an account informa- tion service provider, without discrimination for other than for objective reasons. The Inquiry proposes that the provisions implementing PSD2’s regulations on obligations in relation to the issuing and use of pay- ment instruments, and on liability in the case of unauthorised trans- actions, be gathered in the Act, and accordingly that the Act on Unauthorised Transactions with cease to apply. As a general rule, the payer’s payment services provider is re- quired to refund the payer the amount of the unauthorised trans- action. This does not apply if the payment service provider has reasonable grounds for suspecting the transaction involved fraud. The payer may be obliged to bear the losses relating to any un- authorised transactions, up to the sum of , if the transaction resulted from the use of a lost, stolen or misappropriated payment instrument. This excess amount will not be payable if the loss, theft or misappropriation of a payment instrument was not detectable to the payer prior to the unauthorised transaction being made, or if the loss resulting from the transaction was caused by a person acting on behalf of the payment service provider. As is the case today, the payer must bear the entire amount if any unauthorised transaction was made as a result of the payer, out of gross negligence, failing to fulfil its obligations. In cases involving consumers, however, liability in the case of gross negligence should, as a general rule, continue to be limited to 000. As a general rule, the payer should not have to bear the amount in the case of an authorised transaction if the payer’s payment service provider fails to use strong customer authentication. Access to payment systems PSD2 regulations on access to payment systems stipulate, in addition to what is provided for in the Act, that under certain conditions payment services providers are required to have right of access to payment systems notified in accordance with the ‘Settlement Finality Directive’2. In light of this, the Inquiry proposes that if a participant in such a system gives a payment services pro- vider which is not a participant in that system the opportunity to pass transfer orders through the system, that participant is to give the same opportunity in an objective, proportionate and non- discriminatory to other authorised or registered payment service providers as well. The rules must not inhibit access more than is necessary to safeguard against risks in the activities and to safeguard the payment system’s financial and operative stability. If a request for access is rejected, the participant is required to provide reasons for the rejection. In consultation with the Swedish Com- petition Authority, is required to exercise super- vision of payment service providers’ ability to have indirect access to systems notified in accordance with the Settlement Finality Directive. Access to credit institutions’ payment account services PSD2 gives payment institutions right of access, under certain con- ditions, to the payment account services of credit institutions. The Inquiry therefore proposes that payment institutions have access to credit institutions’ payment accounts services on an objective, non- discriminatory and proportionate basis to the extent necessary to enable them to provide payment services in an efficient and un- hindered . If a credit institution rejects access to payment account services, it is required to submit reasons for the rejection to . The Inquiry proposes that , in consultation with the Authority, exercise supervision of payment institutions’ access to credit institutions’ payment account services. 2 Directive 98/26/EC of Parliament and of 1998 on settlement finality in payment and securities settlement systems. Just as previously, Member States under PSD2 are permitted to prohibit or limit the right of the payee to request charges when using a given payment instrument. The Inquiry considers that the prohibition against such charges under Chapter 5, Section 1, fourth paragraph of the Act should remain in place. The Inquiry proposes that payment services providers be required to establish systems of suitable measures and control mechanisms to manage operational and security risks. Routines must be established as part of the framework of such a system for detecting and classifying serious incidents. Payment service providers should also be required to report to any operational and security risks associated with the payment services they provide and the measures taken to manage these risks. A payment service provider must, without undue delay, notify Finansinspektionen about any serious operational or security incident. If the incident risks impacting the financial interests of the payment service provider, the payment service provider must also inform its payment service users about the incident and take any necessary measures to mitigate the adverse effects of the incident. The Inquiry further proposes that the account servicing pay- ment service provider must apply strong customer authentication when payers log in to their account online or initiate electronic payment transactions. Where applicable, strong customer authenti- cation is also required in payment transactions initiated via a pay- ment initiation service provider and for information requested via an account information services provider. The Inquiry proposes that providers of payment initiation ser- vices or account information services, when providing their services, should be able to use the authentication procedures provided by the account servicing payment service provider to the payment service user. The Inquiry notes that adequate and effective procedures are in place to manage complaints involving infringements of the pro- visions in the Act by payment service providers. The Government or the authority appointed by the Government should be authorised to issue more detailed regulations on how payment services providers are to deal with payment service user complaints with regard to the rights and obligations set out in the Act, and on the design of the supervision of payment service providers’ complaints handling. The activities of fulfil the PSD2 rights and obligations requirements for handling disputes between payment service users who are consumers and their pay- ment service providers under the Act. The Inquiry considers that the procedures for alternative dispute resolution should continue to be transparent for payment service users who are consumers. With regard to the Directive’s regulations on cross-border activities, the Inquiry proposes that foreign payment institutions operating in through agents or branches be required to submit infor- mation on their activities in at the request of Finansinspek- tionen or the Riksbank. The Inquiry also proposes that payment institutions headquartered in another and operating in through agents be required to appoint a central contact point in if Finans- inspektionen deems this necessary. It should also be stated in the Act that the central contact point, at ’s request, is required to submit information on its activities and that Finans- inspektionen has the right to conduct site visits. With the exception of a few provisions that will be implemented at a later date, PSD2 should be implemented in national law no later than 13 January 2018. Most of the proposed legislative amendments are proposed to enter into force on this date. lag om ändring i lagen (2010:751) om betaltjänster Härigenom föreskrivs att i fråga om betaltjänstlagen (2010:751) dels att nuvarande 5 kap. 6–33 §§ ska betecknas 5 kap. 25–49 och 58, 60 och 61 §§, dels att de nya 5 kap. 25, 29–31, 33, 34, 36, 37, 39, 40, 42, 44–47, 49, 58 och 61 §§, ska ha följande lydelse, dels att 1 kap. 1–4, 6 och 7 §§, 2 kap. 2–4 och 6 §§, 3 kap. 2, 5, 7, 9, 11, 13, 17–20, 24, 25 och 27–29 §§, 4 kap. 1–3, 5–7,10–13 och 15 §§, 5 kap. 1–3 och 5 §§, 7 kap. 3 § och 8 kap. 1–3, 5, 13, 21 och 27 §§ ska ha följande lydelse, dels att rubriken till 7 kap. ska ha följande lydelse, dels att rubriken närmast 5 kap. 5 § ska ha följande lydelse, dels att rubrikerna närmast nuvarande 5 kap. 6, 9, 10, 13, 16, 17 23, 25, 27, 30-33 §§ ska sättas före de nya 5 kap. 25, 28, 29, 32, 35, 36, 42, 44, 46, 49, 58, 60 och 61 §§, dels att det ska införas ett nytt kapitel, 5 a, av följande lydelse, dels att det ska införas 36 nya paragrafer, 3 kap. 28 a § 4 kap. 4 a, 4 b, 7 a, 7 b och 8 a §§, 5 kap. 6–24, 50–57 och 59 §§, 7 kap. 4 § och 8 kap. 4 a §, av följande lydelse, dels att det närmast de nya 5 kap. 7, 14, 19, 20, 24 och 51 §§ ska införas nya rubriker av följande lydelse. Nuvarande lydelse Föreslagen lydelse