EN ECB -PUBLIC  
 
OPINION OF THE EUROPEAN CENTRAL BANK  
of 28 December 2016  
on a Belgian  draft law on the oversight of payment transaction  processors  
(CON/ 2016/61) 
 
Introduction and legal basis  
On 18 November 2016 , the European Central Bank (ECB) received a request from the Governor of the 
Nationale Bank van België/Banque Nationale de Belgique (NBB), on behalf of the Minister of Finance,  for 
an opinion on  a draft  law on the oversight of payment transaction processors  (herein after the ‘ draft law’).  
The ECB’s competence to deliver an opinion is based on Articles  127(4)  and 282(5)  of the Treaty  on the 
Functioning of the European Union  and the second, third and fifth indent s of Article  2(1) of Council 
Decision  98/415/EC of 29  June  1998 on the consultation of the European Central Bank by national 
authorities regarding draft legislative provisions1, since  the draft law concerns means of payment, the  
NBB and payment and settlement systems . In accordance with the first sentence of Article 17.5 of the 
Rules of Procedure of the European Central Bank, the Governing Council has adopted this opinion.  
 
1.  Purpose of the draft Law  
1.1. The main objective of the draft law  is to equip the NBB with hard- law tools in order to facilitate the 
application of the oversight policy framework to systemically important payment transaction  
processors . The preparatory text regarding the draft law explains that the soft -law approach 
implemented to date by the NBB in this area has limitations , as demonstrated by the recent 
adoption of Regulation (EU) No 795/2014 of the European Central Bank  (ECB/2014/28)2.  
1.2. The draft law defines the concept of ‘ payment transaction  processors ’ as referring to any natural or 
legal person who implements technical processes that are necessary and specifically intended to 
execut e payment transactions . As a consequence,  general support service providers , including 
financial messaging companies , would be excluded fro m the scope of the draft law as their 
services are not specific to payment transactions. The draft law defines payment transactions as 
actions  initiated by the payer or the payee , which involve the transfer of scriptural money, 
irrespective of any underlying obligation between the payer and the payee, during the course of 
which the payment transaction is executed between different payment service provider s, with both 
the payer’s and the payee’s payment service providers operat ing in Belgium. The draft law further  
excludes from its scope the processing of certain paper -based document s drawn on the payment 
                                                 
1  OJ L 189, 3.7.1998, p. 42.  
2   Regulation (EU) No 795/2014 of the European Central Bank of 3 July 2014 on oversight requirements for 
systemically important payment systems (ECB/2014/28)  (OJ L 217, 23.7.2014, p. 16).  
ECB -PUBLIC  
2 service provider with a view to placing scriptural money at the di sposal of the payee, these 
documents includ e paper  cheques  and paper -based bills, vouchers, paper -based traveller’s 
cheques and postal money orders . The draft law also excludes from its scope the processing of 
payment transactions within a payment or securities settlement system  and the processing of direct 
debit or c redit transfer schemes .   
1.3. The draft law defines  a payment processor that is considered to be systemically important in the 
Belgian payment transactions market  as a processor providing processing services for a minimum 
of 125 million payment transactions  in the previous calendar year using a specific payment 
scheme , regardless of whether the processor has its registered office in Belgium. S ystemic ally 
important proce ssors are to be subject to a comprehensive legal framework, c omposed of the 
following building blocks. First , mergers and acquisitions involving systemically important 
processor s must be submitted for  prior authorisation by the NBB, which may impose specific 
conditions  on them  or reject them if such merger s or acquis itions undermine the sound and prudent 
management of processors of systemic importance and the continuity and stability of payments in 
Belgium. Second, systemically important processor s must comply with the following conditions  in 
order to outsource important operational tasks for processing payment transactions:  (a) the 
processor must obtain prior authorisation from the NBB  for the outsourcing;  (b) the outsourcing 
must not result in the delegation by senior management of its responsibilities ; (c) the outsourcing 
must not modify the relationship  and obligations of the processor  with or  towards payment service 
providers and payment schemes ; (d) the outsourcing must comply with the draft law and (e) the 
outsourcing must not undermi ne the quality of any internal control that would prevent the NBB from 
controlling the compliance, by the processor, with its obligations. Third , the draft law imposes 
various obligations on systemically important processor s that aim to equip them  with a sound risk -
management framework for comprehensively identify ing sources of operational risks , both internal 
and external , and minimis ing their impact by  deploy ing appropriate controls, systems and 
procedures . Fourth, the draft law contains specific requirements as regards the confidentiality and 
integrity of information as well as the continuous provision of services. In particular , systemically 
important  processor s must inform the NBB of any temporary unavailability of their services.   
1.4. The draft law subjects payment transaction processors  to some of the hard- law components of the 
oversight framework currently applicable to payment and securities settlement systems . To ensure 
their compliance with the above- mentioned oversight framework , process ors must provide the NBB 
with regular information on their  organisation, functioning, financial situation and operations. The 
NBB will have  the power to conduct on- site inspections to gather additional information, and may 
impose remedial measures in the event of breaches  of the oversight framework requirements. The 
NBB’s sanctioning committee may also impose f ines, while the NBB may , in extremis , prevent 
payment schemes  from using the services of a processor or prevent a processor from outsourcing 
its activities i f the above- mentioned requirements are not complied with.   
1.5. The draft law also includes specific requirements applicable to payment schemes that operate in 
Belgium . The definition of payment schemes under the draft law is drawn from  Regulat ion (EU) 
ECB -PUBLIC  
3 (No) 260/2012 of the European Parliament and of the Council3 and Regulation (EU) 2015/751 of 
the European Parliament and of the Council4 and refers to ‘ a single set of rules, practices, 
standards and/or guidelines, operating in Belgium, agreed between the payment service providers 
for the execution of payment transactions, which is separate from any infrastructure or payment 
system that supports its operation and which comprises a specific decision- making body, 
organisation or entity responsible for the operation of the payment scheme’ . The draft law requires 
the a payment scheme:  (a) to transmit information on the payment transaction  processor that  it 
uses; (b) to ensure that any of its systemically important processor s are able to comply with t he 
requirements imposed by the draft law and (c) to provide, at the NBB’s request, information on its 
organisation, operations and financial standing and the payment transactions it process es. The 
NBB may impose administrative fines on payment schemes in  breach of any of these 
requirements.   
1.6. Taking note of the judgment of the European Court of Justice’s case T-496/115, the draft law also 
amends Article 8 of the Organic Statute of the NBB relating to the oversight of payment and 
clearing systems,  in order to expressly refer to securities settlement systems that are subject to the 
NBB’s oversight. The draft law also formally empowers NBB to enact regulations in this field. 
Finally, under the draft law, the NBB and its agents may only be held civilly  liable for decisions 
taken regarding market infrastructures’ oversight in the event of fraud or gross negligence.  
 
2.  Hard -law oversight framework for systemically important payment transaction  processors  
2.1. The draft law equips the NBB with hard- law tools to facilitate the implementation of its oversight 
framework , as previously extended to payment transaction processors . Hence, the draft law does 
not confer genuinely new tasks on  the NBB . 
2.2. The ECB understands that the draft law  relates to service providers involved in the technical 
support of the payment services chain and who do not directly fall within the ambit of any existing 
Union legal framework . On the one hand, such payment transaction processors  may not be 
assimilated to payment service providers under Directive (EU) 2015/2366 of the European 
Parliament and the Council6, as such processors facilitate the operational execution of payment 
services  without providing payment services as such. On the other hand, the draft law explicitly 
excludes from its  scope the treatment  of payment transactions carried out within a payment or 
securities settlement system. Finally, although under the draft law payment transaction processors  
provide the technical infrastructure supporting the functioning of a ‘ payment scheme’  within the 
meaning of Regulation (EU) 2015/751, they are not regarded as constitut ing a payment scheme.     
                                                 
3   Regulation (EU)  No 260/2012 of the European Parliament and of the Council of 14 March 2012 establishing 
technical and business requirements for credit transfers and direct debits in euro and amending Regulation (EU) 
No 924/2009 (O J L 94, 30.3.2012,  p. 22) . 
4   Regulation (EU) 2015/7 51 of the European Parliament and of the Council of 29 April 2015 on interchange fees for 
card- based payment transactions  (OJ  L, 123, 19.5.2015, p. 123) .  
5   United Kingdom of Great Britain and Northern Ireland v  European Central Bank , T-496/11. ECLI:EU:T:2015:133.  
6   Directive (EU) 2015/2366 of the European Parliament and the Council 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 (OJ L 337, 23.12.2015, p. 35).  
ECB -PUBLIC  
4 2.3. Currently,  and without prejudice to initiatives  taken at the domestic level by some Union Member 
States in this area7, payment transaction processors  are only indirectly included in the ECB’s  
oversight framework  for payment schemes , insofar as such schemes are expected to ensure, 
through contractual  arrangements , that the payment transaction processors  used by the schemes  
respect any relevant requirements , including operational requirements . The ECB ’s oversight 
framework for payment schemes assigns  a leading role to the central bank that is best placed to 
fulfil the required oversight duties. Where there is no national anchor, the ECB ’s Governing Council 
may assign primary oversight responsibilities to the ECB, with the participation of other interested 
Eurosystem NCBs as part of a cooperative oversight arrangement. According to this framework, the 
NBB is the single over seer of the Bancontact card payment scheme and the lead oversight 
authority of the MasterCard card payment scheme. The oversight of the MasterCard card payment 
scheme is implemented, according to cooperative oversight arrangements  enjoying the 
participation of the ECB and a number of volunteer NCBs. The ECB is the lead overseer of the 
VISA payment scheme and the SEPA Credit Transfer  and Directive Debit  payment schemes of the 
European Payments Council . The oversight of other payment schemes has been assigned to the 
respective NCBs of the Member States where the  schemes  are established.  
2.4. As emphasi sed in the preparatory text regarding the draft law, th e approach described in paragraph 
2.3 may no longer  be sufficient . This is because,  as a consequence of the gradual cross -border 
consolidation in the payment processing industry , which is not regulated as such at the European 
level, payment transaction processors  may operate in a jurisdiction other than the jurisdiction where 
the payment scheme is located,  without being necessarily subject to direct supervision or  oversight  
in any jurisdiction . As these processors play a growing role in the build- up of operational risks 
connected to payment schemes , it is appreciated that the Belgian l egislator wishes to set up a 
framework intended to facilitate the monitoring of operational risks posed by the gradual 
consolidation of payment transaction processors . However, the ECB considers that this framework 
needs to be designed in a way that fully takes  into account the close interdependencies of  these 
services wi th existing Union legislation,  with which consistency should be ensured,  and the cross -
border dimension of these services.  
2.5. In defining the concept of ‘payment scheme’  along the lines of the Regulations (EU) No 260/2012 
and (EU) 2015/751 and excluding the treatment of payment transactions carried out  within  payment 
and securities settlement systems  from the draft law’s scope,  whether  they are of systemic 
importance under  Regulation (EU) No 795/2014 (ECB/2014/28)  or not , the draft law is sufficiently 
aligned with the definitions in current Union law.  
2.6. The draft law has a clear cross -border impact, as it may relate to a systemically important  payment 
transaction processor  established in another Member State that is used by one or more payment 
scheme s in Belgium . As a consequence, the draft law must be drafted in such a way that it  avoid s 
both any possible  breach of Union law as regards the freedom to provide services  under the Treaty  
and  any potential conflict with the actions of the authorities in the Member State where the 
                                                 
7   See the Regulation on the oversight of the smooth operation of payment traffic (‘betalingsverkeer’)  adopted by the 
Netherlands , in respect of which the ECB issued its Opinion CON/2015/49, all ECB opinions are published on the 
ECB’s website www.ecb.europa.eu  .  
ECB -PUBLIC  
5 payment transaction  processor  has its registered office.  The ECB notes , in this respect,  that, 
according to the preparatory text regarding the draft law , the restriction on the free provision of 
services  introduced by the draft law  is regarded as being compatible with the freedom to provide 
services across the Union as it ensures the stability, reliability and continuity of tho se services that 
are essential for the proper functioning of retail payment systems .  
2.7. Although the draft law contains no formal  mechanism for avoid ing potential conflicts with the 
authorities of the Member State where the payment transaction processor  has its registered office, 
the ECB assumes that the NBB will enter into a cooperative arrangement with any such authorities, 
in order  to coordinate the oversight of a processor. From this perspective, the draft law could 
introduce an amendment to Article 36/16 of the Organic Statute of the NBB in order  to enable the 
NBB to enter into cooperative arran gements with foreign authorities as regards payment 
transaction processors . It is acknowledged, however, that a cooperative cross- border regulatory 
approach in this area may be challenging insofar as the laws applicable in the jurisdiction in which a 
payment transaction processor  is incorporated may not subject a processor to its regulatory and/or 
oversight frameworks, and may not contain similar tools and requirements as those contained in 
the draft law.   
2.8. Whilst the ECB welcomes the draft law, which adequately equips NBB with hard- law tools 
facilitating the implementation of the oversight framework for payment schemes oper ated in 
Belgium, a truly European approach would be desirable in this field, in order to avoid fragmentation 
and the possibl e counterproductive effects of solutions designed solely at the national level. In the 
meantime the ECB assumes that the NBB will leverage the existing Eurosystem oversight 
framework for payment schemes when considering implementing these new hard -law tools, be it as 
the lead overseer of payment schemes operat ing in Belgium or as a participating NCB in a 
cooperative oversight arrangement for which another NCB or the ECB acts as the lead overseer.  
 
3.  Amendments made to the NBB Organic Law as regards its oversight framework  
 The ECB  welcomes the clarification  that the draft law brings to Article 8 of the NBB Organic law  by 
stating that the oversight of securities settlement systems is conducted in Belgium not only in 
accordance with the applicable Union rules , but also in accordance with the relevant Belgian laws . 
 
This opinion will be published on the ECB’s website.  
 
 
Done at Frankfurt am Main, 28 December 2016 . 
 [signed]  
 
The President of the ECB  
Mario DRAGHI