EN ECB-PUBLIC  
 
 
OPINION OF THE EUROPEAN CENTRAL BANK 
of 21 May 2012  
on the oversight of retail payment services and systems  
(CON/2012/38) 
 
Introduction and legal basis  
On 12 March 2012, the European Central Bank (ECB) received a request from the Banca d’Italia for an 
opinion on a draft regulation concerning the oversight of retail payment services and systems (hereinafter 
the ‘draft regulation’). 
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, thir d, fifth and sixth indents 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, as the draft regulation relates to means of 
payments, the Banca d’Italia, payment and settlement  systems, and rules applicable to financial 
institutions that materially influence the stability of financial institutions and markets. In accordance with 
the first sentence of Article 17.5 of the Rules of Pr ocedure of the European Central Bank, the Governing 
Council has adopted this opinion. 
 1.  Purpose of the draft regulation 
The draft regulation concerns the provision of reta il payment services by payment service providers and 
retail payment systems operators whose registered address and/or centre of operations is in Italy. 
Under the draft regulation, payment service providers are requested to notify the Banca d’Italia of the 
name, location and oversight rules of payment system s used for the exchange of payment instructions, 
clearing and settlement of retail transactions when such  systems do not fall within the scope of this draft 
regulation. Additional requirements  are provided for payment systems located outside the euro area.  
With reference to retail payment system managers , the draft regulation provides specific requirements 
concerning governance, effectiveness of controls, outsourcing, business as well as legal and operational 
risks. It also covers access as well as connections  with other retail payment systems and information 
requirements.  
Finally, the draft regulation also contains specific provisions on the retail payment systems operated by 
the Banca d’Italia. In this context, most of the re quirements provided for retail payment system operators 
                                                 
1  OJ L 189, 3.7.1998, p. 42.  
ECB-PUBLIC 
2 also apply to the Banca d’Italia. In particular, the Ban ca d’Italia is requested to comply with the full cost 
recovery principle when providing retail pa yment services in competition with the market. 
The draft regulation replaces a regulation adopted by the Banca d’Italia in 2005 on low-importance 
payments2. 
 2. General observations  2.1 The ECB understands that the need for a new re gulation in the field of retail payment services and 
systems has been driven, in partic ular, by the latest developments  in the Single Euro Payments 
Area project and the new CSSP-IOSCO principles for financial market infrastructures
3 (the ‘PFMI 
principles’). In general, the ECB welcomes the dr aft regulation’s provisions which allow for freer 
competition in the whole sector of retail payments4, as well as the measures directly concerning the 
Banca d’Italia which ensure a level playing field.  The ECB also welcomes the reference in Article 
15 to the application of the principle of full cost  recovery by the Banca d’Italia when directly 
providing low-value payment services in competition with the market.  
2.2 In spite of the overall intention to ensure a le vel playing field, the ECB understands that the Banca 
d’Italia, as a retail payment system operator, w ould still enjoy several derogations from the rules 
which otherwise apply to other retail payment sy stem operators under the draft regulation. In 
particular, the ECB notes that the Banca d’Italia  is excluded from the scope of application of 
Article 4 which relates to governance structure. The first sentence of such Article, however, 
concerns the application of the proportionalit y principle. While the PFMI principles require 
‘appropriate and effective regula tion, supervision, and oversig ht’ and these principles apply 
generally to systemically important payments systems, the principle of proportionality is 
nonetheless a general principle of Union law. For this reason, the Banca d’Italia should not be 
exempt from the application of the first sentence of Article 4 of the draft regulation. 
2.3 The ECB notes that following the citations which set  out the legal basis for the draft regulation, the 
recitals contain a list of factual elements which have been consider ed by the Banca d’Italia. For the 
sake of completeness, this list could also include  other factual developments considered by the 
Banca d’Italia in the drafting of this regulation.  Such developments include: (a) the ECB’s report 
‘Business continuity oversight expectations for sy stematically important payment systems (SIPS)’ 
of June 2006, (b) the Eurosystem Oversight Policy Framework of July 2011, and (c) the PFMI of April 2012. The ECB also notes that in the definitions set out in Article 1 of the draft regulation, in 
                                                 
2  See Opinion CON/2005/41 on this subject.  All ECB Opinions are published on the ECB’s website at www.ecb.europa.eu.   
3  International standards for payment, clearing and settlement systems, which are issued by the Committee on Payment and 
Settlement Systems (CPSS) and the Technical Committee of the International Organization of Securities Commissions 
(IOSCO). 
4  In the past, due to ‘specific legal and operational characteristics’, the entire clearing process was operated by the Banca 
d’Italia. Presidential Decree No. 248 of 13 December 2010 repealed the Royal Decree-Law No. 812 of 6 May 1926, 
ratified as Law 1262 of 25 June 1926, under which the management of clearing hous es in Italy had been exclusively 
assigned to the Banca d’Italia. For this reason, the ECB understands that any specifi c legal and operational characteristics 
precluding the direct intervention of market operators in the field of retail payment have been removed. 
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3 some cases reference is made to the ‘contractual framework’5 and in others to the ‘rules’6 
governing the payment systems. For the sake of  consistency, the ECB suggests that these 
references should be aligned. 
 This opinion will be published on the ECB’s website.    Done at Frankfurt am Main, 21 May 2012. 
 
[signed] 
 
The President of the ECB 
Mario DRAGHI 
                                                 
5  See Article 1(e) of the draft regulation. 
6  See Articles 1(a) and (g) of the draft regulation.