Text proposed by the Commission (2) Amendments proposed by the ECB (3)

Amendment 1 Recital 12

(12) It is essential to the function of a payment service provider that it be able to operate within payment systems or to participate in such systems. In order to ensure equality of treatment throughout the Community as between the different categories of payment service provider, according to the terms of their prudential licence, it is necessary to clarify the rules concerning access to the provision of payment services and participation in payment systems. Provision should be made for the non-discriminatory treatment of payment institutions and credit institutions as regards their operation within payment systems and their access thereto. (12) It is essential to the function of a payment service provider that it be able to operate within payment systems or to participate in such systems. In order to ensure equality of treatment throughout the Community as between the different categories of payment service provider, according to the terms of their prudential licence, it is necessary to clarify the rules concerning access to the provision of payment services and participation in payment systems. Under Article 105(2) of the Treaty and Article 3.1 and Article 22 of the Statute of the European System of Central Banks and of the European Central Bank (hereinafter the ‘Statute of the ESCB’), one of the basic tasks to be carried out through the European System of Central Banks (ESCB) is to promote the smooth operation of payment systems. The ECB and the national central banks of the Member States may provide facilities, and the ECB may make regulations, to ensure efficient and sound clearing and payment systems within the Community and with other countries. The provisions of this Directive concerning access to the provision of payment services and participation in payment systems are without prejudice to these competences of the ECB and the ESCB, which apply in the Member States that have adopted the euro. Provisions should be made for the non-discriminatory treatment of payment institutions and credit institutions as regards their operation within payment systems and their access thereto.

Justification — See paragraph 9.3 of the opinion

Amendment 2 Article 1, Subject matter

This Directive lays down the rules in accordance with which Member States shall distinguish the following fourcategories of payment service provider: (a) credit institutions within the meaning of Directive 2000/12/EC; (b) electronic money institutions within the meaning of Directive 2000/46/EC; (c) post office giro institutions, as referred to in the second indent of Article 2(3) of Directive 2000/12/EC, which are entitled under national or Community law to provide payment services; (d) other natural or legal persons who have been granted authorisation in accordance with Article 6 of this Directive to provide and execute payment services throughout the Community, hereinafter 'payment institutions. This Directive also lays down rules concerning transparency conditions, and the respective rights and obligations of users and providers, in relation to the provision of payment services as a regular occupation or business activity. Central banks acting as monetary authorities and public authorities which provide payment services are not considered to be payment service providers. This Directive lays down the rules in accordance with which Member States shall distinguish four categories of payment service provider, as defined in Article [4] [Definitions article]. This Directive also lays down rules concerning transparency conditions, and the respective rights and obligations of users and providers, in relation to the provision of payment services as a regular occupation or business activity.

Justification — See paragraph 13.3 of the opinion

Amendment 3 Article 2(1), first subparagraph

This Directive shall apply only to business activities, listed in the Annex, consisting in the execution of payment transactions on behalf of a natural or legal person, hereinafter ‘payment services’, where at least one of the payment service providers is located in the Community. This Directive shall apply only to payment services.

Justification — See paragraph 12.1 of the opinion

Amendment 4 Article 1, exemption of central banks — to be added to Article 2(1), second subparagraph

Central banks acting as monetary authorities and public authorities which provide payment services are not considered to be payment service providers. This Directive shall not apply to payment services provided by central banks.

Justification — See paragraph 8 of the opinion

Amendment 5 Article 3, title

Negative scope Exemptions

Justification — See paragraph 11.1 of the opinion

Amendment 6 Article 3(j)

(j) payment transactions executed by means of a mobile telephone or any other digital or IT device, where all the following conditions are met: (i) the service provider operating the telecommunication or IT system or network is closely involved in the development of the digital goods or electronic communication services provided; (ii) the goods and services cannot be delivered in the absence of the service provider; (iii) there is no alternative option for remuneration. [Deletion]

Justification — See paragraph 11.3 of the opinion

Amendment 7 Article 4(3)

‘payment system’ means a funds transfer system with formal and standardised arrangements and common rules for the processing, clearing and/or settlement of payment transactions; ‘payment system’ means a funds transfer system with formal and standardised arrangements and common rules for the processing, clearing and/or settlement of payment transactions, including without limitation systems designated and notified to the Commission as payment systems in accordance with Directive 98/26/EC of the European Parliament and of the Council of 19 May 1998 on settlement finality in payment and securities settlement systems (4);

Justification — See paragraph 12.2 of the opinion

Amendment 8 Article 4(8)

‘funds’ means cash, scriptural money and electronic money as referred to in Directive 2000/46/EC; ‘funds’ means banknotes and coins and scriptural money;

Justification — See paragraph 12.6 of the opinion

Amendment 9 Definitions article

Article 1 Subject matter This Directive lays down the rules in accordance with which Member States shall distinguish the following four categories of payment service provider: [..] (d) other natural or legal persons who have been granted authorisation in accordance with Article 6 of this Directive to provide and execute payment services throughout the Community, hereinafter ‘payment institutions’. ‘payment institution’ means any legal person other than: (a) a credit institution within the meaning of Article 1(1) of Directive 2000/12/EC; (b) an electronic money institution as defined in Article 1(3)(a) of Directive 2000/46/EC); or (c) a post office giro institution, as referred to in the second indent of Article 2(3) of Directive 2000/12/EC, which is entitled under national or Community law to provide payment services; which has been granted authorisation in accordance with Article 6 to provide and execute payment services throughout the Community;

Justification — See paragraphs 12.1 and 12.3 of the opinion

Amendment 10 Definitions article

[Insertion] ‘payment service’ means a business activity listed in the Annex, consisting of the execution of payment transactions on behalf of a natural or legal person, where at least one of the payment service providers is located in the Community;

Justification — See paragraph 12.1 of the opinion

Amendment 11 Definitions article

Article 1 Subject matter This Directive lays down the rules in accordance with which Member States shall distinguish the following four categories of payment service provider: (a) credit institutions within the meaning of Directive 2000/12/EC; (b) electronic money institutions within the meaning of Directive 2000/46/EC; (c) post office giro institutions, as referred to in the second indent of Article 2(3) of Directive 2000/12/EC, which are entitled under national or Community law to provide payment services; (d) other natural or legal persons who have been granted authorisation in accordance with Article 6 of this Directive to provide and execute payment services throughout the Community, hereinafter ‘payment institutions’. ‘payment service provider’ means: (a) a credit institution within the meaning of Article 1(1) of Directive 2000/12/EC; (b) an electronic money institution as defined in Article 1(3)(a) of Directive 2000/46/EC); (c) a post office giro institution, as referred to in the second indent of Article 2(3) of Directive 2000/12/EC, which is entitled under national or Community law to provide payment services; or (d) without prejudice to Article 21, a payment institution;

Justification — See paragraph 12.1 of the opinion

Amendment 12 Definitions article

[Insertion] ‘payment transaction’ means the act, initiated by the payer or by the payee, of depositing, withdrawing or transferring funds from the payer to the payee, irrespective of any underlying obligations between the payment service users;

Justification — See paragraph 12.1 of the opinion

Amendment 13 Definitions article

[Insertion] ‘execution time’ means the time between the acceptance of a payment order by a payment service provider and the point in time when the amount to be paid pursuant to the payment order is made available to the payee;

Justification — See paragraph 12.8 of the opinion

Amendment 14 Definitions article

[Insertion] ‘scriptural money’ means deposit balances held on an account at a credit institution or a central bank, or electronic money as defined in Article 1(3)(b) of Directive 2000/46/EC;

Justification — See paragraph 12.10 of the opinion

Amendment 15 Definitions article

[Insertion] ‘framework contract’ means a payment service agreement characterised by the fact that it commits a payment service provider to the future execution of individual or successive payment transactions on the order of the payer;

Justification — See paragraph 12.12 of the opinion

Amendment 16 New Article 6, Consultation of central banks

[Insertion] The competent authorities of the home Member State shall consult the relevant central bank before accepting or rejecting an application for authorisation or suspending or withdrawing an authorisation.

Justification — See paragraph 4.8 of the opinion

Amendment 17 Article 10(1) and (2)

1. Payment institutions shall be entitled to engage in the following activities: (a) the provision of payment services; (b) the provision of operational and related ancillary services such as the guaranteeing execution of payment transactions,, foreign exchange services, safekeeping activities, and storage and processing of data; (c) the accessing and operation of payment systems for the purposes of transferring, clearing and settling funds, including any instruments and procedures relating to the systems. In the context of point (a), funds received by payment institutions from payment service users with a view to the provision of payment services shall not constitute a deposit or other repayable funds within the meaning of Article 3 of Directive 2000/12/EC, or electronic money within the meaning of Directive 2000/46/EC. 2. Funds received from payment service users and specifically accepted in connection with a payment service shall not be used by payment institutions to support other business activities otherthan payment services. The payment institution shall keep separately in its books the payment service users funds, accepted for a payment transaction, from other funds accepted for activities other than payment services. 1. Payment institutions shall be entitled to engage exclusively in the following activities: (a) the provision of permitted payment services as set out in the Annex; (b) the provision of operational and related ancillary services such as guaranteeing the execution of payment transactions, foreign exchange services, safekeeping activities, and storage and processing of data; (c) the accessing of payment systems for the purposes of transferring, clearing and settling funds, including any instruments and procedures relating to the systems, without prejudice to Article 23. 2. When payment institutions engage in the provision of payment services under paragraph (1)(a), funds received by payment institutions from payment service users with a view to the provision of payment services shall not constitute a deposit or other repayable funds within the meaning of Article 3 of Directive 2000/12/EC, or electronic money as defined in Article 1(3)(b) of Directive 2000/46/EC. Funds received by a payment institution shall be transferred to the payee or, if an order is not executed, paid to the payer or other person entitled to the funds within the execution time prescribed in Section 2 of Chapter 2 of Title IV of this Directive. 3. Funds received from payment service users and specifically accepted in connection with a payment service shall be earmarked to the specific transaction in respect of which they are provided to the payment institution and may not be used by payment institutions to support other business activities than the payment services requested by the payment service user.

4. Member States shall ensure that appropriate safeguards are in place to protect payment service users as follows:

(a) in relation to funds received from payment service users, which have been accepted for a payment transaction, a payment institution shall segregate such funds from other funds accepted for activities other than payment services and account for them separately in its books;

(b) a payment institution shall keep the funds of a payment service user under an account name which clearly identifies the payment service user;

(c) no funds of a payment service user may be commingled with the funds of a payment service provider or any other payment service user or any other person other than the payment service user on whose behalf the funds are held;

(d) the funds of a payment service user shall be insulated from any third-party action against the payment institution;

(e) in the event that one or more reorganisation measures is adopted or winding-up proceedings are opened against a payment institution, the relevant administrative or judicial authorities, or the relevant administrator or liquidator, as the case may be, shall promptly return the funds of all payment service users to such payment service users in priority to all other claims against that payment institution;

(f) in the event that one or more reorganisation measures is adopted or winding-up proceedings are opened against a payment institution and insufficient funds are available for remittance of all the funds due to payment service users, the relevant administrative or judicial authorities, or the relevant administrator or liquidator, as the case may be, shall promptly distribute to payment service users the funds of such payment service users on a pro rata basis according to their claims and in priority to all other claims against that payment institution.

Note: it is suggested that the above provision should be accompanied by the introduction of the following definitions into the definitions article in the proposed directive, all taken directly from Article 2 of Directive 2001/24/EC of the European Parliament and of the Council of 4 April 2001 on the reorganisation and winding-up of credit institutions (5):

(1) ‘administrator’ means any person or body appointed by the administrative or judicial authorities whose task is to administer reorganisation measures;

(2) ‘administrative or judicial authorities’ means such administrative or judicial authorities of the Member States as are competent for the purposes of reorganisation measures or winding-up proceedings;

(3) ‘reorganisation measures’ mean measures which are intended to preserve or restore the financial situation of a payment institution and which could affect third parties' pre-existing rights, including measures involving the possibility of a suspension of payments, suspension of enforcement measures or reduction of claims;

(4) ‘liquidator’ means any person or body appointed by the administrative or judicial authorities whose task is to administer winding-up proceedings;

(5) ‘winding-up proceedings’ mean collective proceedings opened and monitored by the administrative or judicial authorities of a Member State with the aim of realising assets under the supervision of those authorities, including where the proceedings are terminated by a composition or other, similar measure.

Justification — See paragraphs 6.3, 6.4 and 9.4 of the opinion

Amendment 18 Article 10(3)

3. The business activities of authorised payment institutions shall be non-exclusive and shall not be restricted to payment services, having regard to the applicable national and Community law. [Deletion]

Justification — See paragraph 6.5 of the opinion

Amendment 19 Article 11(2)

2. Where a payment institution intends to outsource some or all of its operations, it shall inform the competent authority accordingly. 2. Where a payment institution intends to outsource some of its operations, it shall inform the competent authority of its home Member State accordingly. Such outsourcing shall be without prejudice to the application of this Directive to the entity to which some of the operations have been outsourced, to the extent that such entity qualifies as a payment service provider in its own right.

Justification — See paragraph 13.4 of the opinion

Amendment 20 Article 16

Member States shall ensure that the controls exercised by the competent authorities for checking continued compliance with this Title are proportionate, adequate and responsive to the risks to which payment institutions are exposed. Member States shall ensure that the controls exercised by the competent authorities for checking continued compliance with this Title are proportionate, adequate and responsive to the risks to which payment institutions are exposed.

In order to check compliance with this Title, the competent authorities may take only the following steps: In order to check compliance with this Title, the competent authorities shall have the ability to take the following steps:

(a) to require the payment institution to provide any information needed to monitor compliance; (a) to require the payment institution to provide any information needed to monitor compliance;

(b) to carry out on-site inspections with the payment institution, an outsourced entity, a tied agent or a subsidiary under the responsibility of the payment institution; (b) to carry out on-site inspections with the payment institution, an outsourced entity, a tied agent or a subsidiary under the responsibility of the payment institution;

(c) to issue recommendations and guidelines; (c) to issue recommendations and guidelines;

(d) to issue warnings and impose proportionate penalties in cases of non-compliance; (d) to issue warnings and impose proportionate penalties in cases of non-compliance;

(e) to suspend or withdraw authorisation in cases, where the conditions for authorisation in accordance with Article 5 are no longer fulfilled. (e) to suspend or withdraw authorisation in cases, where the conditions for authorisation in accordance with Article 5 are no longer fulfilled.

Justification — See paragraph 4.7 of the opinion

Amendment 21 Article 19, first paragraph

The competent authorities of the different Member States shall cooperate and, in particular, exchange information in order to ensure proper application of this Directive. The competent authorities of the different Member States shall cooperate and, in particular, exchange information in order to ensure proper application of this Directive, both among themselves and with the central banks of the ESCB.

Justification — See paragraph 4.8 of the opinion

Amendment 22 Article 19, second paragraph, point (b)

(b) central banks, the European System of Central Banks and the European Central Bank, in their capacity as monetary authorities, and, where appropriate, other public authorities responsible for overseeing payment and settlement systems; central banks in third countries and, where appropriate, other public authorities responsible for overseeing payment and settlement systems;

Justification — See paragraph 4.8 of the opinion

Amendment 23 Article 23(1)

1. Member States shall ensure that rules on access to and operation of payment systems shall be objective and proportionate and shall not inhibit access more than is necessary to safeguard against specific risks and to protect the financial safety of the payment system. Payment systems may not impose any of the following requirements: (a) a ban on participation in other payment systems; (b) a rule which discriminates between authorised payment service providers in relation to the rights, obligations and entitlements of participants; (c) any restriction on the basis of institutional status. 1. Member States shall ensure that a payment institution's access to a payment system shall not be: (a) restricted on a discriminatory basis, provided that the financial and operational safety of the payment system is ensured; and (b) restricted on the basis of institutional status.

Justification — See paragraphs 9.1 and 9.4 of the opinion

Amendment 24 Article 23(2)

2. Paragraph 1 shall be without prejudice to requirements imposed on participants in a payment and securities settlement system by Community legislation and in particular by Directive 98/26/EC of the European Parliament and of the Council (6) . 2. Paragraph 1 shall not apply to systems designated under Directive 98/26/EC and shall be without prejudice to the competences of the ECB and the ESCB as laid down in Article 105(2) of the Treaty and Article 3.1 and Article 22 of the Statute of the ESCB, concerning access to payment systems and the provision of payment systems.

Justification — See paragraphs 9.2 and 9.3 of the opinion

Amendment 25 Article 41

Member States shall ensure that a payment transaction is considered to be authorised only if the payer has consented to the respective payment order addressed to the payment service provider. Consent shall consist in an explicit authorisation for the payment service provider to effect a payment transaction or a series of transactions. In the absence of such consent, a payment transaction shall be considered to be unauthorised. A payment transaction may be authorised by the payer prior or subsequent to the execution of the payment transaction. Member States shall ensure that a payment transaction is considered to be authorised only if the payer has consented to the respective payment order addressed to the payment service provider. Consent shall consist in giving an explicit authorisation for the payment service provider to effect a specified payment transaction or a specified series of transactions. Consent may be withdrawn in accordance with the contractual conditions agreed between the payment service provider and the payer, but no later than the point in time of acceptance of a payment order or the point in time when a payment order becomes irrevocable under Articles 54 or 56. In the absence of such consent, or if such consent is validly withdrawn, a payment transaction shall be considered to be unauthorised. A payment transaction may be authorised by the payer prior or subsequent to the execution of the payment transaction.

Justification — See paragraph 13.7 and 13.10 of the opinion

Amendment 26 Article 53(1)

1. Member States shall ensure that the payer shall request the refund, at the latest within four weeks of being informed of the payment transaction in question by the payment service provider. […] 1. Member States shall ensure that the payer shall request the refund, at the latest within six weeks from the date on which the funds are debited. […]

Justification — See paragraph 13.9 of the opinion

Amendment 27 Article 54(2)

2. In the case of electronically initiated transactions, the payment service provider shall inform the payment service user of acceptance of the order for execution. He shall do so without undue delay and, in any case, before the end of the next working day after the point in time of acceptance under paragraph 1. 2. In the case of electronically initiated transactions, the payment service provider shall inform the payment service user of acceptance of the order for execution. He shall do so without undue delay following receipt of the payment order and, in any case, before the end of the next working day after the point in time of acceptance under paragraph 1.

Justification — See paragraph 13.11 of the opinion

Amendment 28 Article 65(1), first subparagraph

1. Member States shall ensure that the payment service provider of the payee makes funds available to the payee as soon as those funds are credited to the payee's payment account. 1. Member States shall ensure that the payment service provider of the payee makes funds available to the payee immediately once it has received them.

Justification — See paragraph 13.12 of the opinion

Amendment 29 Article 66(1)

[…]Where the IBAN was specified as the unique identifier, it should take precedence over the name of the payee, if it is provided additionally. However, the payment service provider should, where possible, verify the consistency of the former with the latter. […]Where the IBAN is specified as the unique identifier, it shall take precedence over any other unique identifier, including the name of the payee, if such other identifier is provided in addition to the IBAN. However, the payment service provider should, where possible, verify the consistency of the unique identifiers provided.

Justification — See paragraph 13.13 of the opinion

Amendment 30 Article 77(1)

The Commission shall be assisted by a Payments Committee, hereinafter ‘the Committee’, composed of representatives of the Member States and chaired by a representative of the Commission. The Commission shall be assisted by a Payments Committee, hereinafter ‘the Committee’, composed of representatives of the Member States and observers from the ECB, and chaired by a representative of the Commission.

Justification — See paragraph 10 of the opinion

Amendment 31 Annex

(1) Cash deposits on a payment account held either by the user's payment service provider or by another payment service provider as well as all the operations required for operating a payment account. (2) Cash withdrawals from a payment account held either by the user's payment service provider or by another payment service provider, as well as all the operations required for operating a payment account. (3) Execution of payment transactions, including transfer of funds, where the funds are held on deposit in a payment account with the user's payment service provider or with another payment service provider: — execution of direct debits, including one-off direct debits; — execution of payment transactions through a payment card or a similar device; — execution of credit transfers, including standing orders. (4) Execution of payment transactions where the funds are covered by a credit line for a payment service user provided in accordance with Directive 98/7/EC of the European Parliament and of the Council amending Directive 87/102/EEC for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit and other applicable Community legislation: — execution of direct debits, including one-off direct debits; — execution of payment transactions through a payment card or a similar device; — execution of credit transfers, including standing orders. (5) Issuing of payment cards which allow the payment service user to transfer funds. (6) Execution of payment transactions, including transfer of funds, where the electronic money within the meaning of Directive 2000/46/EC is issued by the payment service provider. (7) Money remittance services where the cash, scriptural money or electronic-money is accepted by the payment service provider from the payment service user for the sole purpose of making a payment transaction and transferring the funds to the payee. (8) Execution of payment transactions by any means of communication at a distance such as mobile telephones or other digital or IT devices where the service provider operating the telecommunication or IT system or network is facilitating the payment of goods or services that are not digital goods or electronic communication services and so are not provided through the device itself. (9) Execution of payment transactions by any means of communication at a distance such as mobile telephones or other digital or IT devices where the service provider operating the telecommunication or IT system or network simply arranges a transfer of funds for the payment of digital goods or electronic communication services provided through the device, without any other intervention in the service provided. 1. Credit institutions within the meaning of Article 1(1) of Directive 2000/12/EC, including electronic money institutions as defined in Article 1(3)(a) of Directive 2000/46/EC, may provide the following payment services: (i) Cash deposits on a payment account held either by the user's payment service provider or by another payment service provider as well as all the operations required for operating a payment account. (ii) Cash withdrawals from a payment account held either by the user's payment service provider or by another payment service provider, as well as all the operations required for operating a payment account. (iii) Execution of payment transactions, including transfer of funds, where the funds are held on deposit in a payment account with the user's payment service provider or with another payment service provider: — execution of direct debits, including one-off direct debits; — execution of payment transactions through a payment card or a similar device; — execution of credit transfers, including standing orders. (iv) Execution of payment transactions, including transfer of funds, where the electronic money as defined in Article 1(3)(b) of Directive 2000/46/EC is issued by the payment service provider. 2. Credit institutions within the meaning of Article 1(1) of Directive 2000/12/EC, with the exception of electronic money institutions as defined in Article 1(3)(a) of Directive 2000/46/EC, may provide the following payment services: (i) Execution of payment transactions where the funds are covered by a credit line for a payment service user provided in accordance with Council Directive 87/102/EEC of 22 December 1986 for the approximation of the laws, regulations and administrative provisions of the Member States concerning consumer credit (7) and other applicable Community legislation: — execution of direct debits, including one-off direct debits; — execution of payment transactions through a payment card or a similar device; — execution of credit transfers, including standing orders. 3. Credit institutions within the meaning of Article 1(1) of Directive 2000/12/EC, including electronic money institutions as defined in Article 1(3)(a) of Directive 2000/46/EC, and payment institutions may provide the following payment services: (i) Issuing of payment cards which allow the payment service user to transfer funds where the cardholder's account is with a credit institution; (ii) Money remittance services where banknotes and coins, scriptural money or electronic money are accepted by the payment service provider from the payment service user for the sole purpose of making a payment transaction and transferring the funds to the payee.