EN ECB-PUBLIC  
 
OPINION OF THE EUROPEAN CENTRAL BANK 
of 20 November 2015 
on oversight of the smooth operation of payment traffic (‘betalingsverkeer’ ) 
(CON/2015/49) 
 
Introduction and legal basis 
On 20 October 2015, the European Central Bank (ECB) received a request from De Nederlandsche Bank 
(DNB) for an opinion on a draft regulation on the ov ersight of the smooth operation of payment traffic 
(‘betalingsverkeer’ ) (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 indent of Article 2(1) of Council Decision 98/415/EC1, 
as the draft regulation concerns means of payment. 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 regulation 1.1 The draft regulation lays down rules aimed at promoting the smooth operation of payment traffic 
within the Netherlands. The draft regulation applies to banks, payment institutions and electronic money institutions that have their registered office in the Netherlands and individually process 
60 million or more non-cash payment transact ions every year, which brings institutions 
representing about 95% of total domestic transaction volume within the scope of the draft 
regulation. 
1.2 Pursuant to Dutch law, payment processing service providers, banks, payment institutions and 
electronic money institutions, when structuring their operational management, must comply with 
DNB regulations implementing international standards that promote the smooth operation of the payment systems. The draft regulation is intended to ensure public confidence in mass retail 
payment traffic and to minimize social unrest. 
1.3 According to the draft regulation, an institution will be required to, inter alia, (a) have a sound, clear 
and enforceable legal basis for its activities in all jurisdictions relevant to its activities; (b) have a 
transparent, balanced and adequate governance structure that takes into account the importance for society of smoothly operating payment traffic; (c) clearly arrange responsibilities in respect of 
payment traffic and standards used, covering at least availability and security, which should be 
assigned at a sufficiently senior level; (d) have a sound risk management framework relating to 
payments.  
                                                 
1  Council Decision 98/415/EC of 29 June 1998 on the consultation of the European Central Bank by national 
authorities regarding draft legislative provisions (OJ L 189, 3.7.1998, p. 42). 
ECB-PUBLIC  
2 1.4 Regarding operational risks, the draft regulat ion requires an institution to adequately identify, 
monitor and control operational risks related to payment traffic. This requires an institution to use systems, policies and control measures that identify risks and mitigate their impact. An institution 
must aim for continuous operation or timely recovery in the event of disruption of its business operations and service provision. The systems must be set up so as to ensure high availability and 
security levels. 
1.5 The draft regulation contains a number of specific operational requirements. From the end of 2016, 
time-critical payment orders must meet an availabilit y standard of at least 99.64%, to be increased 
to 99.76% from the end of 2017 and 99.88% from the end of 2018, in the peak demand period measured on a quarterly basis, and 98.5% outs ide the peak demand period. Institutions must 
ensure timely recovery of service provision for non-time-critical payment orders, implying that it may not take more than two hours before a payment order can be initiated. For the parts of the 
transaction processes that are carried out by third-party service providers, the availability standards 
must be laid down in contractual arrangements. 
1.6 The ECB understands that the sanctions regime in respect of the draft regulation is provided for in 
the Law on financial supervision. The Law on financial supervision is streamlined with the Law on administrative law
2, which contains instruments available for oversight and/or supervision, for 
instance, orders for incremental penalty payments or administrative penalties. 
 
2. General observation 
 The ECB understands that the draft regulation is exclusively concerned with payment traffic within 
the Netherlands involving institutions that have thei r registered office in the Netherlands and that it 
does not interfere with the implementation of the ECB’s and Eurosystem’s oversight policy for payment systems and payment instruments, as set out in Article 127(2) of Treaty, Article 3.1 and 
Article 22 of the Statute of the European System  of Central Banks and of the European Central 
Bank, the Regulation of the European Central Bank (EU) No 795/2014 of 3 July 2014 on oversight requirements for systemically important payment systems (ECB/2014/28)
3 (the ‘SIPS Regulation’) 
and the respective Eurosystem oversight policy frameworks.   
 
3. Specific observations 
3.1 The ECB notes that the def inition of payment traffic (‘ betalingsverkeer’ ) under the draft regulation 
includes the set of payment instruments, payment services, payment transactions, procedures and 
funds transfer systems to facilitate the circ ulation of money. The EC B understands that this 
regulation does not apply to systemically important payment systems, nor to interbank retail 
payment systems (" retailbetaalsystemen ") within the meaning of the SIPS Regulation and the 
revised Eurosystem oversight framework for retail payment systems.4 The ECB understands that 
the draft regulation is not meant to regulate the area of interbank transactions. The ECB also 
                                                 
2   Algemene wet bestuursrecht.  
3   OJ L 217, 23.7.2014, p. 16. 
4  https://www.ecb.europa.eu/pub/pdf/other/Revised_oversight_framework_for_retail_payment_systems.pdf . 
ECB-PUBLIC  
3 understands that the aim of the draft regulation is to ensure the smooth functioning of mass retail 
payments, by addressing the providers of retail payment services, whereas their underlying payment systems (interbank funds transfer systems) are subject to other regulation.  
3.2 The ECB notes that that it should be ensured by the regulator that the requirements on risk controls 
in the institutions are in line with the applicable national, European and international rules, 
regulations and principles, including the current and future applicable European Banking Authority 
guidelines and regulatory technical standards. 
3.3 The ECB welcomes the introduction of availabili ty requirements for time-critical payment orders, as 
well as timely recovery, introduced by the draft regulation to further strengthen public confidence in retail payment instruments, especially in those cases where the instant notification of the 
successful payment initiation is vital in the context of the underlying transaction (such as in-store payments or certain categories of e-commerce payments, like the purchase of digital services). In 
this respect, the ECB notes that national regulation in this area would be greatly enhanced by the 
emergence of a truly European approach, avoiding fragmentation of regulatory approaches across Member States. The ECB also welcomes that th is requirement will be phased in gradually from 
99.65% from the end of 2016 to reach an availability standard of at least 99.88% in the peak demand period from the end of 2018 to allow for the institutions to adapt their business practice 
accordingly.  
 
This opinion will be published on the ECB’s website.  
  
Done at Frankfurt am Main, 20 November 2015.  
[signed] 
 The President of the ECB 
Mario DRAGHI