EN Official Journal of the European Union C 51/3

OPINION OF THE EUROPEAN CENTRAL BANK

of 19 November 2013

on a proposal for a directive of the European Parliament and of the Council on the comparability of fees related to payment accounts, payment account switching and access to payment accounts with basic features

(CON/2013/77)

(2014/C 51/02)

Introduction and legal basis

On 24 September 2013, the European Central Bank (ECB) received a request from the Council for an opinion on a proposal for a directive on the comparability of fees related to payment accounts, payment account switching and access to payment accounts with basic features (1) (hereinafter the ‘proposed directive’).

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, since the proposed directive contains provisions affecting the European System of Central Banks’ tasks to promote the smooth operation of payment systems and to contribute to the smooth conduct of policies relating to the stability of the financial system, as referred to in the fourth indent of Article 127(2) and Article 127(5) of the Treaty. 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 and content of the proposed directive

The proposed directive establishes a common Union framework for the protection of consumer rights related to access and use of payment accounts. This framework will comprise rules on all of the following: (a) the transparency and comparability of fees charged to consumers in connection with their payment accounts in the Union (2); (b) services for switching payment accounts provided by payment service providers to consumers (3); (c) the right of consumers legally resident in the Union to open and use a payment account with basic features in the Union irrespective of their nationality or Member State of residence (4); (d) related matters such as designation and duties of competent authorities and sanctions in the event of non-compliance by payment service providers (5).

2. General observations

The ECB strongly supports the proposed directive. Previously in other instances, the ECB has supported the imposition of specific transparency requirements for financial transactions, accompanied by effective monitoring of compliance with those requirements, to make it easier to compare different products and services and therefore to improve competition among financial actors (6). The ECB has also promoted setting standards as a means of facilitating the execution of cross-border payments (7). Finally, the proposed directive should give consumers easier access to payment accounts and contribute to the creation of a Union-wide payment area, a goal that the ECB has consistently supported (8).

3. Specific observations

3.1. Defined terms

The terms defined in the proposed directive (9) should be aligned with those of Directive 2007/64/EC of the European Parliament and of the Council (hereinafter the ‘Payment Services Directive’ (PSD)) and Regulation (EU) No 260/2012 of the European Parliament and of the Council (10) (hereinafter the ‘SEPA Regulation’), unless there are objective reasons for departing from such defined terms. This concerns in particular the definitions of the terms ‘durable medium’ and ‘direct debit’. The use of standardised terminology based on existing Union legislation for payment services will improve consistency and facilitate the understanding of Union legal acts. In the interests of clarity and consistency, it also appears sensible to define ‘switching’ simply in terms of the services provided under Article 10 of the proposed directive (11).

3.2. List of covered services and powers of the authorities to obtain information

The list of basic payment services covered by the proposed directive should reflect payment services accounting for at least 80 % of the most representative payment services subject to a fee at national level. However, more far-reaching conditions, mandating a certain number of services on such a list, may prove excessive. Moreover, it should be clarified that the competent authorities are entitled to obtain information from payment service providers on the profitability of individual services provided in connection with payment accounts for the purpose of compiling the list of the most representative payment services (12). Specific reporting obligations may need to be established for this purpose, which should at the same time ensure the right of payment service providers to protect business secrets from their competitors (13).

3.3. Right to open a payment account with basic features — limitation in terms of currency of account

The proposed directive introduces a right for consumers legally resident in the Union to open and use a payment account with basic features in any Member State (14). However, the wording of Article 15 of the proposed directive might be understood to imply that payment service providers may be required on request to open a payment account with basic features denominated in any Member State currency. Given that the implementation of such a broad requirement may not be economically viable, it suffices to limit this right to open and use a payment account to payment accounts in the currency of the Member State where the payment service provider is located (15).

3.4. Cross-border cooperation

Finally, the proposed obligation on the competent national authorities within a Member State to cooperate to ensure effective compliance with the proposed directive (16) should be expanded to include an obligation on competent authorities from different Member States to cooperate on a cross-border basis. This is to ensure that national implementation measures and practices do not diverge to an extent that jeopardises the proposed directive’s aim to approximate laws and measures to bring about a single market in payment account services within the Union (17).

Where the ECB recommends that the proposed directive is amended, specific drafting proposals are set out in the Annex accompanied by explanatory text to this effect.

Done at Frankfurt am Main, 19 November 2013. The President of the ECB Mario DRAGHI

(1) COM(2013) 266 final.

(2) See Chapter II of the proposed directive.

(3) See Chapter III of the proposed directive.

(4) See Chapter IV of the proposed directive.

(5) See Chapters V and VI of the proposed directive.

(6) See paragraph 2.4 of Opinion CON/2007/29, paragraph 1.1 of Opinion CON/2012/103 and paragraph 3 of the general observations in Opinion CON/2012/10. All ECB opinions are published on the ECB website at: http://www.ecb.europa.eu

(7) See paragraph 11 of Opinion CON/2001/34.

(8) See Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market (OJ L 319, 5.12.2007, p. 1).

(9) See Article 2 of the proposed directive.

(10) 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 (OJ L 94, 30.3.2012, p. 22).

(11) See proposed amendments 1 to 3. See also paragraph 3.3 of Opinion CON/2013/32.

(12) See points (4) and (5) of Article 3(2) of the proposed directive.

(13) See proposed amendment 4.

(14) See Article 15 of the proposed directive.

(15) See proposed amendment 5.

(16) See Article 20(2) of the proposed directive.

(17) See proposed amendment 6.