Report from the Commission to the European Parliament and to the Council on the application of Directive 97/5/EC of the European Parliament and of the Council of 27 January 1997 on cross-border credit transfers
Date: 2002-11-29
Institutions: European Commission
Subjects: bank, bank charges, consumer protection, credit transfer, free movement of capital, intra-EU trade, law of banking

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 29.11.2002
COM(2002) 663 final

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND
TO THE COUNCIL

on the application of Directive 97/5/EC
of the European Parliament and of the Council of 27 January 1997
on cross-border credit transfers

SUMMARY

This  Commission  report  on  the  implementation  of  the  Cross-Border  Credit  Transfers
Directive (97/5/EC), is, as provided for in Art. 12 of this Community text, to be submitted to
the European Parliament and the Council.

This report describes the way in which the provisions of the Directive are implemented in the
Member States: both, the legal transposition of the Directive into national legislation as well
as the actual application of these provisions by the banking industry in the Member States are
dealt with.

In general, Directive 97/5 EC has been adequately transposed in all Member States. However,
there are some specific cases of concern: e.g. certain Member States have not fully reflected
the  prior  and  subsequent  information  requirements  of  the  Directive,  some  Member  States
have also failed to adequately transpose the provisions obliging them to ensure the existence
of adequate and effective complaints and redress procedures. All in all, the legal transposition
of the Directive into national legislation is, however, quite satisfactory.

As  regards  the  actual  situation  of  cross-border  credit  transfers  in  each  Member  State,  the
situation  is,  however,  far  from  satisfactory.  Whereas  execution  times  for  the  transfers  are
acceptable  (this  had  been  a  particularly  concern  addressed  in  Article  12),  the  persistent
practice of double charging, the lack of customer information and the unwillingness of some
credit institutions to compensate for late payments or to refund for lost payments or unlawful
deductions is alarming.

The  conclusion  of  this  document  proposes  lines  for  possible  action  to  be  taken  in  order  to
further  improve  the  performance  of  cross-border  credit  transfers.  The  principle  of  non-
discrimination between cross-border credit transfers and credit transfers at national level has
already been achieved by the Regulation on cross-border payments in euro (2560/2001/EC).
This Regulation imposes the equality of charges for cross-border and national payments and
should thus lead to a reduction of the charges for cross-border payments and in particular of
cross-border  credit  transfers,  which  was  a  major  public  concern.  This  report  also  addresses
further  necessary  improvements  in  the  field  of  cross-border  credit  transfers  and  brings
forward proposals for amending the Directive.

However, having in mind the overall objective of "Better Regulation", the report proposes to
work towards  a more coherent  and comprehensive legislation  for  payments  and  to  integrate
the proposals for amending the Directive into a consolidated framework for payments in the
Internal  Market.  Such  an  initiative  would  contain  all  legislative  measures  regarding  retail
payments  in  the  Internal  Market,  thus  abandoning  the  present  piece-meal  approach  and
aiming at establishing a single legal act in this field.

2

1.

2.

2.1.

2.2.

2.3.

2.4.

2.5.

3.

3.1.

3.2.

3.3.

Introduction.................................................................................................................. 6

General remarks on the implementation of the Directive ............................................ 7

Origin of the Directive ................................................................................................. 7

The Aim of the Directive ............................................................................................. 7

The Impact of the Directive ......................................................................................... 8

Links with other Community Legislation .................................................................... 8

Implementation of the Directive under the EEA agreement........................................ 8

Article by article implementation of the Directive in the Member States ................... 9

General Situation.......................................................................................................... 9

Adequacy of Transposition – General.......................................................................... 9

Article 1 – Scope.......................................................................................................... 9

3.3.1.

Transposition in Member States ................................................................................ 10

3.3.2.

Practical application of provision in Member States ................................................. 10

3.3.3. Cases of concern ........................................................................................................ 10

3.4.

Article 2 – Definitions................................................................................................ 10

3.4.1.

Transposition in Member States ................................................................................ 10

3.4.2.

Practical application of provision in Member States ................................................. 12

3.4.3. Cases of concern ........................................................................................................ 12

3.5.

Article 3 – Prior information on conditions for cross-border credit transfers............ 12

3.5.1.

Transposition in Member States ................................................................................ 12

3.5.2.

Practical application of provision in Member States ................................................. 13

3.5.3. Cases of concern ........................................................................................................ 13

3.6.

Article 4 –Information subsequent to a cross-border credit transfer.......................... 13

3.6.1.

Transposition in Member States ................................................................................ 13

3.6.2.

Practical application of provision in Member States ................................................. 14

3.6.3. Cases of concern ........................................................................................................ 14

3.7.

Article 5 – Specific undertakings by the institution................................................... 15

3.7.1.

Transposition in Member States ................................................................................ 15

3.7.2.

Practical application of provision in Member States ................................................. 15

3.7.2.1. Accuracy in relation to execution times quoted:........................................................ 15

3.7.2.2. Accuracy in relation to charges quoted:..................................................................... 16

3

3.7.3. Cases of concern ........................................................................................................ 16

3.8.

Article 6 – Obligations regarding time taken............................................................. 16

3.8.1.

Transposition in Member States ................................................................................ 17

3.8.2.

Practical application of provision in Member States ................................................. 17

3.8.3. Cases of concern ........................................................................................................ 17

3.9.

Article 7 – Obligation to execute the cross-border transfer in accordance with
instructions ................................................................................................................. 18

3.9.1.

Transposition in Member States ................................................................................ 18

3.9.2.

Practical application of provision in Member States ................................................. 18

3.9.3. Cases of concern ........................................................................................................ 19

3.10.

Article 8 – Obligations upon institutions to refund in the event of non-execution of
transfers ...................................................................................................................... 19

3.10.1. Transposition in Member States ................................................................................ 19

3.10.2. Practical application of provision in Member States ................................................. 20

3.10.3. Cases of concern ........................................................................................................ 20

3.11.

Article 9 – Situation of force majeure........................................................................ 20

3.11.1. Transposition in Member States ................................................................................ 20

3.11.2. Practical application of provision in Member States ................................................. 21

3.11.3. Cases of concern ........................................................................................................ 21

3.12.

Article 10 – Settlement of Disputes ........................................................................... 21

3.12.1. Transposition in Member States ................................................................................ 22

3.12.2. Practical application of provision in Member States ................................................. 23

3.12.3. Cases of concern ........................................................................................................ 23

3.13.

Other issues ................................................................................................................ 23

3.13.1. Sanctions .................................................................................................................... 23

3.13.2. Right to Cancel or Terminate Transfers..................................................................... 24

4.

Conclusion ................................................................................................................. 24

4.1.

Assessment of the transposition in Member States.................................................... 24

4.1.1. Main differences between national regimes and Directive 97/5/EC.......................... 24

4.1.1.1. Article 2 - definitions ................................................................................................. 24

4.1.1.2. Article 3 – provision of information prior to a cross-border credit transfer .............. 24

4.1.1.3. Article 4 – Provision of information after a cross-border credit transfer................... 25

4

4.1.1.4. Banks' undertakings in relation to requests for cross-border credit transfers Article 525

4.1.1.5. Article 9 “Force majeure” .......................................................................................... 25

4.1.1.6. Article 10 “Complaints and redress procedures” ....................................................... 25

4.2.

Assessment of the application of the provisions in the Member States..................... 26

4.2.1.

Provision of information before and after a cross-border transfer:............................ 26

4.2.2.

Execution times.......................................................................................................... 26

4.2.3. Obligations to compensate for late payments ............................................................ 26

4.2.4. Obligation to execute the cross-border transfer in accordance with instructions ...... 26

4.2.5. Refund of unlawfully deducted charges..................................................................... 26

4.2.6.

“Money-back guarantee” ........................................................................................... 26

4.3.

Proposals for the revision of the Directive................................................................. 27

5

REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND
TO THE COUNCIL

on the application of Directive 97/5/EC
of the European Parliament and of the Council of 27 January 1997
on cross-border credit transfers

1.

INTRODUCTION

Directive 97/5/EC on cross-border credit transfers1 entered into force on 14 August
1999, two and a half years after its publication in the Official Journal on 14 February
1997 (see Annex 1).

Article  12  of  the  Directive  requests  of  the  Commission  to  submit  a  report  to  the
European  Parliament  and  the  Council  on  the  application  of  this  Directive,
“accompanied,  where  appropriate,  by  proposals  for  its  revision”.  The  second
paragraph  of  that  Article  emphasises  in  particular  to  report  on  execution  times  for
payments [time limit in Article 6(1)].

The Commission thus responds to this obligation and reports whether the provisions
of  Directive  97/5/EC  have  been  fully  transposed  into  national  law  by  adequate
national legislative measures in the 15 Member States. Furthermore, the report also
evaluates  the  actual  situation  of  how  the  Directive  is  applied  in  practice  in  each
Member  State.  Finally,  the  report  contains  several  proposals  for  the  revision  of
Directive 97/5/EC as well as for the further development of legislation in the field of
payments in the Internal Market.

A study on the implementation and application of Directive 97/5/EC was undertaken
by a  consultant  in  order  to  substantiate  this  report2.  The  members  of  the  “Payment
Systems Government Expert Group”, a group of payments experts from the Member
States set up in order to discuss payment issues and to monitor the implementation of
the payments legislation, were informed about the results of the study and invited to
express their reactions. Several Member States submitted additional comments. The
Commission assumed that the consultant’s findings, which were not commented on
by Member States before 30/9/2001, were correct.

This  study  had  shown  that  the  legal  transposition  of  the  Directive  into  national
legislation  was  in  general  adequate.  However,  the  study  also  evidenced  that  the
factual  application  of  the  Directive  in  day-to-day  operations  was  far  from  being
satisfactory.  The  study  revealed  that  –  despite  the  Commission’s  and  Parliament’s
continuous  efforts  and  warnings  towards  the  banking  industry  to  improve  the
situation  -  banking  charges  for  cross-border  credit  transfers  remained  at  an
unacceptably high level.

These alarming study results called for immediate legislative action. On 25 July 2001
the Commission therefore proposed to the European Parliament and to the Council a
Regulation on cross-border payments in euro  (2560/2001/EC). This Regulation was

1

2

OJ L 43, 14/2/1997, p. 25
The details of the study can be found on the Commission web-site:
http://europa.eu.int/comm/internal_market/en/finances/payment/directives/97-5study.pdf

6

                                                
adopted by the European Parliament and Council on 19 December 2001 and entered
into force on 1 January 2002. It aims at reducing charges for cross-border payments
in  euro,  so  that  by  1/7/2002  (concerning  electronic  payment  transactions),
respectively by 1/7/2003 (concerning cross-border credit transfers) charges would be
aligned to those for corresponding payments at national level.

2.

GENERAL REMARKS ON THE IMPLEMENTATION OF THE DIRECTIVE

2.1.

Origin of the Directive

In  1990,  the  Commission  published  its  first  general  documents  on  the  operation  of
the  payment  systems  within  the  framework  of  the  Single  Market:  The  “Discussion
paper  –  making  payments  in  the  Internal  Market”3  already  stated  that  payment
systems function rather well inside each Member State, but remained unsatisfactory
in a cross-border context. In the same year, the Commission’s "Recommendation on
financial
the 
transactions"4  proposed  several  principles  and  measures  in  order  to  improve  cross-
border payments.

transparency  of  banking  conditions 

to  cross-border 

relating 

Studies,  which  the  Commission  launched  in  1993  and  1994  (see  footnote  4),  were
aimed at checking whether this Recommendation was being properly applied and at
monitoring customer-information practices in the banking sector. It was in the light
of the results of these studies, which revealed many shortcomings in the operation of
cross-border  transfers  and  of  the  European  Parliament's  Resolution  of  12  February
19935 , that the Commission decided to propose legally binding measures concerning
cross-border credit transfers.

In  1994,  the  Commission  published  a  Communication  on  the  transfers  of  funds6
which  contained  two  very  important  texts:  a  preliminary  draft  proposal  for  a
Directive  (which  became  Directive  97/5  under  consideration)  and  a  draft
Communication on the implementation of the rules of competition with this type of
transfer7.

The Directive was, after very lengthy negotiations, adopted on 27 January 1997. Due
to  the  fact  that  some  Member  States  considered  it  very  difficult  to  incorporate  the
Directive  into  national  legislation,  the  transposition  period  for  implementation  was
unusually long, namely 30 months.

The Cross-Border Credit Transfers Directive has now been in force for almost three
years, namely since 14 August 1999.

2.2.

The Aim of the Directive

The  Cross-Border  Credit  Transfers  Directive  establishes  minimum  information  and
performance requirements for cross-border credit transfers, so as to ensure that funds

3

4

5

COM 90/447 fin of 26/9/1990
Recommendation 90/109/EEC, OJ L 67, 15/3/1990, p. 39
OJ C 72 of 15/3/1993
COM(94) 436 of 18/11/94

6
7 Which became later the Commission's Notice on the application of the EC competition rules to cross-border

transfers (OJ C 251, 27/9/1995, p. 3)

7

                                                
can be transferred cross-border from one part of the Community to another rapidly,
reliably and at low cost.

To this end, the Directive contains rules on

(cid:1)  Transparency:  the  Directive  provides  for  information  obligations  prior  and
subsequent  to  the  transaction.  Armed  with  such  information  made  available
regarding  the  conditions  applicable  to  cross-border  credit  transfers,  users  of
payment systems would thus be in a better position to compare the terms available
on the market, so that competition between different systems would be reinforced
and abnormally high prices would be eliminated.

(cid:1)  Performance: the Directive lays down certain principles which apply as standard
transfer  conditions,  namely  regarding  the  execution  period,  the  distribution  of
costs and the liability  of the originator's  bank for  "lost" transfers. On the  whole,
these  rules  should  have  the  effect  of  ensuring  that  cross-border  credit  transfers
meet  the  requirements  of  a  genuine  Single  Market  by  introducing  standard
principles for the entire Community.

(cid:1)  Redress:  the  Directive  introduces  provisions  on  complaints  procedures.  By
obliging  Member  States 
to  provide  for  adequate  and  effective  redress
mechanisms,  the  customer  is  given  efficient  tools  to  enforce  the  rights  given  to
him by the Directive.

2.3.

The Impact of the Directive

The Directive would have had enormous  impact on the functioning of cross-border
credit  transfers  within  the  European  Union,  had  the  Directive’s  provisions  been
applied  correctly  by  all  banks.  Although  the  execution  of  cross-border  credit
transfers has now become much swifter, the goal of rendering these transfers cheaper
and  more  reliable  cannot  be  considered  as  having  been  achieved.  This  failure  of
banks  finally  led  to  the  proposal  and  adoption  of  the  recent  Regulation  on  Cross-
Border Payments in euro8.

2.4.

Links with other Community Legislation

The Cross-Border Credit Transfers Directive was the first legally binding instrument
at EU-level dealing with payments in general and with credit transfers in particular.
Subsequently,  the  Regulation  on  Cross-Border  Payments  in  euro  further  regulates
cross-border credit transfers by introducing  the principle that i.a. charges for  cross-
border credit transfers and corresponding credit transfers at national level must be the
same.

2.5.

Implementation of the Directive under the EEA agreement

The  Directive  applies  to  Iceland,  Liechtenstein  and  Norway  under  the  EEA
Agreement.  The  EFTA  Surveillance  Authority  is  preparing  a  report  on  the
implementation of the Directive by these countries.

8

Reg. 2560/2001 of 19/12/2001; OJ L 344, 28/12/2001, p.13

8

                                                
3.

ARTICLE  BY  ARTICLE  IMPLEMENTATION  OF  THE  DIRECTIVE  IN  THE  MEMBER
STATES

3.1.

General Situation

In  accordance  with  the  long  transitional  period  granted  for  implementing  national
measures, namely 30 months, the Directive was only to be transposed by 14 August
1999.  However, Member  States  considered  it  desirable  that  the  Directive  would  be
implemented before the beginning of Phase III of the Economic and Monetary Union
(1 January 1999). For that reason, the Member States entered the following statement
into  the  Council  minutes:  "The  European  Parliament,  the  Council  and  the
Commission  note  the  determination  of  the  Member  States  to  implement  the  laws,
regulations and administrative provisions required to comply with this Directive by 1
January 1999." Despite this declaration of intent, no Member State met this political
undertaking to implement the Directive by 1 January 1999.

A majority of Member States (11) transposed the Directive into national law within
the  legal  deadline  of  14  August  1999  (cf.  Annex  3).  Several  Member  States  had
adopted  legislation  before  the  legal  deadline  (and  in  the  case  of  The  Netherlands,
even before the date laid down in the Joint Undertaking), although the date of entry
into force was not immediate but only foreseen for later.

Four  Member  States  (Belgium,  Greece,  Italy,  and  Portugal)  failed  to  transpose  the
Directive  within  the  legal  deadline.  In  one  case  (Greece)  an  attempt  was  made  to
rectify  late  implementation  by  providing  for  retroactive  effect  to  its  national
legislation.

In  conclusion,  all  Member  States  have  now  adopted  implementing  legislation
(cf. annex 2).

3.2.

Adequacy of Transposition – General

A limited number of legal concerns, e.g. regarding information  requirements  or the
provisions  concerning  redress  mechanisms,  have  been  identified.  Otherwise,  the
transposition  of  the  Directive  into  Member  State  legislation  has  been  in  line  with
Member States' obligations.

This  report  also  identifies  a  number  of  differences  (as  opposed  to  clear  conflicts)
between  Member  States'  implementing  legislation  and  the  Directive.  These
differences may in the future, in theory9, lead to the issue of whether the minimum
conditions for the performance of cross-border credit transfers are being met in one
or more Member States.

3.3.

Article 1 – Scope

Article 1 defines the scope. The Directive applies to cross-border credit transfers of
up to € 50,000 (whether effected in the curren cies of the Member State or in euros).
For  the  purposes  of  the  Directive  a  'cross-border  credit  transfer'  is  a  transaction
carried  out  on  the  initiative  of  an  originator  via  a  credit  institution  in  one  Member

9

To  date,  there  has  been  no  case-law  in  any  Member  State  interpreting  the  provisions  of  either  Directive
97/5/EC or of national implementing legislation

9

                                                
State,  with  a  view  to  making  funds  available  to  a  beneficiary  at  an  institution  in
another Member State. The originator and the beneficiary may be the same person.

3.3.1.

Transposition in Member States

A number of Member States (Finland, Germany and Portugal) used the opportunity
to  legislate  also  for  national  credit  transfers  and  not  only  for  cross-border
transactions.

As  the  Directive  is  applicable  within  the  EEA,  by  virtue  of  the  Agreement  on  the
EEA  and  its  related  procedures,  most  Member  States  expressly  stated  in  their
implementing  legislation  that  it  would  apply  also  to  the  territory  of  the  European
Economic  Area  ('EEA').  Danish  law  went  one  step  further  and  granted  power  to
extend  the  implementing  legislation  to  additional  countries  (provided  always  that
those countries had equivalent rules).

Germany extended its implementing legislation to cover cross-border credit transfers
in excess of the Directive's ceiling of €50,000. The German provisions set a ceiling
of €75,000.

3.3.2.

Practical application of provision in Member States

No problems  on  the practical application regarding  the scope  of the Directive  have
been reported.

3.3.3. Cases of concern

None.

3.4.

Article 2 – Definitions

This Article proposes 12 definitions of terms used in the Directive. Defined are the
“players”  in  a  cross-border  credit  transfer  (‘institution’:  credit  institution,  other
institution,  financial  institution,  intermediary  institution  as  well  as  ‘customer’:
originator  and  beneficiary),  and  the  terms  related  to  a  cross-border  credit  transfer
(cross-border  credit  transfer,  cross-border  credit  transfer  order,  reference  interest
rate, date of acceptance).

It  is  important  to  stress  that  the  Directive  applies  to  any  legal  or  natural  person
carrying out cross-border credit transfers  by way  of business.  If in  a  Member  State
non-banking or even non-financial establishments are allowed to carry out payment
transactions, such establishments are covered by the Directive. Member  States may
(and  many  do)  reserve  transfer  transactions  for  certain  categories  of  institutions,
particularly banks.

3.4.1.

Transposition in Member States

Legislation  in  a  number  of  Member  States  (Austria,  Denmark,  Germany,  Portugal
and Sweden) omits a majority of the definitions of Directive 97/5/EC. In practice, the
absence of definitions in specific cases is not deemed to give rise to significant legal
issues. In the event of a dispute, general provisions of national law would apply, in
addition to the general principle of Community law that national measures should be
interpreted consistently with corresponding provisions laid down in Community law.

10

No significant legal issues arising from any single Member State's use of different or
additional definitions have been identified.

A  limited  number  of  definitional  differences  give  rise  to  more  general  issues  of
principle:

'credit institution': implementing legislation of a number of Member States (such as
Italy, Sweden) applies not to 'credit institutions' (as appears in the  Directive) but to
other  defined  institutions.  In  Italy,  implementing  legislation  applies  to  'banks'.  In
Sweden,  implementing  legislation  applies  to  'banks'  and  'other  companies'.  This  is
unlikely to have major consequences in practice;

'financial institution': this definition is omitted from the implementing legislation of
several  Member  States  (Austria,  Italy,  Portugal,  the  Netherlands,  Germany  and
Denmark)  although it is not considered that this is  of  legal  significance in  terms of
the rights and obligations of consumers and credit institutions;

'banking day': the absence of a definition of banking day from the Directive has been
criticised in at least one Member State (Belgium). A number of Member States have
inserted a definition of what constitutes a 'banking day' (Belgium), 'banking business
day' (Italy), 'banking working day' (Austria), 'bank day' (Sweden) or equivalent, into
legislation implementing Directive 97/5/EC. These definitions will take into account
specific national requirements or traditions.

'cross  border  credit  transfer':  in  some  Member  States  (Finland,  Germany  and
Portugal),  the  opportunity  presented  by  implementing  the  Directive  has  also  been
used to legislate for internal or domestic credit transfers. Where this is the case, the
definitions appearing in the Directive are supplemented by additional definitions. In
Belgium, the term 'money transfer' is used in preference to the term 'credit transfer'.
One  effect  of  this  difference  has  been  to  underline  the  fact  that  the  terms  of  the
implementing  legislation  will  apply  only  to  transfers  initiated  by  a  deposit,  or
withdrawal from an  existing  account  as e.g. opposed to debit transfers. This is not,
however, inconsistent with the position under Directive 97/5/EC;

'date  of  acceptance':  in  one  Member  State  (Spain)  the  definition  of  'date  of
acceptance'  is  supplemented  by  a  presumption  that  acceptance  will  be  deemed  to
have occurred within one day of the instructions provided by the customer. In some
other Member State,  the  definition used  in  the  Directive  has  not  been implemented
(Portugal, Germany, Denmark and Austria). In the United Kingdom, 'commencement
date' is defined as the date upon which a number of different conditions are fulfilled.
In  addition  to  those  conditions  laid  down  by  the  Directive,  United  Kingdom
legislation also allows the customer and his institution to agree a different, later date
of acceptance. Such a provision is not expressly foreseen by the Directive.

Directive 97/5/EC includes no specific provision identifying the value date (i.e. the
date  on  which  funds  are  credited  and  available  on  a  beneficiary's  account).  Some
Member States do identify the concept of 'value date' (Denmark, Germany, Portugal
and the United Kingdom),10 but practice differs from Member State to Member State.

10

In Germany, this rule, which provides for greater consumer protection than is laid down by the Directive, is
the result of a decision of the Federal High Court, dating  from 1997. That  decision  held  that  defining  the

11

                                                
3.4.2.

Practical application of provision in Member States

No  problems  regarding  the  definitions  of  the  Directive  have  been  reported  in  the
practical  application  of  the  Directive  in  the  Member  States,  and  also  not  due  to
Member States’ use of different or additional definitions.

This does not, however, exclude that differences could arise in the future between the
cross-border  credit  transfer regimes of different Member States. Although  this  may
appear paradoxical, it is legally perfectly possible for all such Member States to be in
compliance with their obligations under Community law. One example of this could
be the fact in relation to  the  execution  periods: "banking day"  is not  defined in the
Directive;  however,  some  Member  States  define  "banking  day"  as  an  equivalent
notion in their transposing laws. Different, i.e. diverging definitions would not be in
conflict  with  the  Directive,  but  still  raise  difficulties,  as  the  calculation  of  the
execution periods are based on the notion of "banking days".

3.4.3. Cases of concern

The different definition of “date of acceptance” in Spain might give rise to difficulty,
since in Spain acceptance is presumed only on the business day 'following' the order,
which has consequences for calculating the execution times.

3.5.

Article 3 – Prior information on conditions for cross-border credit transfers

Article 3 of Directive 97/5/EC requires the institutions to provide written information
“in  a  readily  comprehensible  form”  to  customers  before  carrying  out  cross-border
credit transfers. This information must at least contain an indication of the execution
time, the way fees and commissions are being calculated, the value date applied, the
details of the complaint and redress procedure available and as well, if applicable, an
indication of the reference exchange rate used.

3.5.1.

Transposition in Member States

In some countries, minor issues of interpretation may arise. For example, in Austria,
no  reference  is  made  to  'readily  comprehensible  form'  (but  this  would  arguably  be
implied by Austrian administrative law). In the same Member State, no reference is
made to the provision of the 'value date' as part of the prior information. Austria has
also omitted to refer to complaints and redress schemes.

Certain  Member  States'  implementing  legislation  (Italy,  Austria,  United  Kingdom,
Sweden  and  France)  does  not  expressly  adopt  the  term  'reference  exchange  rates
used',  required  by  the  last  indent  of  Article  3  of  Directive  97/5/EC,  and,  instead,
refers to, for example, 'exchange rate used'.

Danish  implementing  legislation  exceeds  the  information  obligations  laid  down  in
the Directive, as it requires credit institutions to provide prior information not only in
relation  to  the  reference  rate  of  exchange,  but  also  to  the  date  of  exchange.
Furthermore,  Danish  implementing  legislation  requires  credit  institutions  to  inform

value date as the date following the day on  which  money  was  made available to the beneficiary's account
constituted  an  infringement  of  the  consumers'  rights  under  the  German  Act  on  General  Terms  and
Conditions

12

                                                                                                                                                        
customers not only about the redress schemes as such, but also about the customers’
right to compensation in the context of such procedures.

3.5.2.

Practical application of provision in Member States

Only  16  out  of  40  tested  credit  institutions  provided  the  customer  with  a
brochure/printed  material.  All  the  brochures/printed  material  contained  information
on the charges to be applied. Information on the other areas was not present in more
than  six  cases,  with  information  on  complaints  and  redress  procedures  the  least
prevalent,  appearing  in  only  three  cases.  Only  3  brochures  contained  all  the
information asked for in Article 3 of Directive 97/5/EC (2 UK banks and 1 Belgian
bank).

As for the quality of the brochures/printed material, only the information on charges
was  considered  between  adequate  and  good.  Brochure  information  on  timing,
exchange  rates  and  value  date  was  generally  poor,  and  information  on  complaints
and redress procedures was considered nearer useless than poor.

3.5.3. Cases of concern

The Austrian transposing law does not oblige institutions to inform customers about
complaints  and  redress  procedures.  This  has  to  be  considered  as  an  incomplete
transposition of Art. 3 of Dir. 97/5/EC.

The other cases of concern do not concern inadequate or incomplete transposition but
the lack of correct application of the national laws by the institutions executing cross-
border  credit  transfers.  The  study  undertaken  to  substantiate  this  report  clearly
showed  that  the  prior  information  obligations  laid  down  by  the  Directives  and  the
national implementing laws were not complied with by many institutions.

3.6.

Article 4 –Information subsequent to a cross-border credit transfer

Subsequent  to  a  cross-border  credit  transfer,  customers  must  be  provided  with
documentation in writing about various details of the transfer: a reference in order to
allow identification of the transfer, the original amount of the transfer, the amount of
all charges and fees, the value date and the exchange rate, if applied. In case that the
charges  are  to  be  wholly  or  partly  born  by  the  beneficiary,  the  latter  should  be
informed of this by his institution.

3.6.1.

Transposition in Member States

Article  4  of  the  Directive  lays  down  provisions  relating  to  'clear  information  in
writing  including  where  appropriate  by  electronic  means'.  Some  Member  States
(Austria,  Denmark  and  Ireland)  have  failed  to  expressly  make  the  requirement  that
such information be: (a) clear; and/or (b) in writing; and/or (c) where appropriate by
electronic means.

In Ireland there is no positive obligation to supply the requested specified categories
of information, but only to 'make it available' in general terms.

Article  4  allows  customers  to  waive  their  rights  to  subsequent  information.  This
provision is not always  implemented  into Member  State  law.  No  right  to  waiver  is
provided  in  Germany,  Denmark,  Spain  and  France  and  is  only  partly  granted  in

13

Sweden  and  Belgium.  This  lack  of  transposition  may,  arguably,  be  considered  as
more protective of the customer.

The  United  Kingdom  includes  provisions,  which  more  specifically  delimit  the
obligations imposed upon credit institutions to provide information subsequent  to a
credit  transfer.  In  the  UK,  a  'long-stop'  time  period  of  one-month  is  imposed  upon
credit  institutions  within  which  information  must  be  supplied.  This  provision
provides greater  protection  to  the  consumer  than  that  provided  by  the  Directive.  In
Denmark,  the  minimum  requirements  of  Article  4  of  Directive  97/5/EC  are  made
absolute  requirements  (although  this  is  not  strictly  a  provision  which  'exceeds'  the
provisions of the Directive). Danish legislation also imposes an additional condition
to the obligation of credit institutions to provide subsequent information - Danish law
requires that such information be supplied 'promptly'.

3.6.2.

Practical application of provision in Member States

In 97.6% of all transfers executed within the implementation study, the originators of
the  cross-border  credit  transfer  received  information  on  the  transfers  either  on
separate advice slips (82%) or on their bank statements.

The level of information provided to the originator was generally good. Information
on  the  original  amount  of  the  transfers  and  the  charges  applied  was  almost  always
provided.  The  reference  number  was  provided  in  74%  of  all  transfers,  but  only  in
half  of  the  cases  in  Belgium,  in  Ireland  and  in  the  UK  and  none  in  Portugal.  The
value  date  was  provided  in  75%  of  all  transfers,  but  again,  not  in  certain  countries
(notably in Belgium, where no bank, and in the UK, where only one out of the four
banks  used  provided  the  value  date  on  the  sender's  documentation).  The  exchange
rate was provided for 95.1% of transfers overall, with one bank in Germany and one
bank in the UK not providing this information.

The level of information provision to receivers was lower than to senders: 86.5% of
all  beneficiaries  received  information  on  advice  slips  or  bank  statements.  The
information on the original  amount transferred was very poor; this information was
missing  in  more  than  half  of  the  advice  slips/statements  provided.  The  information
quality  for  the  other  criteria  was  significantly  higher.  The  reference  was  quoted  in
74% of incoming transfers. The UK and Ireland stand out however, with fewer than
50%  of  transfers  providing  this  information.  Charges  to  the  beneficiary  were
identified for 87% of the transfers which incurred deductions. When this information
is not  provided, receivers cannot be sure  whether their  bank has  made  a  charge,  or
the  sender  did  not  send  sufficient  funds.  The  value  date  was  quoted  for  77%  of
transfers.

3.6.3. Cases of concern

The situation concerning the practical application of Article 4 is very similar to what
has  been  said  for  Article  3;  although  information  provided  by  the  institutions
executing cross-border credit transfers subsequent to a transfer is better than the prior
information  provided,  the  situation  is  still  far  from  being  satisfactory.  The  study
undertaken  to  substantiate  this  report  clearly  showed  that  certain  information
obligations  to  be  fulfilled  subsequent  to  a  cross-border  credit  transfer  were  not
complied with by the institutions.

14

3.7.

Article 5 – Specific undertakings by the institution

Article 5 obliges institutions  to make,  at a  customer's request, a  specific offer for  a
cross-border  credit  transfer,  in  particular  concerning  the  execution  time  and  the
commission fees and charges. The institution would, of course, not be compelled to
enter into a contractual relationship with everyone who so requests; however, if such
an undertaking is given with the view of entering into a contractual relationship, the
institution would be bound by its offer.

3.7.1.

Transposition in Member States

Italy  has  not  fully  implemented  this  provision.  The  implementing  legislation  only
refers to the liability for failure to execute within a time limit, but does not provide
for undertakings in relation to the time taken, the commission fees and charges.

The  circumstances  in  which  a  credit  institution  may  “refuse  to  do  business  with  a
customer” is an element also reflected in Article 5 of Directive 97/5/EC: this will in
general be  governed by other  (i.e. non-implementing) national legal instruments.  In
France, for example, consumers have a right to hold a bank account and to receive a
basic  banking  service.  In  some  Member  States  (Portugal,  Austria,  France,  Italy,
Spain and Sweden) this element of Article 5 has not been transposed at all.  This is
however not deemed to cause a problem of correct transposition.

Austrian implementing legislation  goes further  than the Directive by providing that
credit institutions may not charge fees or commissions for the execution of the credit
transfer,  when  specific  undertakings  agreed  between  the  parties  have  not  been
complied with.

3.7.2.

Practical application of provision in Member States

3.7.2.1. Accuracy in relation to execution times quoted:

In the course of the study, institutions were asked by the consultant in advance, how
long the transfers would take to arrive. Most institutions indicated a maximum time
of  five  to  seven  days.  The  main  exceptions  were  banks  in  France  and  Italy  which
claimed the transfers would only take one day. A more cautious approach was taken
by  banks  in  the  Netherlands  where  the  two  banks  indicated  10  and  15  days
respectively.

Nearly 90% of the credit transfers arrived within the time indicated by the executing
institution. A further 8% arrived within 3 days after the time indicated.

About  50%  of  the  beneficiary  banks  applied  a  value  date  that  was  earlier  than  the
date on which the transfer was credited to the receiver’s account. In total this applied
to  12.2%  of  transfers  received.  This  practice  appears  to  have  occurred  more
frequently with transfers that took longer to arrive than originally indicated. By value
dating the incoming transfer to a date within the time period specified by the sender's
bank,  the  banks  are  trying  to  meet  the  Directive's  requirement  that  the  receiver
should be compensated in the form of lost interest for late transfers.

15

3.7.2.2. Accuracy in relation to charges quoted:

Based  on  the  information  that  was  provided  to  the  senders,  an  average  overall
transfer  cost  of  approximately  EUR  20  would  have  been  expected.  This  is  roughly
20% lower than the actual average cost of EUR 24.09.

This divergence between the price offered in  advance of the transfer and the  actual
charges levied is due to the fact that banks did not know the cost of the beneficiary
charges in advance or that the institutions quoted only the sender bank element of the
transfer costs.

Approximately  half  of  the  senders  were  quoted  costs  within  20%  of  the  actual
amount.  In  a  further  quarter  of  the  cases  the  actual  amount  was  between  20%  and
60% higher than quoted. For the remaining senders (approximately 25%) actual costs
were more than 60% higher than the amount quoted by their bank, usually because
the beneficiary charges had not been included in the quote.

3.7.3. Cases of concern

Italy failed to transpose Article 5 into national  legislation.  The  Decree  provides  for
no specific undertaking from the institution in relation to time, commission fees and
charges.

Whilst the institutions’ undertakings regarding execution time are quite satisfactory,
this is not the case for the banks’ (binding) offers concerning charges and fees. This
deficiency  is  indeed  linked  to  the  banks’  problem  of  knowing  the  charges  of  the
receiving bank.

3.8.

Article 6 – Obligations regarding time taken

Article  6  deals  with  the  time  limit  for  executing  a  cross-border  credit  transfer.
Paragraph  1  covers  the  period  of  the  transfer  between  the  originator's  and  the
beneficiary's  "institution",  while  paragraph 2  concerns  the  relationship  between  the
beneficiary’s  institution  and  the  beneficiary.  The  first  sentence  of  each  paragraph
emphasises that, as required by the principle of contractual freedom, it is the agreed
time  limit  which  counts  above  all  else.  Only  in  the  absence  of  such  a  time  limit,
statutory  time  limits  are  introduced  by  default:  they  are,  respectively,  5  days
(originator/beneficiary's  institution)  and  1 day  (beneficiary's  institution/beneficiary's
account).

The originator will have to be compensated by his own institution if the agreed time
limit  or  the  five-days  period  allowed  for 
transfer
(originator/beneficiary's institution) is exceeded.  On  the  other  hand,  the  beneficiary
must be compensated by his institution, if the delay occurs during the second stage of
the  transfer (beneficiary's institution/beneficiary's account).  Where  the  originator  or
the beneficiary has caused the delay, no compensation is payable (Article 6(3)).

the  first  stage  of 

the 

Compensation  takes  the  form  of  interest  for  late  payment.  Wider  liability,
particularly  for  consequential  damage,  is  neither  introduced  nor  excluded  by  the
Directive;  it  will  depend  on  the  general  legislation  governing  relations  between  the
originator,  the  beneficiary  and  their  respective  institutions  (see  Article  6(4)).  The
level of interest for late payment must be calculated according to a "reference interest
rate"  (Article  2(k)).  This  rate  must  be  fixed  by  the  Member States  at  a  level

16

"representing  compensation";  in  other  words,  it  should  be  a  normal  penalty  rate,
which  may  be  a  statutory  rate  or  may  be  based  on  the  rates  charged  by  banks  for
emergency funding to cover delayed transfers.

3.8.1.

Transposition in Member States

No problems of inadequate or incomplete legal transposition into national legislation
of the Member States have been identified.

3.8.2.

Practical application of provision in Member States

Transfers took on average 2.97 days. 95.4% of transfers arrived within six working
days,  which  is  the  default  time  specified  in  the  Directive.  99.7%  of  the  transfers
arrived within 15 working days.

The  longest  average  transfer  times  were  from  Sweden  (4.61  days),  the  UK  (4.19
days) and Denmark (4.07 days). The shortest were from Ireland (1.67 days), Greece
(1.82 days) and France (1.99 days).

When  considering  the  timing  commitments  made  by  the  banks,  89.8%  of  transfers
arrived  on-time  and  98.4%  within  three  days  of  the  time  specified  by  the  sender's
bank.

In most cases the value date credited to the receiver was identical (or one day later)
with the booking date on the receiver's bank account; this was, however not always
the case. In 12.2% of cases (mainly transfers which took longer to arrive), the value
date  was  several  days  earlier  than  the  booking  date.  In  these  cases,  the  originating
bank  underestimated  the  time  it  took  for  money  to  arrive  and  the  funds  were  not
actually available for the beneficiary on the value date.

In cases where transfers were more than one day late (compared to the agreed time
limit), the senders contacted their bank to ask why the transfers had arrived late and
whether they were entitled to compensation. Banks gave a variety of responses, the
most  common  response  being  that  the  receiver  should  contact  his  bank,  as  the
sender's bank had no control over the booking/value date at which the receiver's bank
was credited. No bank offered the sender compensation for transfers that arrived late.

The matter was taken further with those institutions, where the credit transfers took
extremely  long.  One  bank  finally  paid  some  compensation  “as  a  gesture  of
goodwill”.  In  another  case,  the  sender  did  not  want  to  contact  her  bank  again
“because of the awful way they treated her with her previous follow-up”.

3.8.3. Cases of concern

Apart from singular and very specific cases, where the transfer took extremely long,
the situation concerning execution times is quite satisfactory.

However,  the  institutions’  performance  when  asked  to  pay  compensation  for  late
payments was very bad: the banks were either ignorant about their obligation to pay
compensation or unwilling to do so.

17

3.9.

Article  7  –  Obligation  to  execute  the  cross-border  transfer  in  accordance  with
instructions

The  originator's  institution,  any  intermediary  institution  and  the  beneficiary's
institution  are  obliged  to  effect  the  transfer  for  the  full  amount  (save  where  the
originator  has  specified  that  the  costs  are  to  be  borne  wholly  or  partly  by  the
beneficiary).  Thus,  the  "OUR"  option  (i.e.  all  charges  borne  by  the  originator)
becomes  the  default  rule,  while  the  other  transfer  options11  should  remain  the
exception. Accordingly, in general, any other deduction from the amount transferred
is  illegal  and  the  relevant  amounts  should  be  repaid.  This  provision  of  Directive
97/5/EC  aims  at  clarifying  the  distribution  of  charges  between  originator  and
beneficiary and bans the practice of double charging.

3.9.1.

Transposition in Member States

No problems of inadequate or incomplete legal transposition into national legislation
of the Member States have been identified.

3.9.2.

Practical application of provision in Member States

According  to  the  study,  81.7%  of  all  beneficiaries  received  the  full  amount  of  the
transferred sum. 16.2% of the beneficiaries received less than the original amount of
the  ordered  transfer,  because  charges  were  deducted  by  the  beneficiary  bank  or  an
intermediary institution.

2.0%  of  the  beneficiaries  received  even  more  than  expected.  This  was  generally
because  the  sender's  bank  sent  a  higher  amount  to  cover  charges  levied  by  the
receiver's bank. If the receiver's bank did not levy such charges, then the receiver was
actually credited with a higher amount than expected.

The  most  common  reason  why  receivers  were  charged  was  that  transfers  were  not
sent as “OUR” transfers. Some banks did not send any transfer in the “OUR”-mode
despite the originator’s orders. Some banks informed their customers that they were
unable to send “OUR” transfers. Some banks had not sent the transfers in the “OUR”
mode by default as specified in the Directive .

In  those  239  cases  where  the  beneficiary  had  been  charged,  the  sender  went  to  his
bank  to  ask  whether  the  transfer  had  been  sent  "OUR”.  The  vast  majority  of  these
transfers  had  not  been  sent  in  the  "OUR"  mode  despite  the  fact  that  they  were
obliged to do so in the absence of a different, explicit agreement. Only three banks
(representing 37 transfers) agreed to immediately re-credit the receivers’ charges.

16 sender banks (representing 42 transfers) confirmed that the transfers had been sent
in  the  "OUR"  mode  and  suggested  the  receivers  to  contact  their  banks.  On  further
enquiries, the most common receiver bank's response was that the transfer involved
had  not  been  sent  OUR,  contradicting  what  the  originator's  bank  had  told  to  the
sender.  Other  receiver  banks  claimed  they  had  not  deducted  any  charges  and
suggested that an intermediary  bank  must have  made  a further  charge.  Finally,  one

11

Particularly "SHARE", where each party bears his own costs, and “BEN”, where all charges are to be levied
from the beneficiary

18

                                                
bank  in  Germany,  one  bank  in  the  UK  and  one  bank  in  Spain  re-credited  the
receivers for all deductions.

3.9.3. Cases of concern

Although  the  situation  concerning  double  charging  has  considerably  improved,  the
provisions  of  the  Directive  which  aim  at  completely  abolishing  the  practice  of
levying charges on the beneficiary side (except on the originator’s explicit order) are
not  completely  complied  with  by  the  banking  industry.  In  analogy  to  what  has
already  been  said  under  point  1.7.3,  this  deficiency  is  linked  to  the  banks’  lack  of
knowledge about what the receiving bank will actually charge.

It  is,  however,  alarming  that  some  institutions  ignore  or  do  not  comply  with  the
obligations  to  refund  any  charges  wrongfully  deducted,  obligations  which  are  laid
down both in the Directive and the national implementing legislation.

3.10.

Article 8 – Obligations upon institutions to refund in the event of non-execution
of transfers

This Article introduces the principle of strict liability of the originator's bank to pay
refund  in  case  of  a  "lost"  transfer.  This  “money-back  guarantee”  is  limited  to  an
amount  up to  12.500  euro  and  cannot  be  abrogated  by  contract.  This  is  a  "no-fault
liability" and, therefore, an obligation not limited to error or illegal behaviour on the
part  of  the  banks  concerned;  it  suffices  for  a  credit  transfer  to  fail  to  reach  its
destination to trigger this mechanism: the originator is reimbursed by his bank, which
may  recover  the  funds  from  the  responsible  institution.  This  mechanism  saves  the
users  of  payment  systems  from  having  to  contact  a  number  of  banks  in  a  transfer
chain in order to establish which one is liable, a procedure for which the banks are
much better equipped than their customers.

Wider  liability,  particularly  for  consequential  damage,  is  neither  introduced  nor
excluded  by  the  Directive;  Art.  8  clearly  states  that  this  ‘money-back-guarantee’  is
“without  prejudice  to  any  other  claim  which  may  be  made”.  Thus,  any  sum
exceeding 12.500 euro as well as other damages resulting from the non-execution of
the  transfer  will  have  to  be  claimed  through  normal  court  proceedings  and  will
depend  on  the  general  legislation  governing  relations  between  the  originator,  the
beneficiary and their respective institutions

3.10.1. Transposition in Member States

In  the  Netherlands  there  is  a  different  limit  on  the  refund  to  that  in  the  Directive
(€12,500).  The  money-back-guarantee  equals   the  general  scope  of  the  Dutch
implementing legislation, i.e. 50.000 euro.

Under  Spanish  legislation,  an  intermediary  institution  is  subject  to  the  Article  8
obligation  to  refund  only  where  it  has  itself  'received'  the  credit  transfer  funds  (as
opposed  to  'accepted  the  cross-border  credit  transfer  order'  (as  is  provided  by  the
Directive)). Other national transposing laws refer to cases where the transfer 'did not
arrive'  (Austria),  'was  not  executed'  (Germany),  'where  the  payment  was  not
transferred' (Finland) and 'where the funds were not credited' (United Kingdom).

The  Directive  includes  no  specific  provisions  as  to  the  conditions  under  which  the
fault  of  an  intermediary  credit  institution  (e.g.  in  the  event  of  a  delay  in  a  credit

19

transfer)  will  create  liability  for  the  originating  credit  institution.  In  some  Member
States  (Germany,  United  Kingdom)  specific  provisions  exist  in  that  respect.  In
Germany, for example, the originating credit institution will be liable for the fault of
an intermediary credit institution unless the principal cause lies with the intermediary
credit institution chosen by the customer.12

Among  the  examples  of  non-execution  of  credit  transfers  set  out  in  the  Directive,
Article  8  provides  in  particular  that,  where  a  cross-border  credit  transfer  was  not
completed  because  of  non-execution  by  an  intermediary  institution  chosen  by  the
originator,  that  latter  institution  must  'as  far  as  possible'  refund  the  amount  of  the
transfer.  In  other  words,  the  Directive  does  not  provide  that  the  intermediary
institution  is  liable  vis-à-vis  the  originator.  Germany's  implementing  legislation
creates  in  addition  direct  liability  of  the  intermediary  institution  vis-à-vis  the
customer. This exceeds the protection offered to the consumer by Directive 97/5/EC.
German  law  includes  similar  provisions  providing  for  the  direct  liability  of
intermediary institutions vis-à-vis originating institutions.

3.10.2. Practical application of provision in Member States

Two  out  of  1480  transfers  executed  in  the  framework  of  the  study  for  this  report
never reached their beneficiary.

The  “money-back-guarantee”  did  not  work:  one  of  the  lost  transfers  had  not  been
refunded  to the beneficiary by  the  execution more than six  months after the  refund
was  requested  by  the  originator;  the  other  lost  transfer  has  been  –  reluctantly  –
refunded to the originator.

3.10.3. Cases of concern

Whilst  the  provision  regarding  the  “money-back-guarantee”  has  been  adequately
transposed into national legislation, the results of the study indicate that in all cases
of  lost  transfers  the  institutions  executing  these  cross-border  credit  transfers  were
either ignorant of their obligation to refund lost payments or they were unwilling to
do so.

The fact that the Dutch money-back-guarantee has a much higher threshold than in
the  other  Member  States  might  result  in  a  situation  the  implications  of  which  may
need further analysis.

3.11.

Article 9 – Situation of force majeure

This  article  specifies  that  institutions  participating  in  a  transfer  transaction  are
released  from  their  obligations  in  two  cases:  first,  when  there  is  a  suspicion  of
money-laundering and, second, in a situation of force majeure.

3.11.1. Transposition in Member States

A number of Member States have implemented the definition of “force majeure” in a
manner that clearly diverges from the text of the Directive , namely “abnormal and

12

Save where intentional or grossly negligent action is involved, or for risks specifically accepted by a credit
institution

20

                                                
unforeseeable  circumstances  beyond  the  control  of  the  person  pledging  force
majeure, the consequences of which would have been unavoidable despite all efforts
to the contrary”. In countries with diverging provisions (Italy, Portugal and Sweden),
the level of protection offered to consumers of cross-border credit transfer services is
lower or higher than that envisaged by Community law. In Germany, for instance, an
obligation  to  refund  is  imposed  even  where  the  amount  of  the  credit  transfer  is  no
longer available.

Certain Member States (Belgium, Finland, Greece, Ireland, Portugal, Sweden and the
United  Kingdom)  have  expressly  referred  in  their  implementing  legislation  to  the
Money Laundering Directive (Directive 91/308/EEC) or equivalent provisions, when
implementing Article 9 of Directive 97/5/EC.  In two cases  (Finland  and the United
Kingdom), implementing provisions specifically  provide  for  a  limitation in  liability
where  an  institution  has  not  complied  with  the  provisions  of  Directive  97/5/EC
because of money laundering concerns. In one Member State (Sweden), institutions
may take longer to execute the cross-border transfer.

Other Member States (Austria, Denmark,  France, Germany,  Italy,  Luxembourg, the
Netherlands  and Spain) make no specific  reference to money laundering legislation
in  their  legislation  implementing  Article  9.  In  practice,  the  absence  of  reference  to
national  money  laundering  legislation  does  not  give  rise  to  legal  issues  and  is  not
deemed to constitute inadequate implementation of Directive 97/5/EC.

the  Member  States.
Directive  91/308/EEC  has  been  fully  implemented  in 
Notwithstanding the absence of express reference to Directive 91/308/EEC in certain
implementing legislation for Directive 97/5/EC, its terms are mandatory and a matter
of  public  policy.  Consequently,  where  a  failure  to  fulfil  a  duty  under  Directive
97/5/EC  arose  because  of  a  legitimate  suspicion  that  a  cross-border  credit  transfer
was,  in  reality,  a  money  laundering  transaction,  the  institution  would,  most  likely,
invoke, in its defence, the public policy basis of Directive 91/308/EEC. Whether the
defence  would  succeed  would  depend  on  the  particular  facts,  circumstances  and
national  provisions  invoked,  since  compliance  with  money  laundering  rules  should
not become a general pretext for avoiding obligations under Directive 97/5/EC.

3.11.2. Practical application of provision in Member States

No problems regarding the application of Art. 9 of the Directive have been reported
in the Member States.

3.11.3. Cases of concern

None.

3.12.

Article 10 – Settlement of Disputes

The  Directive  determines  certain  requirements  for  the  execution  of  cross-border
credit transfers. If bank customers can enforce these standards only by way of court
procedures, the Directive would not improve the situation for them; hardly anybody
would go to court for a complaint (e.g. concerning a case of double charging of 20
euro).

Article 10 of Directive 97/5/EC aims to give to customers an efficient tool to claim
the rights under this Directive, by obliging Member States to “ensure that there are

21

adequate  and  effective  complaints  and  redress  procedures  for  the  settlement  of
disputes” between customers and credit institutions. Existing procedures can be used,
where appropriate.

Procedures  should  be  adequate  and  effective:  complaining  to  such  an  alternative
dispute settlement body about cross-border credit transfers should be more expedient
and  less  costly  for  the  customers  than  to  go  to  court,  i.e.  the  procedure  in  place
should really be an alternative.

3.12.1. Transposition in Member States

Practice differs from Member State to Member State as to the procedures applicable
to  complaints  and  redress  schemes.  These  differences  concern  the  access  to  the
complaints  and  redress  scheme  (only  upon  exhaustion  of  existing  remedies  or
whether  and  under  what  conditions  direct  access  is  available),  the  formalities  for
making a complaint, the impact  (if  any)  on separate legal  proceedings, whether the
decisions are binding or non-binding, etc. These differences do not, however, cause
any  problem,  as  long  as  the  procedures  as  such  are  “adequate  and  effective”.  The
details of the different schemes in the Member States are given in Annex 3.

When  implementing  Art.  10  of  the  Directive,  Member  States  have  mostly  used
already  existing  procedures for banking or  financial  services  in  general.  They  have
not  established  dedicated  redress  or  complaint  schemes  specific  to  cross-border
credit  transfers  with  the  exception  of  Italy,  where  a  Decree13  provides  for  the
establishment of particular schemes to deal with the settlement of disputes regarding
cross-border  credit  transfers.  The  German  scheme  is  also,  in  part,  dedicated
specifically  to  cross-border  transfers  (as  well  as  covering  settlement  finality  in
payment and securities transactions (Directive 98/26/EC)).

Consumers  are  represented  only  in  a  minority  of  the  redress/complaint  schemes
which have been implemented under Article 10.

France had originally continued to rely on existing schemes set up by the individual
banks;  this  did  not,  however,  cover  all  institutions  executing  cross-border  credit
transfers.  France  was,  therefore,  late  in  implementation.  In  the  meantime,  the  “loi
Murcef”14 will make mediation obligatory in conflicts between consumers and credit
institutions, including cross-border transfer cases.

Austria  has  not  yet  established  a  redress  scheme  but  has  only  appointed  a  working
group to set up a such scheme. Austria is, therefore, late in implementation.

Portugal  has  not  yet  established  a  banking  ombudsman  scheme.  The  implementing
legislation  allows  parties  to  refer  to  arbitration,  but,  in  practice,  this  is  often
impractical due to the high costs which are likely to be involved. Existing Portuguese
ombudsman schemes for  financial  services have  only  limited  geographical  areas  of
competence  and  can  deal  with  claims  of  low  value.  Portugal  is,  therefore,  late  in
implementation.

13 Ministerial  Decree  No.  456  of  13  December  2001,  implementing  into  Italian  law  Art.  10  of  Directive

97/5/EC (OJ of 3 January 2002)

14 Law No. 2001-1168 of 11 December 2001 (OJ of 12 December 2001)

22

                                                
3.12.2. Practical application of provision in Member States

Until  December  2001,  very  few  disputes  concerning  cross-border  credit  transfers
have been brought before the national complaint and redress schemes. This is partly
due to the fact that customers appear reluctant to take matters beyond several verbal
or written complaints to the bank. In many  cases the disputed amount is rather low
compared  to  the  administrative  time  and  charges  involved;  this  prevents  customers
from pursuing further action. Many customers seem also to be afraid to “upset” their
banks, or to damage their future banking relationship.

On the other hand, customers very rarely know about the existence of complaint and
redress  schemes;  the  institutions’  customer  information  in  this  respect  is  virtually
non-existent (cf. point 3.5.2).

3.12.3. Cases of concern

The lack of existence of appropriate redress procedures in Austria and Portugal is a
matter of major concern.

There is a general lack of information about the existence of complaint and redress
schemes:  when  customers  do  not  know  about  the  possibilities  of  enforcing  their
rights given to them by the Directive and the national implementing laws, they do not
know  how  to  react  in  case  of  any  malfunctioning  or  misapplication  of  the  relevant
provisions. Mostly they are unlikely to address their complaints, which are normally
low-value  disputes,  to  a  court.  However,  better  information  about  rights  and
procedures provided for by the Directive should help to enhance competition and to
improve the presently unsatisfactory situation.

3.13. Other issues

3.13.1. Sanctions

The  Directive  contains  no  specific  obligation  on  Member  States  to  provide  for
sanctions for failure to comply with the terms of national implementing legislation. It
should  be  noted,  however,  that  the  obligation  to  provide  for  appropriate  sanctions
does not need to be included in a EU-legal text. A judgement of the European Court
of  Justice15  already  established  that  Member  States  were  obliged  to  provide  for
sanctions  in  their  transposing  laws,  regardless  of  whether  sanctions  were  explicitly
mentioned in the original Directive or not.

Only  few  Member  States,  such  as  Austria,  the  United  Kingdom  and  Denmark  did
indeed  include  a  specific  reference  to  sanctions  in  their  legislation.  In  addition,  in
relation  to  specific  customer  undertakings,  Austrian  legislation  provides  another
form  of  “sanction”:  where  specific  undertakings  requested  by  the  customer  are  not
complied with, Austrian credit institutions may not charge fees/commissions for the
execution of the credit transfer.

Another  important  question  (arising  from  Belgian  legislation)  is  whether  sanctions
should  be  imposed  for  failure  to  comply  with  all  or  only  some  of  the  obligations
derived from Directive 97/5/EC. In Belgium, by way of illustration, no penalties are

15 C-354/99 of 18 October 2001

23

                                                
expressly imposed by the implementing legislation on a credit institution's failure to
provide information to customers subsequent to a cross-border credit transfer.

Some Member States (e.g. Denmark) make reference to criminal sanctions imposed
by other legislation not specific to cross-border credit transfers. For obvious reasons,
provisions relating to criminal sanctions may not be found in Community law and do
not appear in Directive 97/5/EC.

3.13.2. Right to Cancel or Terminate Transfers

The Directive is silent as to the right of  credit institutions to  cancel credit  transfers
that  have  been  properly  requested  by  a  customer.  In  Germany,  specific  provisions
have been included to deal with this eventuality.

German legislation also includes detailed provisions allowing the customer to cancel
a requested credit transfer and a right for both the credit institution and the customer
to terminate a credit transfer.

4.

CONCLUSION

4.1.

Assessment of the transposition in Member States

The  deadline  for  transposition  of  Directive  97/5/EC  was  August  14,  1999.  Most
Member States met that deadline and all have implemented the Directive since.

Certain  differences  exist  between  national  regimes  and  the  regime  introduced  by
Directive 97/5/EC. These have been identified in Section 3 above.

4.1.1. Main differences between national regimes and Directive 97/5/EC

4.1.1.1. Article 2 - definitions

Differences  concern  the  omission  of  definitions  of  Article  2  of  the  Directive  ,
or  the  use  of  definitions  different  from  those  in  the  Directive.  Most  of  these
omissions  or  differences  should  not  result  in  inadequate  implementation.  The
different definition of 'date of acceptance' in Spain may give rise to difficulties; here
acceptance is presumed on the business day 'following' the order, and not on the date
when all conditions of the order are fulfilled. The calculation for the execution times
thus starts only one day after the time foreseen by the Directive.

4.1.1.2. Article 3 – provision of information prior to a cross-border credit transfer

A number of issues associated with the provision of information prior to a request
for a cross-border credit transfer, under Article 3 of Directive 97/5/EC, were also
identified.  These  concern  mainly  Austria:  Austrian  legislation  does  not  oblige  to
provide information in a 'readily comprehensible form', there is no reference to 'value
date'  and  information  regarding  complaints  and  redress  schemes  (reflecting  the
absence of such schemes in Austria).

24

4.1.1.3. Article 4 – Provision of information after a cross-border credit transfer

Subsequent  information  duties  under  Article  4  of  Directive  97/5/EC  have  not
been  fully  implemented  in  Austria,  Denmark  and  Ireland.  In  each  case,  there  is  an
omission  or  limitation  of  rights  which  reflects  inadequate  transposition  and  which
could have a material effect, for instance the partial or inadequate implementation by
Austria  and  Ireland  of  the  information  requirement  for  clear  information  in  writing
including where appropriate by electronic means (in the case of Denmark, only  the
reference to 'where appropriate' has been omitted and is probably de minimis).

4.1.1.4. Banks' undertakings in relation to requests for cross-border credit transfers Article 5

Inadequate  implementation  by  Italy:  notwithstanding  the  general  obligation  under
Italian  law  to  provide  information  prior  to  transfer,  the  Italian  implementing
legislation fails to provide that the institution will be bound by undertakings it gives
(if any) in relation to time, commission fees and charges.

4.1.1.5. Article 9 “Force majeure”

With  regard  to  money  laundering,  it  should  be  noted  that  several  Member  States
have not made specific reference to Directive 91/308/EEC,  when implementing the
force  majeure  provisions  of  Article  9  of  Directive  97/5/EC.  Institutions  caught
between  fulfilment  of  duties  under  national  provisions  implementing  Directive
97/5/EC  and  national  provisions  implementing  Directive  91/308/EEC  are  likely  to
give precedence to money laundering compliance. This would, in turn, provide them
with a public-policy orientated defence in the event of a claim under the cross-border
credit transfer provisions. This issue is discussed in section 2.6.5 above.

4.1.1.6. Article 10 “Complaints and redress procedures”

Three Member States do not appear to have implemented Article 10 adequately i.e.
by  ensuring  that  there  are  “adequate  and  effective  complaints  and  redress
procedures”, as follows:

(cid:1)  France, which continues with individual schemes. This situation has, however, in
the  meantime  been  remedied  by  the  adoption  of  the  “loi  Murcef”,  which  will
make mediation obligatory in conflicts between consumers and credit institutions.

(cid:1)  Austria has simply appointed a working group to set up a scheme. This does not

constitute adequate implementation.

(cid:1)  Portugal  has  general  arbitration  schemes,  but,  given  the  difficulties  involved  in
arbitrating  disputes  which  are  often  for  relatively  modest  sums,  in  effect  has  no
scheme  competent  to  hear  complaints  arising  from  cross-border  credit  transfers
under  Directive  97/5/EC.  The  scheme  provisionally  notified  to  deal  with
complaints  stemming  from  cross-border  credit  transfers  is  only  competent  for
arbitration and mediation in Lisbon.

25

4.2.

Assessment of the application of the provisions in the Member States

4.2.1.

Provision of information before and after a cross-border transfer:

The  institutions’  performance  concerning  the  provision  of  information  was  not
satisfactory:

(cid:1)  Only 16 out of the 40 senders were provided with a brochure or some other form
of printed information in advance of the transfers being carried out. The printed
information  that  was  provided  gave  information  on  costs,  but  generally  lacked
information  on  timing,  exchange  rates,  value  dates  and  redress  procedures,  as
specified in the Directive.

(cid:1)  The  information  provided  to  senders  and  receivers  subsequent  to  the  transfers
being carried out was generally good. The most frequent omission was that fewer
than half of receivers were quoted the original amount of the transfer.

4.2.2.

Execution times

The  institutions  performance  concerning  execution  times  was  on  average  well
within the limits of the Directive: 95.4% of transfers arrived within six working days
and 99.7% arrived within 15 working days. Transfers took an average of 2.97 days.
This constitutes a significant reduction from prior studies.

4.2.3. Obligations to compensate for late payments

However, the obligation to compensate for late payments was generally not met by
the  institutions:  no  bank  offered  the  sender  compensation  for  transfers  that  arrived
late. When asked to pay compensation, institutions generally ignored or denied any
obligation to compensate for late payments.

4.2.4. Obligation to execute the cross-border transfer in accordance with instructions

The  institutions'  performance  concerning  the  distribution  of  charges  had  also
improved  compared  to  former  studies.  However,  in  16.2%  of  the  transfers,
unexpected  receiver  deductions,  mostly  caused  by  double  charging,  still  occurred.
The  vast  majority  of  these  transfers  had  not  been  sent  in  the  “OUR-mode”  (i.e.  all
charges to be borne by the originators).

4.2.5.

Refund of unlawfully deducted charges

Generally,  customers  had  to  insist  very  hard  to  receive  refund  of  unlawfully
deducted charges. Whilst  some of the banks  involved in double charging rectified
the affected transfers by re-crediting the receivers’ charges, others did not assist their
customers  in  any  way  as  they  are  obliged  to  do.  Instead,  they  claimed  that  the
receiver or  intermediary  banks  had  taken  the  charges.  Very  often,  customers  “gave
up” following up their case because of the impolite treatment by the institutions.

4.2.6.

“Money-back guarantee”

The  banks’  performance  concerning  the  “money-back  guarantee”  was  not
satisfactory. The two cases in the study which should have triggered this money back
guarantee, have not been handled as envisaged in the Directive. One missing transfer

26

has  never  been  refunded,  the  other  one  was  only  reluctantly  refunded  after  several
months and “as a gesture of good-will”.

4.3.

Proposals for the revision of the Directive

As  already  announced  by  Commissioner  Bolkestein  vis-à-vis  the  European
Parliament in autumn 2000 (discussion of Peijs report16 in the Plenary Session), the
Commission intends to propose to shorten the default maximum execution time from
presently  6  bank  working  days  to  a  much  shorter  period.  Given  the  technical
possibilities  of  an  improved  infrastructure,  such  shorter  delays  –  which  would  be
more in line with current practices at national level –seem only logical. Taking into
account the present average delay of 2.97 days for a cross-border credit transfer, the
shortening of delays should not cause too many difficulties to the banking industry.

Furthermore,  the  Commission  promised  to  raise  the  threshold  of  the  "money-back
guarantee" to €50.000, in order to align it with the general scope of the Directive.

Both measures are destined to further develop the Internal Market for retail payments
and  to  align  conditions  of  national  and  cross-border  payments.  The  European
Parliament  already  signalled  that  it  will  support  the  Commission  on  these
amendments to the Directive 97/5/EC in the European Parliament Resolution on the
Commission’s Communication on Retail Payments in the Single Market17 .

In addition to that, some further concerns have been identified in this report, which
need to be addressed.

However, the Commission does not consider it appropriate to propose only a revision
of the Directive for the few issues identified in this report. There are several further
reasons  to  review  the  EU  legislation  governing  payments  in  the  Internal  Market  in
general in order to truly achieve a Single Payment Area within the European Union.
Precedence should be given to a wide consultation on a coherent and comprehensive
legal  framework  going  beyond  some  isolated  patchwork  proposals.  The  main
additional justifications for such an initiative are:

(cid:1)  The  adoption  of  the  “Regulation  on  Cross-Border  Payments  in  euro”18  has
determined  an  essential  element  of  how  payment  services  (nationally  and  cross-
border) have to be offered to customers: price discriminations are illegal and the
Internal  Market  for  payments  has  to  be  considered  as  a  “domestic”  market.  The
directive,  however,  imposes  on  banks  certain  requirements  for  cross-border
transfers which do not apply for domestic transfers. An example of this is that the
directive  establishes  “OUR  transfers”  as  the  default  norm,  in  cases  where  no
specific  instructions  are  given  by  the  sender;  however,  in  most,  if  not  in  all
Member States, the “OUR option” is not a frequently used way to make domestic
transfers. Therefore, the Commission should further investigate how to reconcile
this and to propose a coherent payment option for the internal market.

16 European  Parliament  Resolution  on  the  Commission  Communication  to  the  Council  and  the  European
Parliament  on  retail  Payments  in  the  Single  Market  of  26  October  2000;  COM(2000)  36-C5-0103/2000-
2000/2018 (COS)
17 COM(2000) 36 final
18 Reg. 2560/2001 of 19 December 2002 (OJ 344 of 28 December 2001, p.13)

27

                                                
(cid:1)  A  study  completed  in  2001  on  the  transposition  and  application  of  the
“Recommendation on Electronic Payment Instruments19” concludes that there are
serious deficiencies which need to be addressed. The Recommendation states that,
if the Commission finds the implementation unsatisfactory, it  intends  to propose
appropriate binding legislation.

(cid:1)  The  Commission  will  come  forward  with  proposals  relating  to  the  issue  of
“refunds” covered in the Recommendation 97/489 and other EU legislative acts.

(cid:1)  Payment  instruments  and  payment  systems  are  to  a  large  extent  still  subject  to
diverging  national  rules.  This  situation  can  constitute  an  obstacle  to  an  efficient
Single  Payment  Area  in  the  Internal  Market  resulting  in  inefficiencies  or
hindering the integration of the necessary infrastructure and further consolidation
with  a  view  to  lowering  the  costs  of  transactions.  A  strategy  to  target  a  wider
payment  transaction  market  than  the  national  one  could  lead  to  “collaborative
sourcing” and “economies of scale”. There is also the phenomena of outsourcing
and  concentration  of  payment  business  in  so-called  “transaction  factories”.
Furthermore new players are looking for access to the payment markets and which
–  as  non-banks  –  frequently  encounter  “regulatory  obstacles”  or  “legal
uncertainty”. These issues need to be analysed.

(cid:1)  The  developments  in  information  technology  (IT)  have  an  important  impact  on
the  development  of  payment  instruments,  payment  infrastructures  and  payment
markets.  The  considerable  costs  of  IT  for  this  transaction  business  require  well
reasoned  strategic  decisions  which  are  to  be  taken  when  considering  the
developments  of  the  infrastructure  environment  (standards,  technical  platforms
etc) and possibilities for co-operation. E-money institutions and the mushrooming
of proposals for new electronic payment instruments are phenomena for which the
consequences on the legal framework need to be examined.

(cid:1)  Notably  as  a  response  to  the  Regulation  on  Cross-Border  Payments  in  euro,
European  banks  recently  launched  a  common  vision  of  "Euroland  -  our  Single
Payment Area". It calls for joining forces for the benefit of European consumers,
industry  and  banks  and  includes  the  request  for  a  commitment  by  regulators  to
deliver  their  part.  Their  "Blueprint"  on  the  Single  European  Payment  Area
(SEPA)  is  expected  to  contain  a  range  of  legal  prerequisites  or  desirable
developments  addressed  to  public  authorities,  incl.  European  institutions.  The
Commission  intends  to  address  these  ideas  in  the  discussion  on  this  legal
framework once they are known.

The Commission's services - in the spirit of the Communication on Better Regulation
-  have  already  widely  circulated  in  an  informal  discussion  document  in  order  to
collect  ideas  and  suggestions  for  such  a  possible  framework.  On  the  basis  of  those
contributions the Commission will establish a Consultative Paper which will present
its  assessment on possible future provisions  for a  legislative proposal  afterwards  to
the Council and Parliament in 2003.

19 Rec. 97/489 of 30 July 1997 (OJ L 208 of 2 August 1997, p. 52)

28

                                                
ANNEX 1 – National Implementing Measures – State of play on 27 September 2002

Table 1: Table of national implementation measures (by title and with additional details
as available)

MEMBER STATE

Austria

Belgium

IMPLEMENTING LEGISLATION

Federal  Act  on  Cross-Border  Credit  Transfers,  N°  123:  Bundesgesetz  über
grenzüberschreitende  Überweisungen,  adopted  by  Parliament  and  published  on  July  22,
1999 (Überweisungsgesetz – Bundesgesetzblatt, Part I, page 159).

Law  on  Cross-Border  Money  Transfers:  Loi  relative  aux  virements  d'argent
transfrontaliers,  adopted  on  January  9,  2000,  published  and  supplemented  by  Royal
Decree amending Royal Decree of March 23, 1995 on price indications for homogenous
financial services.

Denmark

Act  on  Cross-Border  Credit  Transfers,  N°  237:  Lov  om  graenseoverskridende
pengeoverforsler of April 21, 1999.

Finland

France

Law on Credit Transfers, N° 821/1999: Tilisiirtolaki, adopted on July 28, 1999, published
on August 4, 1999.

Law on savings and financial security, N° 99-532: Loi relative à l'épargne et à la sécurité
financière  (Section  78,  Part  II,  Chapter  V),  published  on  June  29,  1999  (JORF,  page
9507),  supplemented  by  implementing  Regulation  n°99-09,  published  on  July  27,  1999
(JORF, pages 11160-11161), with corrigendum on August 21, 1999 (JORF, pages 12559-
12560), and codified in the French Monetary and Financial Code as Section L 133-1.

Germany

Act  on  Bank  Transfers:  Überweisungsgesetz,  adopted  on 
(Überweisungsgesetz, BGBI, Teil IS. 1642).

July  21,  1999

Greece

Ireland

Italy

Presidential Decree 33/2000, adopted on February 8, 2000 and published on February 16,
2000 (Gazette, N°. 27, Vol. A).

Statutory  Instrument  N°.  231:  The  European  Communities  (Cross-Border  Credit
Transfers) Regulations 1999.

Legislative  Decree  N°.  253:  Attuazione  della  direttiva  97/5/CEE  sui  bonifici
transfrontalieri,  adopted  on  July  28,  2000,  published  on  September  11,  2000  (Gazzetta
Ufficiale della Repubblica Italiana, Serie General, N° 212).

Luxembourg

Law adopted on April 29, 1999, amending the law of April 5, 1993 on the financial sector.
Publication in the Mémorial of May 12, 1999. Entry into force on May 16, 1999

The Netherlands

Act for Cross Border Transactions: Wet grensoverschrijdende betaaldiensten, adopted in
October 1998 and published on November 12, 1998 (Gazette 686/1998), implemented by
Royal Decree of July 28, 1999 (Stb. 1999, 341).

Portugal

Spain

Law-Decree  41/2000  of  March  17,  2000:  Decreto-Lei  nº  41/2000  de  17  de  Março,
published on March 17, 2000 (Diario da republica, Serie A, N° 65, page 1022).

Act 9/1999: Ley 9/1999, de 12 de abril, por la que se regula el régimen jurídico de las
transferencias  entre  estados  miembros  de  la  uníon  Europea,  adopted  on  April  12,  1999
and  published  on  April  13,  1999  (Gazette  N°.  88,  page  13653),  supplemented  by
Ministerial Order of November 16, 2000: Orden de 16 de noviembre de desarrollo de la
Ley 9/1999, de 12 de abril por la que se regula el régimen jurídico de las transferencias
entre Estados Miembros de la Unión Europea así como otras disposiciones en materia de
gestión de transferencias en general.

29

MEMBER STATE

Sweden

IMPLEMENTING LEGISLATION

Law  SFS  No.  1999:268  on  credit  transfers  within  the  European  Union:  Lag  om
betalningsöverföringar inom Europeiska ekonomiska samarbetsområdet, adopted on May
12, 1999 and published on June 1, 1999.

United Kingdom

Statutory  Instrument  N°.  1876:  The  Cross-Border  Credit  Transfers  Regulations  1999,
made on June 30, 1999.

Table 2: Implementing Legislation (by date of implementation):

MEMBER STATE

DATE OF
IMPLEMENTATION

LEGAL DEADLINE
(14 AUGUST 1999)

POLITICAL UNDERTAKING
(1 JANUARY 1999)

Austria

August 13, 1999

Belgium

February 9, 2000

Denmark

April 21, 1999

Finland

August 14, 1999

France

August 14, 1999

Germany

August 14, 1999

Greece

February 8, 200021

Ireland

August 14, 1999

Italy

September 26, 200022

Yes

No20

Yes

Yes

Yes

Yes

No

Yes

No

No

No

No

No

No

No

No

No

No

20 Although it is worth noting that prior to the entry into force of Belgian implementing legislation, the Belgian
Association  of  Banks  issued  advice  to  its  members  that  they  should  apply  the  provisions  of  Directive
97/5/EC, in advance of a formal, legally binding obligation

21 The situation in Greece is more complicated than in other Member States. Greek implementing legislation
was adopted on February 8, 2000, but is expressly stated to have retroactive effect, and to 'have entered into
force' on August 14, 1999. Viewed correctly, this remains a failure by Greece to comply with its obligation
to implement Directive 97/5/EC by the statutory deadline of August 14, 1999

22 This is the date of entry into force for the main body of Italian implementing legislation. Certain exceptions
exist to this date of implementation (see  further at Section 9  of  Part  II  of  this  Report). These  include,  for
example, the date of entry into force of provisions introducing obligations upon credit institutions to provide
information  to  consumers  of  cross-border  credit  transfer  services.  The  date  of  entry  into  force  of  these
provisions is the later date of October 12, 2000

30

                                                
MEMBER STATE

DATE OF
IMPLEMENTATION

LEGAL DEADLINE
(14 AUGUST 1999)

POLITICAL UNDERTAKING
(1 JANUARY 1999)

Luxembourg

May 16, 1999

The Netherlands

August 14, 1999

Portugal

March 23, 2000

Spain

May 3, 1999

Sweden

August 14, 1999

United Kingdom

August 14, 1999

Yes

Yes

No

Yes

Yes

Yes

No

No

No

No

No

No

31

ANNEX 2 - National complaints and redress schemes – Updated on 27 September 2002

Austria:

Arbeitskreis "Ombudsstellen der österreichischen Kreditwirtschaft"
Wirtschaftskammer Österreich
Wiedner Haupstrase 63
A-1045 Wien
Tel. +43.1.501.05.31.32
Fax. +43.1.501.05.272
e-mail: BSBV@WKOESK.WK.OR.AT

Belgium:

Association Belge des Banques (ABB)
Square de Meêus 35
B – 1040 Bruxelles
Tel. +32.2.507.68.11
Fax +32.2.507.69.79
email: ombudsman@abb.bvb.be

Médiateur auprès de la Poste
Dienst Ombudsman De Post
W.T.C. Tour II
Chaussée d'Anvers/Antwerpsesteenweg 59
B - 1000 Bruxelles/Brussel
Tel. +32.2.204.81.00 (FR)
Tel. +32.2.204.82.00 (NL)
Tel. +32.2.204.83.00 (DE)
Fax +32.2.204.84.00

Denmark:

Pengeinstitutankenævnet
Østerbrogade 64, 4
DK - 2100 København Ø
Tel. +45.35.43.63.33
Fax +45.35.43.71.04

Finland:

Advisory office for Bank Consumers
Museokatu 8 A 7
FIN - 00100 Helsinki
Tel. +358.9.4056.1230
Fax +358.9.4056.1235
e-mail: pankkialan.asiakasneuvonta@rahoitusalankl.fi

32

Consumer Complaint Board
Box 306
Kaikukatu 3
FIN - 00531 Helsinki
Tel. +358.9.7726.7900
Fax +358.9.753.4880
e-mail: kirjaamo@kuluttajavl.fi

France:

Normally Mediators are set up by individual banks – the French Banking Association can
help to identify the right scheme.

Association Française des Banques
18 rue La Fayette
75009 Paris
Tel: +33.1.48.00.52.52
Fax: +33.1.42.46.76.40

Germany:

Deutsche Bundesbank
Schlichtungsstelle
Postfach 10 06 02
D - 60006 Frankfurt am Main
Tel. +49.69.9566-40.50
Fax +49.69.9566-40.56
email: schlichtung@bundesbank.de

Bundesverband Deutscher Banken
Ombudsmann
Postfach 040307
D - 10062 Berlin
Tel: +49 30 16633161 (or 62)
Fax: +49 30 16633169
email: ombudsmann@bdb.de

Bundesverband Öffentlicher Banken
Ombudsmannsystem für den grenzüberschreitenden Überweisungsverkher
Postfach 110272
D - 10832 Berlin
Tel: +49 30 81920
Fax: +49 30 8192222
email: Postmaster@voeb.de

33

Greece:

Commission for Consumer's Protection of Public Enterprises and Organisations
Presided by the Secretary General of Commerce
20, Caningos Str.
GR - 101 81 Athens
Tel: + 301 383.79.82
Tel. + 301 384.17.73
Fax: + 301 382.96.40

Hellenic Banking Ombudsman
12-14 Karagiorgi Servias Street
GR - 105 52 Athens
Tel. +30.1.33.76.700
Fax +30.1.32.38.821
e-mail: contact@bank-omb.gr

Ireland:

The Ombudsman for the Credit Institutions
8 Adelaide Court
IRL - Dublin 8
Tel. +353.1.478.37.55
Fax +353.1.478.01.57

Italy:

Ombudsman Bancario
Via delle Botteghe Oscure 46
I - 00186 Roma
Tel. +39.06.67.67.353
Fax +39.06.67.67.400
e-mail: abi@abi.it

Luxembourg:

Commission de Surveillance du Secteur Financier (CSSF)
110, Route d'Arlon
L - 2991 Luxembourg
Tel. +352.26.251.203
Fax: +352.26.251.601
e-mail: banques@cssf.lu , direction@cssf.lu

Netherlands:

Stichting Geschillencommissie Bankzaken
Surinamstraat 24
NL - 2585 GJ 's Gravenhage
Tel. +31.70.310.53.10
Fax +31.70.365.88.14

34

Portugal:

A special Banking Ombudsman will be created.
Until then, complaints could be addressed to:
Centro de Arbitragem de Conflitos de Consumo
Mercado Chão de Loureiro (1st floor)
Largo do Chão do Loureiro
P - 1100 Lisboa
Tel. +351.1.888.36.23
Fax +351.1.888.37.67
e-mail: lis-arbitragem@ip.pt

Spain:

Banco de España
Servicio Jurídico / Sevicio de Reclamaciones
Alcalá, 50
E - 28014 Madrid
Tel. +34.91.338.57.58
Fax +34.91.338.65.22

Sweden:

The National Board for Consumer Complaints
P.O. Box 174
S - 101 23 Stockholm
Tel. +46.8.783.17.00
Fax +46.8.783.17.01
e-mail: staffan.lind@arn.se

United Kingdom

Financial Ombudsman Service
South Quay Plaza
183, Marsh Wall
London E14 9SR
Tel. +44.207.942.0942
Fax +44.207.942.0943
e-mail: enquiries@financial-ombudsman.org.uk

EFTA-countries

Iceland:

Customer Complaint Committee
c/o Financial Supervisory Authority
Suðurlandsbraut 32
IS-108 Reykjavík
Tel.: (354) 525-2700
Fax: (354) 525-2727
e-mail: urskfjarm@fme.is

35

Norway:

The Norwegian Banking Complaints Board
Universitetsgaten 8
Post Box 6855, St. Olavs Plass
N - 0130 OSLO
Tel. +47.22.20.30.14
Fax +47.22.20.31.90
e-mail: per.fiskerud@bankklagenemnda.no

Liechtenstein:

Financial Services Authority
Herrengasse 8
FL-9490 Vaduz
Principality of Liechtenstein
Tel.:+423.236.62.21
Fax: +423.236.62.24
e-mail: isolde.sigmeth@afd.llv.li

36