Opinion of the European Central Bank of 30 November 2010 on the ratification or implementation of a Postal Payment Services Agreement (CON/2010/85)
Date: 2010-11-30
Institutions: European Central Bank
Subjects: legal basis, payment system

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 30 November 2010 

on the ratification or implementation of a Postal Payment Services Agreement 

(CON/2010/85) 

Introduction and legal basis 

Nineteen Member States1 agreed to sign the Postal Payment Services Agreement of 12 August 2008, as 
drawn  up  by  the  24th  Universal  Postal  Congress  (hereinafter  the  ‘Agreement’).  Thus  far,  the  European 

Central Bank (ECB) has not been consulted on any of the national draft legislative provisions ratifying or 

implementing  the  Agreement.  Although  some  of  the  affected  Member  States  have  already  ratified  the 

Agreement, it still needs to be ratified by most of them. 

The ECB’s competence to deliver an opinion is based on Articles 127(4) and 282(5) of the Treaty on the 

Functioning  of  the  European  Union  (TFEU)  and  the  second  indent  of  Article  2(1)  of  Council  Decision 

98/415/EC  of  29 June 1998  on  the  consultation  of  the  European  Central  Bank  by  national  authorities 
regarding draft legislative provisions2, as the Agreement deals with cross-border payment instruments. 

In accordance with the first sentence of Article 17.5 of the Rules of Procedure of the European Central 

Bank,  the  Governing  Council  has  adopted  this  opinion.  It  is  addressed  to  the  competent  national 

authorities of the 19 Member States that agreed to sign the Agreement (hereinafter the ‘relevant Member 

States’). The ECB anticipates that the draft legislative provisions ratifying the Agreement will be almost 

identical in the relevant Member States. For this reason, the ECB does not expect to be consulted on any 

draft legislative provisions that are addressed in this own-initiative opinion. The ECB reserves the right to 

make  additional  comments  on  specific  national  draft  legislative  provisions  which  go  beyond  the  mere 

ratification of the Agreement, on which the ECB may be consulted separately. 

1. 

Purpose of the Agreement  

1.1  The Agreement obliges signatories to ensure, using best efforts, that at least one of the following 

four  postal  payment  services  is  provided  in  their  territories:  money  order  in  cash,  outpayment 

money order, inpayment money order or postal transfer. The Agreement contains substantive rules 

which  apply  to  paper-based  postal  money  orders  as  well  as  to  non  paper-based  postal  payment 

orders,  such  as  orders  forwarded  by  electronic  means  or  by  any  other  technical  means.  These 

1  

2  

Belgium,  Bulgaria,  Czech  Republic,  Germany,  Greece,  Spain,  France,  Italy,  Cyprus,  Latvia,  Lithuania,  Luxembourg, 
Malta, Austria, Poland, Portugal, Romania, Slovenia, Slovakia. 
OJ L 189, 3.7.1998, p. 42. 

 
 
 
 
                                                 
substantive  rules  address  issues  such  as  electronic  data-interchange,  the  processing  of  postal 

payment orders, inquiries and the liability regime.  

1.2  The Agreement is accompanied by regulations, as revised by the Postal Operations Council in 2008 

and 2009, which set out how the Agreement is to be implemented. 

2. 

General observations 

2.1  The ECB notes that there is some overlap  between the Agreement and Directive 2007/64/EC3 on 

key  legal  points,  such  as  the  liability  of  postal  payment  services  providers  or  the  moment  of 

irrevocability of a postal payment order. 

2.2 

In this context, when signing the Acts adopted by the 24th Universal Postal Congress, including the 

Agreement, the relevant Member States made a Declaration stating that their countries will apply 

the  Acts  adopted  by  the  Congress  in  accordance  with  their  obligations  pursuant  to  the  Treaty 

establishing the European Community and the General Agreement on Tariffs and Trade (GATT) of 

the  World  Trade  Organization.  The  wording  of  this  Declaration  is  in  line  with  the  wording  of 

Article 4.3 of the Treaty on European Union which states, inter alia, that, ‘The Member States shall 

take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising 

out  of  the  Treaties  or  resulting  from  the  acts  of  the  institutions  of  the  Union.’  and  that  ‘Member 

States  shall  …  refrain  from  any  measure  which  could  jeopardise  the  attainment  of  the  Union’s 

objectives’.  

2.3  The  ECB  is  of  the  view  that the  relevant  Member  States  that  have  signed  the  Declaration  are 

reaffirming  their  obligation  to  apply  any  provisions  of  the  Agreement  in  accordance  with  their 

obligations  under  the  Treaties.  This  would  include  obligations  stemming  from  secondary 

legislation, such as Directive 2007/64/EC. Whilst the value of the Declaration is ultimately subject 

to  review  by  the  national  courts,  a  Member  State’s  obligation  to  comply  with  the  Treaties  when 

entering into international obligations clearly derives from Article 351 TFEU. The Court of Justice 

of the European Union confirmed this in a judgement of 2009, ‘However, the second paragraph of 

Article  307  EC  obliges  the  Member  States  to  take  all  appropriate  steps  to  eliminate 

incompatibilities with Community law which have been established in agreements concluded prior 

to  their  accession.  Under  that  provision,  the  Member  States  are  required,  where  appropriate,  to 
assist each other to that end and, where appropriate, to adopt a common attitude.’4. Given that this 

obligation extends to international agreements concluded prior to a Member State’s accession to the 

Union, such an obligation would clearly extend to any international agreements, whether bilateral 

or multilateral, which were concluded following accession. 

3  

4  

Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the 
internal  market  amending  Directives  97/7/EC,  2002/65/EC,  2005/60/EC  and  2006/48/EC  and  repealing  Directive 
97/5/EC (OJ L 319, 5.12.2007, p. 1). 
Case C-118/07 Commission v Finland [2009] ECR 10889, paragraph 28  

2 

 
 
                                                 
3. 

Specific observations  

Deletion of definition of ‘postal money orders' in the Agreement 

3.1 

In the context of the reference in Directive 2007/64/EC5 to ‘postal money orders’ as defined by the 

Universal Postal Union, the ECB would like to point out that the 2008 version of the Agreement 

does  not  contain  any  definition  of  ‘postal  money  orders’,  contrary  to  the  previous  version  of  the 

Agreement  which  was  adopted  in  2004  and  which  was  in  force  at  the  time  when  Directive 

2007/64/EC was adopted. The ECB draws attention to the fact that in order to address this issue and 

ensure legal certainty, national implementing measures should define ‘postal money orders’ instead 

of merely referring to ‘postal money orders’ as defined by the Universal Postal Union. 

Incompatibilities between the Agreement and Directive 2007/64/EC 

3.2  

In particular, the ECB would like to draw attention to the incompatibilities between the Agreement 

and Directive 2007/64/EC that are set out below. 

3.2.1  First,  the  definition  of  the  moment  of  irrevocability  of  a  payment  order  differs  in  the  two  legal 
instruments.  The  Agreement6  defines  the  moment  of  irrevocability  of  a  payment  order  as  the 

moment  when  the  payee  is  paid  or  the  payee’s  account  is  credited  whereas,  in  Directive 
2007/64/EC7,  a  payment  order  is  irrevocable,  once  it  has  been  received  by  the  payer’s  payment 

services provider. 

3.2.2  Second, under the Agreement8, inquiries are to be entertained within a period of six months from 

the day after that on which the postal payment order was  accepted. The deadline and its point of 

departure are different in Directive 2007/64/EC which provides that notification of an unauthorised 

or incorrectly executed payment transaction must be made no later than 13 months after the debit 
date9. 

3.2.3  Finally,  the  scope  and  the  duration  of  liability  differ.  Under  the  Agreement10,  the  postal  payment 

services provider is liable until the postal payment order has been duly paid or the payee’s account 

credited. An exception to the liability of the payment services provider is provided for in case of 
delay  in  the  execution  of  the  services11.  This  exception  does  not  exist  in  Directive  2007/64/EC, 

which provides that the payee’s payment service provider shall be liable to the payee for the correct 
execution of the payment transaction12. 

5  

6  
7  
8  
9  
10  
11  
12 

Article  3(g)(vii)  of  Directive  2007/64/EC  contains  this  reference  in  the  list  concerning  the  negative  scope  of  the 
Directive;  paper-based  postal  money  orders  as  defined  by  the  Universal  Postal  Union  are  outside  the  scope  of  the 
Directive. 
Article 2.27 and Article 6 of the Agreement. 
Article 66 of Directive 2007/64/EC. 
Article 19.1 of the Agreement. 
Article 58 of Directive 2007/64/EC. 
Article 20 of the Agreement. 
Article 22.1.1. of the Agreement. 
Article 75 of Directive 2007/64/EC. 

3 

                                                 
3.2.4  The ECB considers it important that each relevant Member State ensures that the ratification of the 

Agreement does not jeopardise the application of the relevant national rules implementing Directive 

2007/64/EC and takes appropriate measures in this respect, where necessary. 

This opinion will be published on the ECB’s website. 

Done at Frankfurt am Main, 30 November 2010. 

[signed] 

The President of the ECB 

Jean-Claude TRICHET 

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