Opinion of the European Central Bank of 21 May 2012 on the oversight of retail payment services and systems (CON/2012/38)
Date: 2012-05-21
Institutions: European Central Bank
Subjects: Italy, financial stability, national law, payment system, provision of services, retail trade

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 21 May 2012  

on the oversight of retail payment services and systems  

(CON/2012/38) 

Introduction and legal basis 

On 12 March 2012, the European Central Bank (ECB) received a request from the Banca d’Italia for an 

opinion on a draft regulation concerning the oversight of retail payment services and systems (hereinafter 

the ‘draft regulation’). 

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

Functioning  of  the  European  Union  and  the  second,  third,  fifth  and  sixth  indents  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  provisions1,  as  the  draft  regulation  relates  to  means  of 

payments,  the  Banca  d’Italia,  payment  and  settlement  systems,  and  rules  applicable  to  financial 

institutions that materially influence the stability of financial institutions and markets. In accordance with 

the first sentence of Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing 

Council has adopted this opinion. 

1.  

Purpose of the draft regulation 

The draft regulation concerns the provision of retail payment services by payment service providers and 

retail payment systems operators whose registered address and/or centre of operations is in Italy. 

Under  the  draft  regulation,  payment  service  providers  are  requested  to  notify  the  Banca  d’Italia  of  the 

name,  location  and  oversight  rules  of  payment  systems  used  for  the  exchange  of  payment  instructions, 

clearing and settlement of retail transactions when such systems do not fall within the scope of this draft 

regulation. Additional requirements are provided for payment systems located outside the euro area.  

With  reference  to  retail  payment  system  managers,  the  draft  regulation  provides  specific  requirements 

concerning governance, effectiveness of controls, outsourcing, business as well as legal and operational 

risks.  It  also  covers  access  as  well  as  connections  with  other  retail  payment  systems  and  information 

requirements.  

Finally, the draft regulation also contains specific provisions on the retail payment systems operated by 

the Banca d’Italia. In this context, most of the requirements provided for retail payment system operators 

1  

OJ L 189, 3.7.1998, p. 42.  

 
 
 
 
                                                 
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also apply to the Banca d’Italia. In particular, the Banca d’Italia is requested to comply with the full cost 

recovery principle when providing retail payment services in competition with the market. 

The  draft  regulation  replaces  a  regulation  adopted  by  the  Banca  d’Italia  in  2005  on  low-importance 
payments2. 

2. 

General observations  

2.1  The ECB understands that the need for a new regulation in the field of retail payment services and 

systems  has  been  driven,  in  particular,  by  the  latest  developments  in  the  Single  Euro  Payments 
Area project and the new CSSP-IOSCO principles for financial market infrastructures3 (the ‘PFMI 

principles’). In general, the ECB welcomes the draft regulation’s provisions which allow for freer 
competition in the whole sector of retail payments4, as well as the measures directly concerning the 

Banca d’Italia which ensure a level playing field. The ECB also welcomes the reference in Article 

15  to  the  application  of  the  principle  of  full  cost  recovery  by  the  Banca  d’Italia  when  directly 

providing low-value payment services in competition with the market.  

2.2 

In spite of the overall intention to ensure a level playing field, the ECB understands that the Banca 

d’Italia, as a retail payment system operator, would still enjoy several derogations from the rules 

which  otherwise  apply  to  other  retail  payment  system  operators  under  the  draft  regulation.  In 

particular,  the  ECB  notes  that  the  Banca  d’Italia  is  excluded  from  the  scope  of  application  of 

Article  4  which  relates  to  governance  structure.  The  first  sentence  of  such  Article,  however, 

concerns  the  application  of  the  proportionality  principle.  While  the  PFMI  principles  require 

‘appropriate  and  effective  regulation,  supervision,  and  oversight’  and  these  principles  apply 

generally  to  systemically  important  payments  systems,  the  principle  of  proportionality  is 

nonetheless  a  general  principle  of  Union  law.  For  this  reason,  the  Banca  d’Italia  should  not  be 

exempt from the application of the first sentence of Article 4 of the draft regulation. 

2.3  The ECB notes that following the citations which set out the legal basis for the draft regulation, the 

recitals contain a list of factual elements which have been considered by the Banca d’Italia. For the 

sake  of  completeness,  this  list  could  also  include  other  factual  developments  considered  by  the 

Banca d’Italia in the drafting of this regulation. Such developments include: (a) the ECB’s report 

‘Business continuity oversight expectations for systematically important payment systems (SIPS)’ 

of June 2006, (b) the Eurosystem Oversight Policy Framework of July 2011, and (c) the PFMI of 

April 2012. The ECB also notes that in the definitions set out in Article 1 of the draft regulation, in 

2  
3  

4  

See Opinion CON/2005/41 on this subject. All ECB Opinions are published on the ECB’s website at www.ecb.europa.eu.   
International standards for payment, clearing and settlement systems, which are issued by the Committee on Payment and 
Settlement Systems (CPSS) and  the Technical Committee of the International Organization of Securities Commissions 
(IOSCO). 
In the past, due to ‘specific legal and operational characteristics’, the entire clearing process was operated by the Banca 
d’Italia.  Presidential  Decree  No.  248  of  13  December  2010  repealed  the  Royal  Decree-Law  No.  812  of  6  May  1926, 
ratified  as  Law  1262  of  25  June  1926,  under  which  the  management  of  clearing  houses  in  Italy  had  been  exclusively 
assigned to the Banca d’Italia. For this reason, the ECB understands that any specific legal and operational characteristics 
precluding the direct intervention of market operators in the field of retail payment have been removed. 

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some  cases  reference  is  made  to  the  ‘contractual  framework’5  and  in  others  to  the  ‘rules’6 

governing  the  payment  systems.  For  the  sake  of  consistency,  the  ECB  suggests  that  these 

references should be aligned. 

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

Done at Frankfurt am Main, 21 May 2012. 

[signed] 

The President of the ECB 

Mario DRAGHI 

5  
6  

See Article 1(e) of the draft regulation. 
See Articles 1(a) and (g) of the draft regulation. 

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