Opinion of the European Central Bank of 30 January 2013 on credit transfer and direct debit transactions (CON/2013/7)
Date: 2013-01-30
Institutions: European Central Bank
Subjects: Italy, capital transfer, credit transfer, national law, payment system

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 30 January 2013  

on credit transfer and direct debit transactions 

(CON/2013/7) 

Introduction and legal basis 

On 17 January 2013, the European Central Bank (ECB) received a request from the Banca d’Italia for an 

opinion  on  a  draft  act  of  the  Banca  d’Italia  on  the  application  of  Regulation  (EU)  No  260/2012  of  the 

European  Parliament  and  of  the  Council  of  14  March  2012  establishing  technical  and  business 
requirements for credit transfers and direct debits in euro1 (hereinafter the ‘draft act’). 

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 fifth 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 draft act relates to payment systems. 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 act 

Regulation  (EU)  No  260/2012  laid  down  the  end-dates  for  the  migration  of  legacy  credit  transfers  and 

direct debits to pan-European schemes. The Banca d’Italia was designated as the competent authority for 

Italy  under  Article  10(1)  of  the  Regulation.  It  has  prepared  the  draft  act  in  order  to  further  clarify  the 

application of the Regulation in Italy, to exercise its right to grant waivers under Article 16(3) to (7) and 

to include in a single act all the relevant compliance requirements under the Regulation.   

The draft act includes provisions regarding: (i) definitions; (ii) scope, including the specification of the 

national payment services that fall within and outside the scope of the Regulation; (iii) a special regime 

for  the  ‘internal  payments’;  (iv)  waivers;  (v)  interoperability;  (vi)  information  obligations  of  payment 

service  providers  (PSPs)  to  their  customers;  (vii)  the  storage  of  direct  debit  mandates;  (viii)  the  use  of 

BIC  codes,  for  which  no  waiver  is  envisaged,  and  the  establishment  of  databases  for  such  codes; 

(ix) optional additional services; and (x) the obligation for PSPs to prepare ‘migration plans’.  

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2  

OJ L 94, 30.3.2012, p. 22. 
OJ L 189, 3.7.1998, p. 42. 

 
 
 
 
  
                                                 
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2. 

Relationship between the draft act and Regulation (EU) No 260/2012  

The  draft  act  contains  several  provisions  and  definitions  which  to  varying  degrees  duplicate  or  reword 

provisions in the Regulation. This type of application results in unnecessary duplication and could even 

create  inconsistencies  between  national  and  Union  law,  which  would  be  avoided  by  instead  using 

references to the Regulation, wherever relevant. In this respect, according to consistent case-law of the 

European  Court  of  Justice,  ‘in  accordance  with  the  principle  of  the  precedence  of  Community  law,  … 

directly  applicable  measures  of  the  [Union]  institutions  …  preclude  the  valid  adoption  of  new  national 
legislative  measures  to  the  extent  to  which  they  would  be  incompatible  [with  such  Union  measures]’3. 

Moreover,  the  Italian  Constitutional  Court  has  also  stated  that  regulations  should  not  be  reproduced, 

integrated  or  executed  by  national  legislation  which  may  differ  from,  or  affect  the  entry  into  force  of, 
Union measures, or partly derogate from, or repeal, the latter4. Therefore, the ECB recommends replacing 

in the draft act any definition of a term which has already been defined by the Regulation with a reference 

to the Regulation. 

3. 

Scope of the draft act 

3.1  Article  2(1)  of  the  draft  act  explicitly  lists  payment  services  which  fall  within  the  scope  of  the 

Regulation  while  Article  2(5)  states  that  services  other  than  those  referred  to  in  the  preceding 

paragraphs  are  not  bound  to  migrate.  This  does  not  appear  to  be  in  line  with  the  Regulation, 

pursuant to which all credit transfers and direct debits should migrate, unless explicitly excluded by 

the Regulation or by a waiver. Even though the list of payment services in Article 2(1) and (2) is 

not  exclusive,  it  could  still  create  confusion,  and  the  ECB  would  therefore  suggest  deleting 

Article 2(1) and (2) and amending Article 2(5). The Italian payment services that must comply with 

the Regulation could be specified in an annex. 

3.2  With reference to the negative scope, the draft act should specify sufficiently detailed and reasoned 

grounds  for  not  applying  the  Regulation  to  certain  transactions  in  Italy.  Moreover,  according  to 

Article  1(3)  of  the  Regulation,  the  Regulation  nonetheless  applies  only  to  the  underlying  credit 

transfers  or  direct  debts,  where  payment  schemes  are  based  on  payment  transactions  by  credit 

transfers or direct debits but have additional optional features or services. Furthermore, a review of 

services that fall outside the scope could also be considered after some years.  

4. 

Internal payments 

‘Internal payments’, as defined by Article 1(o) of the draft act, are specifically regulated by Article 3. The 

ECB  understands  that  this  Article  is  meant  to  clarify  in  which  circumstances  PSPs  are  not  under  an 

obligation to comply with the requirement specified by Article 5(1)(b) of the Regulation. However, such a 

clarification  is  not  necessary,  as  under  Article  5(1)(b)  of  the  Regulation,  where  transactions  are  not 

3  
4  

See e.g. Case 106/77 Italian Minister of Finance v. Simmenthal S.p.A. [1978] ECR 629, paragraph 17. 
See Italian Constitutional Court Case 183/1973 Frontini v Amministrazione delle Finanze, p. 7. 

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transmitted via a retail payments system or to another PSP, such requirement does not apply. Moreover, 

the definition of ‘internal payments’ in Article 1(o) of the draft Act includes, in addition to transactions 

which are not transmitted to another PSP, also transactions which are transmitted to a PSP which belongs 

to the same banking group. This widens the range of cases in which the requirement under Article 5(1)(b) 

of the Regulation does not have to be complied with and, hence, inappropriately restricts the scope of the 

Regulation. In the light of the above and for the sake of legal certainty, the ECB recommends deleting 

Article 1(o) and Article 3, relating to internal payments, from the draft act. 

5.  Waivers 

5.1  Article  4(1)  of  the  draft  act  waives  for  ‘RID  finanziari’  and  ‘RID  a  importo  fisso’  all  the 
requirements under Article 6(2) of the Regulation until 1 February 2016. Under Article 16(3) of the 

Regulation,  such  waiver  is  only  possible  for  credit  transfer  or  direct  debit  transactions  with  a 

cumulative market share, based on the official payment statistics published annually by the ECB, of 

less  than  10%  of  the  total  number  of  credit  transfers  or  direct  debit  transactions.  Both  ‘RID 

finanziari’  and  ‘RID  a  importo  fisso’  are  defined  as  ‘operational  variants  of  the  RID  interbank 

procedure’,  under  Article  1(v)  and  (w)  of  the  draft  act.  As  a  waiver  under  Article  16(3)  of  the 

Regulation  may  only  be  provided  to  credit  transfer  or  direct  debit transactions,  the  definitions  of 

‘RID finanziari’ and ‘RID a importo fisso’ should be amended.  

5.2  Under  Article  4(2)  of  the  draft  act  a  waiver  is  granted  to  payment  service  users  that  initiate  or 

receive individual credit transfers or direct debits that are bundled together for transmission. In this 

respect, the ECB notes that under Article 16(5) of the Regulation ‘Member States may allow their 

competent authorities, … to waive the specific requirement to use the message formats specified in 

point (1)(b)  of  the  Annex set  out in  Article  5(1)(d) for  PSUs  which initiate  or receive  individual 

credit  transfers  or  direct  debits  that  are  bundled  together  for  transmission’.  However,  under 

Article 5(1)(d)  of  the  Regulation,  the  compliance  with  the  above-mentioned  requirement  is  to  be 

ensured by PSPs. Against this background, and for the sake of clarity, the ECB recommends that 

the waiver should not be addressed to payment service users. 

6. 

Additional optional services 

The ECB notes that Article 1(x) of the draft Act defines additional optional services as non-compulsory, 

whereas Article 9 seems to imply an obligation to provide such services. The ECB suggests clarifying in 

Article 9 that the provision of additional optional services is not compulsory for PSPs. The ECB notes 

that, according to recital 1 of the Regulation, ‘the creation of an integrated market for electronic payments 

in  euro,  with  no  distinction  between  national  and  cross-border  payments  is  necessary  for  the  proper 

functioning of the internal market’. 

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

Done at Frankfurt am Main, 30 January 2013. 

[signed] 

The President of the ECB 

Mario DRAGHI 

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