Opinion of the European Central Bank of 20 November 2015 on oversight of the smooth operation of payment traffic (‘betalingsverkeer’) (CON/2015/49)
Date: 2015-11-20
Institutions: European Central Bank
Subjects: Netherlands, electronic banking, money, national law, payment system

EN 

ECB-PUBLIC 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 20 November 2015 

on oversight of the smooth operation of payment traffic (‘betalingsverkeer’) 

(CON/2015/49) 

Introduction and legal basis 

On 20 October 2015, the European Central Bank (ECB) received a request from De Nederlandsche Bank 

(DNB)  for  an  opinion  on  a  draft  regulation  on  the  oversight  of  the  smooth  operation  of  payment  traffic 

(‘betalingsverkeer’) (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 indent of Article 2(1) of Council Decision 98/415/EC1, 

as the draft regulation concerns means of payment. 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 

1.1  The  draft  regulation  lays  down  rules  aimed  at  promoting  the  smooth  operation  of  payment  traffic 

within  the  Netherlands.  The  draft  regulation  applies  to  banks,  payment  institutions  and  electronic 

money  institutions  that  have  their  registered  office  in  the  Netherlands  and  individually  process 

60 million  or  more  non-cash  payment 

transactions  every  year,  which  brings 

institutions 

representing  about  95%  of  total  domestic  transaction  volume  within  the  scope  of  the  draft 

regulation. 

1.2  Pursuant  to  Dutch  law,  payment  processing  service  providers,  banks,  payment  institutions  and 

electronic  money  institutions,  when  structuring  their  operational  management,  must  comply  with 

DNB  regulations  implementing  international  standards  that  promote  the  smooth  operation  of  the 

payment  systems.  The  draft  regulation  is  intended  to  ensure  public  confidence  in  mass  retail 

payment traffic and to minimize social unrest. 

1.3  According to the draft regulation, an institution will be required to, inter alia, (a) have a sound, clear 

and  enforceable  legal  basis  for  its  activities  in  all  jurisdictions  relevant  to  its  activities;  (b)  have  a 

transparent, balanced and adequate governance structure that takes into account the importance 

for  society  of  smoothly  operating  payment  traffic;  (c)  clearly  arrange  responsibilities  in  respect  of 

payment  traffic  and  standards  used,  covering  at  least  availability  and  security,  which  should  be 

assigned  at  a  sufficiently  senior  level;  (d)  have  a  sound  risk  management  framework  relating  to 

payments.  

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Council  Decision  98/415/EC  of  29 June  1998  on  the  consultation  of  the  European  Central  Bank  by  national 
authorities regarding draft legislative provisions (OJ L 189, 3.7.1998, p. 42). 

 
 
 
 
                                                 
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1.4  Regarding  operational  risks,  the  draft  regulation  requires  an  institution  to  adequately  identify, 

monitor and control operational risks related to payment traffic. This requires an institution to use 

systems, policies and  control measures that identify risks and mitigate their impact. An institution 

must  aim  for  continuous  operation  or  timely  recovery  in  the  event  of  disruption  of  its  business 

operations and service provision. The systems must be set up so as to ensure high availability and 

security levels. 

1.5  The draft regulation contains a number of specific operational requirements. From the end of 2016, 

time-critical payment orders must meet an availability standard of at least 99.64%, to be increased 

to  99.76%  from  the  end  of  2017  and  99.88%  from  the  end  of  2018,  in  the  peak  demand  period 

measured  on  a  quarterly  basis,  and  98.5%  outside  the  peak  demand  period.  Institutions  must 

ensure  timely  recovery  of  service  provision  for  non-time-critical  payment  orders,  implying  that  it 

may  not  take  more  than  two  hours  before  a  payment  order  can  be  initiated.  For  the  parts  of  the 

transaction processes that are carried out by third-party service providers, the availability standards 

must be laid down in contractual arrangements. 

1.6  The ECB understands that the sanctions regime in respect of the draft regulation is provided for in 

the Law on financial supervision. The Law on financial supervision is streamlined with the Law on 
administrative  law2,  which  contains  instruments  available  for  oversight  and/or  supervision,  for 

instance, orders for incremental penalty payments or administrative penalties. 

2. 

General observation 

The ECB understands that the draft regulation is exclusively concerned with payment traffic within 

the Netherlands involving institutions that have their registered office in the Netherlands and that it 

does  not  interfere  with  the  implementation  of  the  ECB’s  and  Eurosystem’s  oversight  policy  for 

payment systems and payment instruments, as set out in Article 127(2) of Treaty, Article 3.1 and 

Article  22  of  the  Statute  of  the  European  System  of  Central  Banks  and  of  the  European  Central 

Bank, the Regulation of the European Central Bank (EU) No 795/2014 of 3 July 2014 on oversight 
requirements for systemically important payment systems (ECB/2014/28)3 (the ‘SIPS Regulation’) 

and the respective Eurosystem oversight policy frameworks.   

3. 

Specific observations 

3.1  The ECB notes that the definition of payment traffic (‘betalingsverkeer’) under the draft regulation 

includes the set of payment instruments, payment services, payment transactions, procedures and 

funds  transfer  systems  to  facilitate  the  circulation  of  money.  The  ECB  understands  that  this 

regulation  does  not  apply  to  systemically  important  payment  systems,  nor  to  interbank  retail 

payment  systems  ("retailbetaalsystemen")  within  the  meaning  of  the  SIPS  Regulation  and  the 
revised  Eurosystem  oversight  framework  for  retail  payment  systems.4  The  ECB  understands  that 

the  draft  regulation  is  not  meant  to  regulate  the  area  of  interbank  transactions.  The  ECB  also 

2   
3   
4  

Algemene wet bestuursrecht. 
OJ L 217, 23.7.2014, p. 16. 
https://www.ecb.europa.eu/pub/pdf/other/Revised_oversight_framework_for_retail_payment_systems.pdf. 

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understands that the aim of the draft regulation is to ensure the smooth functioning of mass retail 

payments,  by  addressing  the  providers  of  retail  payment  services,  whereas  their  underlying 

payment systems (interbank funds transfer systems) are subject to other regulation.  

3.2  The ECB notes that that it should be ensured by the regulator that the requirements on risk controls 

in  the  institutions  are  in  line  with  the  applicable  national,  European  and  international  rules, 

regulations and principles, including the current and future applicable European Banking Authority 

guidelines and regulatory technical standards. 

3.3  The ECB welcomes the introduction of availability requirements for time-critical payment orders, as 

well as timely recovery, introduced by the draft regulation to further strengthen public confidence in 

retail  payment  instruments,  especially  in  those  cases  where  the  instant  notification  of  the 

successful payment initiation is vital  in the context of the underlying transaction (such  as in-store 

payments or certain categories of e-commerce payments, like the purchase of digital services). In 

this respect, the ECB notes that national regulation in this area would be greatly enhanced by the 

emergence of a truly European approach, avoiding fragmentation of regulatory approaches across 

Member  States.  The  ECB  also  welcomes  that  this  requirement  will  be  phased  in  gradually  from 

99.65%  from  the  end  of  2016  to  reach  an  availability  standard  of  at  least  99.88%  in  the  peak 

demand  period  from  the  end  of  2018  to  allow  for  the  institutions  to  adapt  their  business  practice 

accordingly.  

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

Done at Frankfurt am Main, 20 November 2015. 

[signed] 

The President of the ECB 

Mario DRAGHI 

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