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ID 1053. Access to payment systems
Limitations introduced by the national law Back

Relevant provisions
Recital 16 of Directive 2007/64/EC

Question
Recital 16 of the PSD considers the importance of the access of PI to technical infrastructure, which is crucial for the introducing of efficient competition on the market, however preserving possible access limitations to systems with finality of the settlement under Directive 98/26/EC.

The Bulgarian National Bank has adopted legislation which mandatory requires that the acquiring of payment cards, issued by Bulgarian banks, shall be cleared and settled through one of the payment systems under Directive 98/26/EC, designated by Bulgaria pursuant to Art. 10 of Directive 98/26/EC (http://ec.europa.eu/internal_market/financial-markets/settlement/dir-98-26-art10-national_en.htm#bulgaria). This is the provision of Art. 33 of Ordinance 3 of the BNB on the Terms and Procedure for the Execution of Payment Transactions and Use of Payment Instruments.

As far as this is not a technical necessity for acquiring of payment transactions with cards MasterCard/VISA, which may be cleared and settled through the systems of the respective Card Operators, such a provision has the effect of limitation, rather than granting better access to infrastructure to the PI. Can such provision be grounded on Recital 16 of the PSD? Moreover, Recital 16 of the PSD envisages possible limitations of the access of PIs exactly to such payment infrastructure.

Therefore the said provision may be considered as contravening to the most important objective of the PSD to introduce fair competition between the PI and the banks and a coherent legal framework of the payment services market in the EU.

We are aware that the proper legal mechanism to objecting the compliance of national law with EU law is through the ECJ, but this may take years. Does the PSD introduce some procedure for direct communication and/or control of such issues between the Commission and the national authorities?

Answer
Article 28(1) of Directive 2007/64/EC ("Payment Services Directive") addresses the access of payment institutions to payment systems. It enshrines the general principle that Member States shall ensure that the rules on access of authorised or registered payment service providers that are legal persons to payment systems shall be objective, non-discriminatory and proportionate and that those rules do not inhibit access more than is necessary to safeguard against specific risks such as settlement risk, operational risk and business risk and to protect the financial and operational stability of the payment system. However, paragraph 2 of the Article qualifies that this general rule does not apply to payment systems with finality of settlement and designated as such under Directive 98/26/EC. Recital 16 of the Payment Services Directive explains this provision further.
The European Commission is aware of the fact that Article 28 Payment Services Directive in practice did not create as much competition between payment systems than it was hoped for, as many Member States make use of its paragraph 2 mandatory requiring clearing and settlement through one of the payment systems under Directive 98/26/EC. The Commission should re-assess the situation in the context of the review of the implementation and impact of the Payment Services Directive which is due for the end of 2012 (cf. Article 87 Payment Services Directive).


Date
Submitted on 28/06/2011