Select a legislative/policy area

ID 1069. Liability Back

Relevant provisions
Article 78 of Directive 2007/64/EC

Question
In the event of a PSP failing to settle the Clearing can other PSP's rely on Article 78 with regard to the execution of transactions sent to the defaulting PSP.

Answer
Article 78 of the PSD applies in cases "of abnormal and unforeseeable circumstances beyond the control of the party pleading for the application of those circumstances, the consequences of which would have been unavoidable despite all efforts to the contrary, or where a payment service provider is bound by other legal obligations covered by national or Community legislation".
 
As further explained in recital 46, the payment service provider is thus always liable in respect of the execution of a payment transaction accepted from a user, except in cases of abnormal and unforeseeable circumstances - cases of force majeure - and except for the payees payment service providers acts and omissions for whose selection solely the payee is responsible. The criteria of "abnormal and unforeseeable circumstances beyond the control of the party" invoking it are thus only very exceptionally fulfilled, comprehending both natural disasters and events such as strikes, civil unrest, and war.


Date
Submitted on 25/08/2011