Banks operating across several jurisdictions face regulatory uncertainties
At this point in time, the UK and Bulgaria are the only countries to have adopted their final transposition texts, whilst at the other end of the spectrum Sweden recently announced that it will not have PSD legislation in place before the end of the first quarter of 2010 at the earliest. This prompts the practical question of how to handle payments into and out of jurisdictions that have not implemented the PSD in time for the November 2009 deadline. In addition, even if the majority of Member States should have their PSD legislation in place on time, in some cases the banking industry may not have the opportunity to absorb this legislation within the timeframe required to ensure full compliance.
Many banks in Europe are moving their PSD compliance projects full steam ahead based on the original PSD text supplemented by a number of assumptions as regards the implementation approach of individual countries. These assumptions, however, might eventually not be in line with the actual national transposition legislation. It has become clear that in many instances national PSD implementations will involve amending or adding a number of ancillary legal provisions aimed at fixing specific problems at a country level, which are per se outside the PSD scope. Compliance therefore requires detailed knowledge of the final domestic legislation including, if available, supervisory or industry guidance. Unless final legislation texts are available in all Member States banks that operate across several face regulatory uncertainties rather than the intended legal harmonisation of the payments markets.
A table, sourced from the European Commission's PSD website, summarising the official position on the status of transposition activities across all Member States is provided below.
The PSD and the Direct Debit Schemes
In March 2009 the confirmed 2 November 2009 as the launch date of the Direct Debit Schemes. Compliance with key consumer protective provisions defined in the PSD - particularly in the field of refund policies - is a prerequisite for banks joining the Direct Debit Schemes. The revised Regulation 2560/2001 on cross-border payments in euro to enter into force also on 1 November 2009 will require euro area banks currently offering legacy euro direct debit services to be at least reachable as debtor banks under the Direct Debit Scheme by 1 November 2010 (see also the article "A mixed Bag: European Legislator approves revised Regulation 2560/2001 in this Newsletter).
The PSD Expert Group continues to provide practical implementation support for banks
To ensure a common understanding of PSD provisions across all Member States and to bundle the lobbying efforts in this regard, the European Credit Sector Associations established the PSD Expert Group involving legal experts of the European banking industry. The PSD Expert Group continues to closely monitor the state of implementation across all countries focussing on the aforementioned transposition timelines as well as on the degree of national divergences applied - such as the approach taken towards micro-enterprises and "one-leg-out" transactions, for example.
The PSD Expert Group is also in the process of developing industry guidance on selected topics to ensure that all banks in Europe have a common understanding of the PSD's requirements and are able to minimise unnecessary and potentially costly interoperability problems where payments cross national borders within the Single Market. The first part of this guidance is expected to be available shortly and will address key topics such as the scope in terms of geography, currency and types of payment services covered. In addition, the guidance provides a number of key interpretative clarifications concluded as a result of the constructive dialogue with the European Commission throughout 2008.
For further information on the work of the PSD Expert Group, please contact the Secretariat of the European Banking Federation (e-mail to email@example.com).
Ruth Wandhöfer chairs the PSD Expert Group and is a member of the Plenary.
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