A brief overview of the legislative process
This section is of interest in particular to readers who are not familiar with the European Union ( ) legislative process. The forthcoming Single Euro Payments Area ( ) Regulation will be adopted in accordance with this process.
It is the privilege of the European Commission (the Commission) to introduce proposals for legislation for consideration and decision by the relevant bodies (see 'Economic and Financials Affairs Council' and 'European Parliament' below). On 16 December 2010, the Commission published a proposal for a Regulation establishing technical requirements for credit transfers and direct debits in euros (the 'Commission proposal'). This Commission proposal is commonly referred to as the forthcoming ' Regulation', i.e. Regulation which will, among other things, establish definitive deadline(s) for migration to .
The Commission proposal is now being progressed in accordance with the 'ordinary legislative procedure' established to adopt legislation. This procedure is based on 'co-decision' of the European Parliament and the Council of the European Union (the Council). As defined in Article 294 of the 'Treaty of the Functioning of the European Union' (TFEU), the co-decision procedure is the legislative process which is central to the European Union's decision-making system. It is based on the principle of parity and means that neither institution (European Parliament or the Council) may adopt legislation without the other's assent (for details on the co-decision process see first link under 'related links' below). Accordingly, the Commission proposal is now under review by both the European Parliament and the Council. Both institutions will table recommendations on how the Commission proposal should be amended. For the Regulation to come into force it is necessary that the European Parliament and the Council agree on a final version of the legal text.
The Council represents the 27 Member States. The Council meets in different 'configurations'. This means that when the Council meets, not all ministers of all governments convene, but only those ministers responsible for specific policy areas. The Economic and Financial Affairs Council (ECOFIN) is one such configuration. The ECOFIN is composed of the economics and finance ministers of the 27 Member States, as well as budget ministers when required. The ECOFIN covers a number of policy areas such as economic policy coordination, economic surveillance, monitoring of Member States' budgetary policy and public finances, the euro (legal, practical and international aspects), financial markets and capital movements and economic relations with third countries.
The Commission proposal for a Regulation is now subject to review by the ECOFIN. The ECOFIN details its recommended amendments to the Commission proposal in the Presidency compromise proposal. The Hungarian Presidency1 of the Council tabled its first draft compromise proposals in March and April 2011.
The European Parliament is the only directly-elected body of the . The European Parliament organises its work through a system of specialised committees. The committees draw up, amend and adopt legislative proposals and own-initiative reports. They also consider legislative proposals of the European Commission and ECOFIN proposals and, where necessary, draw up reports to be presented to the Plenary assembly of the European Parliament. The Commission proposal for a Regulation is considered by the Committee on Economic and Monetary Affairs (ECON) of the European Parliament. The ECON details its recommended amendments to the Commission proposal in the ECON Report. Ms Sari Essayah, member of the ECON, is the Rapporteur of the European Parliament on the file. Ms Essayah published the ECON Draft Report on the Commission proposal on 30 March 2011 (see 'related links' below).
Other parties provide opinions on the Commission proposal for a Regulation. The European Central Bank (ECB) published its opinion on the Commission proposal on 7 April 2011 (see 'related links' below).
Representatives of the Council and the ECON indicated that it is their intention to finalise the legislative process leading to the adoption of a Regulation in 2011.
The ECON Draft Report on the Regulation introduces important improvements to the Commission proposal
As mentioned above, Rapporteur Sari Essayah published the ECON Draft Report detailing amendments of the Commission proposal considered by the European Parliament on 30 March 2011. The Rapporteur indicated that amendments to the ECON Draft Report should be tabled by 16 May 2011. The intention is to submit the final ECON Draft Report for a vote to the ECON members in June 2011 and to the Plenary of the European Parliament in July or September 2011 for a vote in first reading.
The ECON Draft Report is currently being analysed in detail by the . Based on a first assessment, the European Payments Council ( ) welcomes the fact that the ECON Draft Report introduces several important improvements to the Commission proposal.
The ECON Draft Report requires stakeholder consultation in the process of amending the technical requirements applicable to euro credit transfer and direct debit transaction through delegated acts
The annex to the Commission proposal lists the technical requirements to be met by euro credit transfers and direct debits as of the defined end date(s) to be established by the Regulation. The Commission proposal foresees that the legislator will confer extensive executive powers upon the Commission to unilaterally amend these technical requirements through so-called 'delegated acts'. In other words, the Commission would be empowered to change these requirements without seeking approval of the European Parliament and the Council. The maintains that Articles which set out the amendment of technical requirements through delegated acts should be deleted from the Commission proposal. The arguments supporting this position are set out in the detailed response to the Commission proposal (see 'related links' below).
If the legislator decides however, to confer these executive powers upon the Commission, then it must - at a minimum - be ensured that any amendments of the technical requirements are subject to a recommendation of the ECB according to its role and responsibilities. In addition, any amendments of the technical requirements should reflect a consensus among all stakeholders based on adequate market consultation.
The therefore welcomes that the ECON Draft Report introduces the requirement of stakeholder consultation as regards amendment of the technical requirements through delegated acts. The notes that the Council seems to support this improvement as well. The ECB opinion on the Commission proposal states: 'The Commission shall prepare draft delegated acts in close cooperation with the Eurosystem and where relevant, with other members of the ESCB2 and in consultation with service providers and user representatives'. The ECB opinion further states that the exercise of amending the technical requirements through delegated acts must 'ensure, inter alia, that amendments are scheduled taking into account the payment industry's business cycles'.
In the view of the it would also be required that timelines for amended technical requirements to take effect must be aligned with the timelines governing the release management cycles established by international standardisation bodies and European scheme management bodies. In the case of the , this means the timelines governing the change management of the Credit Transfer ( ) and Direct Debit ( ) Rulebooks (for more information see ' / Rulebook Release Management and Scheme Development' under 'related links' below).
The ECON Draft Report proposes to delete the requirement of 'interoperability' of payment schemes
The Commission proposal implies a theoretical scenario of multiple Union-wide payment schemes for euro credit transfers and direct debits. In the view of the however, the concept of 'interoperability' of multiple Union-wide schemes puts at risk the fundamental requirement of full reachability of all payment service providers ( ) across , counters the objective of overcoming the fragmentation of the euro payments market and disregards the principles governing an optimally efficient payment environment. The therefore proposes to delete the reference to the 'interoperability' of payment schemes from the Commission proposal. For more information on the subject refer to the dedicated page on the Website 'What is a Payment Scheme' (see 'related links' below).
The very much welcomes that the ECON Draft Report proposes to delete the reference to the 'interoperability' of payment schemes. The ECOFIN also supports deletion of this reference. Last but not least, the ECB opinion on the Commission proposal suggests, with regard to the relevant Article, 'deleting the reference to payment schemes as technical interoperability between such schemes is not regarded as operationally feasible.'
The ECON Draft Report recommends setting one end date for migration to Union-wide payment schemes
The advocates setting one end date at level for migration to and . The therefore welcomes that the ECON Draft Report also suggests setting one end date for compliance of euro credit transfer and direct debit schemes with the forthcoming Regulation. This is an important improvement compared to the Commission proposal which foresees two separate end dates.
The ECON Draft Report proposes to exclude large value payment systems from the scope of the Regulation
The scope of the Regulation, as set out in the Commission proposal, is too broad. Such a description would also encompass euro payments made via large value systemically important payment systems such as the ECB's TARGET2 and the Euro Banking Association's ( ) EURO1. These payment systems should be excluded from the scope of the Regulation.
The welcomes that the ECON Draft Report and the first draft compromise proposals by the Presidency of the Council and the ECB opinion clarify that large value payment systems should be excluded from the scope of the Regulation.
The recognises that the first considerations of both the European Parliament and the Council, with regard to the Commission proposal, include very important improvements to the Commission proposal. These improvements would greatly contribute to ensuring the desired outcome of this regulatory initiative, i.e. realising a harmonised and integrated euro payments market.
The however, remains particularly concerned with the provisions on multilateral interchange fees for direct debit transactions and technical requirements applicable to direct debit transactions that are currently foreseen to be included in the forthcoming Regulation.
The proposes to delete Article 6 on interchange fees for direct debit transactions from the proposal for a Regulation
Article 6 of the Commission proposal states that 'no multilateral interchange fee per direct debit transaction or other agreed remuneration with an equivalent object or effect shall apply to direct debit transactions'.
Following further evaluation of the possible implications of the Commission proposal on the business model, the Plenary, at its meeting on 23 March 2011, adopted the position:
- That Article 6 (and related Articles and Recitals) should be removed from the proposal.
- That the November 2012 date mentioned in Regulation (EC) No 924/2009 should be removed from that Regulation.
- The continues to support the default multilateral balancing payment (MBP) of maximum 8.8 euro cents and the commitment expressed to the Directorate-General Competition of the European Commission and the European Competition Network (ECN)3 to review the figure after the migration period.
By prohibiting multilateral interchange fees (MIFs), the Commission proposal is premature and inconsistent with the provisions of Regulation (EC) No 924/2009, in particular its 11th Recital and its Article 15.
It is questionable whether a prohibition as far-reaching as currently foreseen under Article 6 can be validly based on Article 114 of the TFEU (formerly Article 95 of the Treaty). In the view of the , any measures based on Article 114 of the TFEU (ex-ante) 'must genuinely be to improve the conditions for the establishment and functioning of the internal market'. Accordingly, 'a mere finding of disparities between national rules and the abstract risk of infringements of fundamental freedoms or distortion of competition is not sufficient to justify the choice of Article 95 EC as a legal basis'.
As measures must be limited to what is necessary to attain its objectives, the considers that this proposal infringes upon the principle of proportionality. The proportionality principle laid out in Article 5 of the Treaty on the European Union stipulates that the content and form of Union action shall not exceed what is strictly necessary to achieve the objectives of the treaties. The objective of the Regulation is to achieve migration away from national payment schemes to pan European schemes. An Article that interferes in the cost accounting of commercial service providers is far from being strictly necessary to achieve that goal.
As the Commission must examine (and to date has failed to examine), if the objectives pursued justify negative consequences for some operators, the considers that by failing to make a thorough assessment, the principle of proportionality has not been respected.
The prohibition of a per-transaction MIF would oblige banks to build a new business model at a time when they could legitimately base their forecasts on the possibility of applying cost-based MIFs. Such a turnaround would infringe upon the principle of legitimate confidence in the policy which has until now been pursued in this area.
The prohibition of the principle of interbank fees infringes upon the fundamental principle of freedom of trade if this prohibition does not respect the principle of proportionality. This is the case here as the objective to strengthen the single payment services market could be met by basing the fee level on the costs for banks in supplying this service, without prohibiting them in principle.
By eliminating the possible application of interbank fees, the proposed amendment to Regulation (EC) No 924/2009 affects the freedom of enterprise beyond the limits allowed by Article 52 of the Charter of Fundamental Rights. Eliminating the possible application of interbank fees constitutes an infringement of the Community principle of an open market economy that must benefit all economic operators, notably those in the banking sector with regard to the reciprocal relations necessarily resulting from their payment services activities.
Regarding European competition law, the considers that there is an error of judgment with regard to the allegedly limited nature of competition for MIF applying to direct debits. The statements in Recital 14 of the Commission proposal appear to be based on initial assessments conducted and published in 2008. As indicated above, such a claim with regard to MIF has never been substantiated to date, notably in the various cases examined by the Directorate General (DG) Competition concerning different means of payment. Indeed, DG Competition even recently recognised the possibility of such interbank fees, in moderate amounts, in the area of bank cards (see the recent communiqués of DG Competition concerning the MasterCard and Visa cases of 1 April 2009 and 8 December 2010).
The Commission fails to explain how the complete ban on MIFs, assuming the prohibition could be based on European competition law, must equally apply to MIFs or bilateral interchange fees (BIFs) for national transactions which are outside the scope of the European competition law rules. Furthermore, the proposal does not lay out why MIFs for return transactions (R-transactions) are fundamentally different and are allowable in principle - as opposed to regular 'per-transaction MIFs' (even though R-transaction MIFs are only allowable within the strict limitations of Article 6 (2) of the Commission proposal).
The maintains its recommendation to delete Article 6 (and related Articles and Recitals) from the proposal for a Regulation.
The Regulation should refrain from re-writing consumer rights established by the Payment Services Directive (PSD)
Several of the technical requirements applicable to direct debit transactions proposed by the European Commission prescribe procedures applicable to the management of direct debit mandates. A direct debit mandate is signed by the payer to authorise the biller to collect a payment and to instruct the payer's bank to pay those collections. The Commission now intends to make it mandatory for to offer such mandate management features which are optional in the Core Direct Debit Scheme ( ). The reiterates that the Schemes were developed throughout a five-year design process under close scrutiny of the Commission and the ECB. The ECB acts as an observer in all working groups. For detailed information on this subject, refer to the dedicated document 'The Principles Governing the Core Direct Debit Scheme' (see 'related links' below).
The Commission now wishes to force to offer such direct debit features which 75 percent of consumers making direct debit payments in the today do not request.4 In proposing these technical requirements, the Commission effectively reverses its position on the matter previously communicated to the : the Commission and the ECB confirmed in their joint letter to the of March 2010 that the Scheme is based 'on proven national concepts, fully meets the respective legal requirements and - in some points - goes even further than required by the Payment Services Directive in order to better satisfy customer needs'. In this joint letter of the Commission and the ECB both institutions recognised that 'factual and perceived security may not always coincide'. To make this perfectly clear: the push to make it mandatory for to offer those mandate management features set out in the Commission proposal for a Regulation is based on a 'perceived' risk scenario that is not supported by market reality. To read this joint letter of the Commission and the ECB, refer to 'related links' below.
In analysing whether these technical requirements now proposed by the Commission are compatible with and conducive to the realisation of the objectives, it should also be kept in mind that the PSD was transposed into the national law of Member States only very recently (November 2009). As stated on the Commission's website, the PSD 'provides the legal foundation for the creation of an -wide single market for payments. The PSD aims at establishing a modern and comprehensive set of rules applicable to all payment services in the European Union. The target is to make cross-border payments as easy, efficient and secure as 'national' payments within a Member State. The PSD also seeks to improve competition by opening up payment markets to new entrants, thus fostering greater efficiency and cost-reduction. At the same time the Directive provides the necessary legal platform for the Single Euro Payments Area'5. A significant part of the PSD addresses consumer protection measures including consumers' refund rights in the context of direct debits. There are no indicators whatsoever which would imply a need to re-write the comprehensive consumer rights defined by the PSD.
The PSD includes insurance for consumers against incorrectly processed direct debit. Articles 62 and 63 of the PSD specify:
- A refund right for payers if the amount of the direct debit was not specified when the authorisation was given, i.e. if the mandate completed by the payer to authorise the payee to collect payment by direct debit does not state the specific amount of the direct debit collection(s).
- A refund right for payers if the amount of the direct debit exceeds the amount specified with the authorisation (the mandate).
- Refunds may be claimed within eight weeks of the debit date for authorised transactions.
Article 58 of the PSD ensures refund rights for unauthorised direct debits. Refunds may be claimed within 13 months for unauthorised transactions. This insurance protects consumers against incorrectly executed direct debits.
The Commission will review the PSD - including its provisions detailing consumer rights - in 2012. Based on this review the Commission will decide whether modifications to the PSD are required. Today there is no evidence whatsoever which would indicate that the consumer protection established by the PSD with regard to direct debit payments would be insufficient.
The Scheme, developed by the is fully aligned with the PSD - and even exceeds the requirements of the PSD. The Scheme grants consumers a 'no-questions-asked' refund right during the eight weeks following a debit from a consumer's account, e.g. during this time any funds collected by will be credited back to the consumer's account upon request.
Given that there is no basis to assume that the consumer rights defined in the PSD would fall short, it is not evident why the Commission would want to overwrite the PSD with the forthcoming Regulation in this regard. Introducing additional mandate management obligations for banks via the forthcoming Regulation, implies that the Commission has no confidence in the PSD. The Commission however, is the principal author of the PSD. The Commission also championed the PSD as a major achievement in the area of consumer protection only 18 months ago.
If the legislator endorses the mandate management obligations proposed by the Commission, direct debits will become more costly - directly or indirectly - for all consumers
If the legislator would endorse the technical requirements proposed by the European Commission with regard to direct debit mandate management features, then it would be mandatory for the almost 4000 and early movers on the demand side that have already implemented the Scheme to re-invest in the adaptation of their payment architecture. Subsequently, direct debits will become more costly - directly or indirectly - for all consumers. This outcome would counteract the stated objective of the European Parliament, the ECOFIN, the ECB and the Commission itself, that should trigger a downward spiral as regards the pricing of payment services. It would be detrimental to the objectives if direct debit users are pushed to accept mandatory features such as additional mandate checks which lead to increased costs for all direct debit users.
Making mandatory those features which are currently optional in the Scheme may prove detrimental to the needs of direct debit users, because the instrument may be felt to be too cumbersome to be used. In consequence, the market will either retain or revert to other - less efficient - payment instruments in the long run. The right balance between efficiency and security must be met. To strike this balance, it is necessary to analyse the requirements applicable to direct debits not in isolation but in comparison to alternative instruments.
The forthcoming Regulation should therefore refrain from making mandatory such features which are optional in the Schemes developed by the .
Focus must be on migration
The scene is set to bring to its successful conclusion. The believes that this objective, i.e. setting definitive deadlines for the replacement of national euro credit transfer and direct debit schemes by a single set of harmonised payment schemes, should remain the focus in the debate on the forthcoming Regulation. The detailed comments of the on the Commission's proposal are available on the Website (see also 'related links' below).
Gerard Hartsink is the Chair of the .
EPC Background Document: The Principles Governing the SEPA Core Direct Debit Scheme (EPC017-11). This document is part of the detailed response to the European Commission proposal for a Regulation establishing technical requirements for credit transfers and direct debits in euros (see link above)
Joint letter of the European Commission and the European Central Bank to the EPC regarding SEPA Direct Debit (March 2010). In this letter, both institutions confirmed that the Core Direct Debit Scheme is based 'on proven national concepts, fully meets the respective legal requirements and - in some points - goes even further than required by the Payment Services Directive in order to better satisfy customer needs'
Committee on Economic and Monetary Affairs (ECON) of the European Parliament: Draft Report on the Proposal for a Regulation Establishing Technical Requirements for Credit Transfers and Direct Debits in Euros (March 2011)
What is a Payment Scheme? - Dedicated Page on the Website
SCT / SDD Rulebook Release Management and Scheme Development - Dedicated Page on the Website
publication: Who is Who in SEPA?
Related articles in this issue:
Related articles in previous issues:
The Good, the Bad, the Ugly and a Knight in Shining Armour? European Commission requests unprecedented powers to determine payment functionalities ( Newsletter, Issue 9, January 2011)
Happy New Year? Post-crisis EU financial sector reform: the impact of 'Basel III' on payments ( Newsletter, Issue 9, January 2011)
So What´s in a Name? Explaining Payment Schemes, Instruments and Systems. Clarity on payment terms is critical in the debate over the approach to setting end dates for migration to SEPA through EU Regulation ( Newsletter, Issue 8, October 2010)
1The Presidency of the Council of the European Union rotates between Member States every six months. The Presidency is held by Hungary in the first half of 2011. There is - in parallel - a permanent President of the Council. The first permanent President of the Council, former Belgian Prime Minister Herman Van Rompuy, was appointed in a special summit on 19 December 2009.
2The European System of Central Banks (ESCB) is composed of the European Central Bank (ECB) and the national central banks (NCBs) of all 27 Member States.
3The European Commission and the national competition authorities in all Member States cooperate with each other through the European Competition Network (ECN).
4The Direct Debit model relies on the direct debit model used in a large number of Member States including Austria, Germany, the Netherlands and Spain. The latter four countries represent those Member States where direct debits are used much more often to make payments than in other countries. Out of some 17 billion direct debits processed in the euro area in 2008, approximately 13 billion direct debits - or 73 percent - were processed in Austria, Germany, the Netherlands and Spain. The Scheme is built on the pre- direct debit model used in these four (and many other) countries.
5European Commission information on the Payment Services Directive (PSD): http://ec.europa.eu/internal_market/payments/framework/index_en.htm
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