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UK Treasury interpretation of Article 36 of PSD2 – a welcome surprise? PDF Print E-mail
Tuesday, 15 November 2016
Article 36 of the second Payment Services Directive (PSD2) will require the Member States of the European Union to “ensure that payment institutions have access to [bank] payment accounts services on an objective, non-discriminatory and proportionate basis. Such access shall be sufficiently extensive as to allow payment institutions to provide payment services in an unhindered and efficient manner. The [bank] shall provide the competent authority with duly motivated reasons for any rejection”  

Some market participants had thought this meant the banks would eventually have to make payment account services available to (eg) money remitters, and payment initiation and account information service providers, so they could make their services available to consumers more easily than might otherwise have been the case. However, HM Treasury has told the Financial Conduct Authority’s Payment Services Stakeholder Liaison Group that it takes a different view.

Perhaps in reliance on recital 39 of PSD2, the Treasury has decided that – subject to the outcome of a consultation process beginning shortly – it “will not mandate that [banks] provide payment services providers … with access to payment account services“. The underlying reason seems to be that Article 36 only really requires the banks to “treat like applications alike“, and not much more than that. So, the banks will “need to make available criteria for assessing applications for [payment account services] to [payment services providers] requesting such access“. Then, if the bank rejects an application or withdraws a service, it will be required to give notice to the FCA with reasons, to enable the FCA to monitor Article 36 compliance.

In the circumstances, the FCA has:

“invited general comments on Article 36 and the issue of access to [payment account services] for [payment service providers]“;
“requested input on what should be considered an ‘application’ for the purposes of Article 36“; asked for “views on which [payment account services] are critical to providing payment services“; and
“confirmed that guidance on Article 36 [will] be included in the updated [FCA] Approach Document]” to the Payment Services Regulations, in due course.

The Stakeholder Group’s initial responses to these requests are included in the minutes for the relevant Group meeting. The next meeting will take place in December.

NOTE: This won’t affect a payer’s right to use a payment initiation service, or a payment service user’s right to use an account information service. Nor will it affect a bank’s obligation to interact with payment initiation and account information service providers in particular ways, when these services are used. These rights and obligations will (or at least should) still be created by the UK’s Article 66 and 67 implementing rules or laws in due course. But there’s still a practical issue that Article 36 might have been used to resolve: FinTech businesses need bank accounts – but the banks aren’t always willing or able to provide them. The Treasury seems to have been considering whether to intervene to address this issue. If it was, it seems to have decided not to do so after all.

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