PSD2 added to online interactive single rulebook and Q and A tools of EBA

PSD2 added to online Interactive Single Rulebook

The European Banking Authority (EBA) has just included PSD2 to its online Interactive Single Rulebook and Q&A tool. It will now be possible to navigate through PSD2 and all corresponding Technical Standards, Guidelines and related Q&A, on an article by article basis. The Interactive Single Rulebook is available here. 
 
The EBA's work in the area of payments and e-money, including the technical standards and guidelines under PSD2, the EU Interchange Fee Regulation (IFR), the EBA Guidelines on the security of internet payments, and the EBA's views on financial innovations in the payments sector such as "virtual currencies'", is also available here.
 
PSD2 added to EBA Q&A tool 

The inclusion of PSD2 into the Q&A tool will also allow anyone to submit questions relating to the practical application of PSD2 and associated acts. Questions may be asked by anybody, including supervisory authorities, industry associations and individuals. The Q&A tools already includes Capital Requirements Regulation (CRR) and Capital Requirements Directive (CRD IV); Bank Recovery and Resolution Directive (BRRD); Deposit Guarantee Schemes Directive (DGSD).

DG MARKT will prepare answers. These answers will be unofficial opinions of that Directorate General, which the EBA will publish on its behalf. The objective is to answer the majority of questions within 2-4 months.

The Q&A have no binding force in law, nor are they subject to the “comply or explain‟ principle. However their application will be rigorously scrutinised and challenged by the EBA and national supervisory authorities given their undoubted practical significance to achieve a level-playing field.

Very importantly, questions need to be accompanied by your view on what the answer to your question should look like and add arguments supporting this view. 

Undoubtedly a lot of questions on the interpretation of the RTS on strong customer authentication (SCA) and common and secure communications (CSC) will be submitted through the Q&A tool, for example:

• How to differentiate card-based payments initiated by the payee (therefore not subject to SCA requirements) from card-based payments initiated by the payer (subject to SCA requirements)?
• Can the two strong factors be in the same category (e.g. two "something you have") or do they need to fall within two separate categories (something that PSD2 does not require as such)?
• As regards the contactless payment exemption, can a PSP track one cumulative counter (e.g. the number of taps) and flip to the other cumulative counter (i.e. Euros spent) in real-time when the latter becomes more advantageous in terms of delaying SCA?
• Is the trusted beneficiary (or white-listing) exemption available for brick-and-mortar payments, or only available for remote payments?
• Can an e-wallet be white-listed – meaning that any payments to a merchant via white-listed e-wallet would not require SCA? Same question in relation to a marketplace?
• Can a merchant acquirer who is informed that a merchant is white-listed by the cardholder/payer (with the assistance of the card issuer) invoke the benefit of the white-listing exemption, and therefore send the transaction to the card issuer without a request for SCA? 

While the EBA has expressed a (non-legally binding) view on some of these items in its recent Opinion on the implementation of the RTS on SCA  and CSC (available here), no doubt that some of these questions will be posed again via the Q&A tool.

Questions can be submitted here.

The Bird & Bird payments team is composed of leaders on the topic of PSD2 in general, and the above-mentioned RTS in particular (in particular given their prior experience advising on these topics in their previous in-house lawyer positions), and are obviously happy to assist in the preparation of your questions and answers.