Payment service law

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The Payment Services Law is in all EU Member States applicable area of law that deals with the above banks unwound national payments concerned.

General

The origin of the EU-wide payment services law was the first EU Payment Services Directive from November 2007. The implementation of the EU Payment Services Directive in 2009 significantly changed national payment transaction law and re-regulated its content. Previously, this was mainly characterized by individual contractual framework conditions and case law , but since then - at least the legal relationship between payment service users and payment service providers - has been comprehensively regulated by law , in particular in the Payment Services Supervision Act (ZAG). With the various instruments of cashless payment transactions , transfer , real-time transfer and direct debit are in the foreground. With bank transfers , the initiative for the payment process lies with the debtor (payer). The counterpart of the transfer is the direct debit. Here it is up to the creditor ( payee ) to collect his claims. The basis is a corresponding direct debit agreement. Credit and debit cards as well as electronic payment systems, which are increasingly replacing cash payments, but not transfers and direct debits, are becoming more and more important .

With Directive (EU) 2015/2366, the first Payment Services Directive was repealed and the ZAG accordingly with the draft law for the implementation of the Second Payment Services Directive (Bundestag printed matter 18/11495 of March 13, 2017) as amended by the Finance Committee (Bundestag printed matter 18/12568 of May 31, 2017) changed by the German Bundestag on June 1, 2017.

The checking account

The technical basis for carrying out cashless payment transactions is the current account . In this respect, the current account is not only an essential instrument for deposit business , but also for payment transactions. The legal basis of cashless payment transactions is the giro contract. Under civil law, this is a continuing obligation in the form of a service contract that deals with business management (§ § 675 , § 611 BGB ). A payment service framework agreement in accordance with Section 675f (2) of the German Civil Code (BGB) can also be part of the giro contract , provided that payment services are provided through them. In this respect, a payment service provider is obliged by a payment service framework agreement in accordance with Section 675f (2) BGB to carry out individual and consecutive payment transactions for the payment service user and, if necessary, to maintain a payment account for the payment service user in his or her name or the names of several payment service users. Section 675f (2) of the German Civil Code (BGB) expressly states that a payment service framework contract can also be part of another contract or be related to another contract.

In practice, the business agency of the credit institute usually consists of opening a current account for the customer and using this account as instructed by the customer

  1. to make cash payments , cash deposits and transfers (including real-time transfers ) of amounts of money,
  2. Carry out online banking ,
  3. Collect or redeem direct debits ,
  4. Carry out check cashing and check collection,
  5. To pay bills of exchange and collect bills of exchange ,
  6. Redeem debit card transactions,
  7. Redeem credit card transactions
  8. make the corresponding postings on the account,
  9. Provide forms (bank transfers, checks, cards, etc.),
  10. Create and send bank statements .

For many of these banking transactions there are special conditions that are part of the general terms and conditions .

With regard to the applicability of the new payment service law, it should be noted that the new payment transaction law, which came into force on October 31, 2009, provides for the following transitional regulation in Art. 229 § 22 EGBGB :

“Article 248 §§ 4 and 13 EGBGB-new does not apply to obligations that have the execution of payment transactions as their object and that arose before October 31, 2009. If the processing of a payment transaction has started before October 31, 2009, the German Civil Code and the BGB Information Obligation Ordinance are to be applied in the version applicable up to then. "

Accordingly, the new payment transaction law will be applied to payment transactions that are processed after October 31, 2009. Before this point in time, the “old” law applies. If, for example, a transfer was ordered before October 31, 2009, or if money was withdrawn from the ATM before October 31, 2009, the rules applicable before October 31, 2009 will be applied. The new law will therefore only gradually determine the facts of payment law and court decisions.

Regulations on payment transactions

Content of the EU Directive 2007/64 / EC on payment services in the internal market

This EU directive lays down regulatory and civil law rules for the provision of payment services, which include transfers, direct debits and card payments. Check and bill of exchange payments, however, are excluded. The set of rules is very extensive with 96 articles. It is divided into the following regulatory complexes:

  1. Scope and Definitions
  2. Supervisory law for payment institutions
  3. Information obligations of the payment service provider
  4. Rights and obligations when providing and using payment services
  5. Implementing measures
  6. Final provisions.

The EU directive has been implemented in Germany by decision of the federal government with two legislative proposals, which refer to points 2, 3 and 4 of the EU directive.

Regulatory regulations

Article 1 of the Payment Services Implementation Act , the "Act on the Supervision of Payment Services " ( Payment Services Supervision Act - ZAG), provides for a specific authorization procedure and special regulations for ongoing supervision for the new category of payment institutions (non-banks that offer certain payment services) The Federal Financial Supervisory Authority ensures compliance with the rules in cooperation with the Deutsche Bundesbank. The new regulations came into force on October 31, 2009.

  • Payment institutions are therefore companies that provide payment services on a commercial basis or to an extent that requires business operations to be set up in a commercial manner.
  • Depositary credit institutions, even if they provide payment services, do not count as payment institutions. The special regulations of the ZAG therefore do not apply to them. Depositorycredit institutionswith a banking license do not need a separate license to provide payment services.
  • Payment services are, for example, the payout, direct debit, transfer, payment card, payment authentication, digitized payment and financial transfer business.

In addition, ancillary services such as foreign exchange transactions, data protection services and the operation of payment systems are permitted.

  • Checks and bills of exchange , the commercial transport of banknotes and coins, payment processes within a payment or securities processing system or those that are provided in connection with the operation of securities investments or by technical service providers are not included in the payment services, nor are payment transactions between them Payment service providers among themselves, for their own account and within a group and a banking group.
  • Payment institutions may only use payment accounts for the use of payment transactions. Payment institutions are not allowed to accept any deposits or other repayable funds. Credit balances on payment accounts that are held with a payment institution may not bear interest. Payment institutions are not allowed to issue electronic money .
  • Loans may only be granted if the following conditions are cumulative:
    • the granting of credit is a secondary activity and takes place exclusively in connection with payment transactions,
    • the repayment will be made within 12 months at the latest
    • the loan is not refinanced from customer funds.
  • Capital - payment institutions have an initial capital of between 20,000 and 125,000 euros, depending on the service provided . An initial capital of 20,000 euros must be kept available for operating the financial transfer business. If the payment institute carries out direct debits, transfers or card transactions, 125,000 euros are specified. In addition to an initial capital, current capital resources must be maintained, which is calculated depending on the transaction volumes.
  • Fuse . Security measures such as " ring fencing " (separation of customer funds from other funds of the payment institution) or the inclusion of insurance policies or guarantees to protect customer funds are provided.
  • Admission . The payment institution must obtain approval before starting its activity . Admission requirements are solid corporate management, a clear organizational structure, solid administrative and accounting procedures, the payment institution's program of activities, a business plan with budget planning, proof of initial capital, and management qualifications. The approval by BaFin is valid in all member states of the European Union.

A ban on discrimination objectively regulates access to payment systems, which does not have to be discriminatory and proportionate. However, restrictions to cover certain risks, such as fulfillment risk , operational risk and entrepreneurial risk, as well as to protect the financial and operational stability of the payment system, are permitted. Restrictions based on the status of the participating institute are not permitted.

Changes to the Banking Act

Article 2 of the “Act for the Implementation of the Supervisory Regulations of the Payment Services Directive” provides for changes to the Banking Act. Since up to now the giro business has significant common overlaps with the payment services of the payment institutions described in more detail in the annex of the payment services directive, the giro business remains as a banking business, according to the rationale for the government draft, only insofar as this includes the implementation of cashless payment transactions for the collection of checks and bills of exchange Traveller's check business concerns: D. h. the term " giro business " is replaced by the terms check and bill collection as well as traveler's check business .

Civil law regulations

application

The new regulations apply to the following payment services: transfers, direct debits, debit and credit card transactions, cash deposits and withdrawals from a payment account, and online banking. Cash payments, cash transports, currency exchange transactions, provided these are not related to an account, checks, bills of exchange, vouchers, promissory notes, payment transactions in connection with the servicing of securities investments are not affected.

The payment service providers must inform their customers about the corresponding new rules. If the payment service provider wants to change the framework agreement, he must inform the user in writing two months in advance.

Rejection of payment orders

Payment orders can be rejected by the bank if the customer has not complied with the agreed conditions for executing the payment, such as IBAN , BIC , recipient name or sufficient funds. The customer must be informed immediately about the rejection.

execution

According to the new legal regulation, “The payment service providers involved and intermediary bodies are no longer obliged to match account numbers or customer IDs and recipient names”, ie the bank is not liable if the customer has not correctly provided relevant customer ID data. The payment amount must be received by the recipient no later than the end of the business day following the receipt of the payment order.

liability

The BGB § 675u-z regulates both the payment service provider's claim for replacement of use and the claim for reimbursement of the payer in the event of a charge due to unauthorized payment. The regulation corresponds to the previous legal situation.

literature

  • Dimitrios Linardatos: "The liability system in cashless payments after the implementation of the Payment Services Directive." Baden-Baden 2013. ISBN 978-3-8487-0709-6
  • Bernd Steffen Bertelmann: The BGB payment service law in the context of the Single Euro Payments Area. Guidelines for the directive-compliant interpretation with comparative consideration of British and French law. Frankfurt a. M. 2011. ISBN 978-3-631-63053-2
  • Christian Koch: Payment transactions in banking practice . Payment services (transfer, direct debit, debit card, credit card, online banking), check, bill of exchange, SEPA, price and performance features. Edited by BVR, DG VERLAG, 2nd edition 2012. ISBN 978-3-87151144-8
  • Christian Koch: Implementation of the civil law part of the Payment Services Directive . Effects on banking practice, general terms and conditions, special conditions, list of prices and services. Deutscher Genossenschafts-Verlag, 65011 Wiesbaden, 2009.9, ISBN 978-3-87151123-3
  • Christian Koch, Thorsten Reinicke: Payment Services Supervision Act . ZAG, Deutscher Genossenschafts-Verlag, Wiesbaden, 2nd edition 2011. ISBN 978-387151143-1
  • Sebastian Omlor : Staudinger, BGB, payment services law . Berlin / Munich 2012. ISBN 978-3-8059-1131-3

Web links

Individual evidence

  1. ↑ Directive 2007/64 / EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market (PDF) OJ. L 319/1 of December 5, 2007 (PSD I)
  2. ↑ Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market OJ. L 337/35 of 23 December 2015 (PSD II)
  3. ↑ Second Payment Services Directive - Article from BaFin's 2016 annual report . Federal Financial Supervisory Authority (BaFin). 2016. Archived from the original on August 8, 2017. Retrieved on August 8, 2017.
  4. ^ J. Rieg: Second Payment Services Directive: New European regulations for payment service providers . Federal Financial Supervisory Authority (BaFin). March 15, 2016. Archived from the original on August 8, 2017. Retrieved on August 8, 2017.
  5. ↑ Printed matter 18/11495 (PDF) German Bundestag. March 13, 2017. Retrieved September 14, 2019.
  6. ↑ Printed matter 18/12568 (PDF) German Bundestag. May 31, 2017. Retrieved September 14, 2019.
  7. ↑ Implementation of the Second Payment Services Directive planned . German Bundestag. March 23, 2017. Archived from the original on August 9, 2017. Retrieved on August 9, 2017.