belgiquelex.be - Carrefour Bank of Legislation

10 DECEMBER 2009. - Payment Services Act (1)

ALBERT II, King of the Belgians,
To all, present and to come, Hi.
The Chambers adopted and We sanction the following:
PART I^er. - General provisions
CHAPTER 1^er. - Introductory provision
Article 1^er. This Act regulates a matter referred to in Article 78 of the Constitution.
It partially transposes Directive 2007/64/EC of the European Parliament and the Council of 13 November 2007 on payment services in the domestic market, amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC.
CHAPTER 2. - Definitions and scope
Art. 2. For the purposes of this Act, it shall be understood by:
1°"Payment Service": any service offered for sale as part of a professional activity, mentioned below:
(a) services to pay cash on a payment account and all transactions required by the management of a payment account;
(b) services to remove cash from a payment account and all transactions required to manage a payment account;
(c) the execution of payment transactions, including transfers of funds on a payment account to the user's payment service provider or to another payment service provider:
- the execution of domiciles;
- the execution of payment transactions through a payment card or similar device;
- the execution of transfers, including permanent payment orders.
(d) the execution of payment transactions in which funds are covered by a credit contract granted to the user of payment services:
- the execution of domiciles;
- the execution of payment transactions through a payment card or similar device;
- the execution of transfers, including permanent payment orders.
(e) the issuance and/or acquisition of payment instruments;
(f) transfers of funds;
(g) the execution of payment transactions, where the consent of the payer to a payment transaction is given by means of any telecommunication, digital or computer device and the payment is sent to the operator of the system or network of telecommunications or computer, acting only as an intermediary between the user of payment services and the supplier of goods or services;
2° "Payment Services Provider": any legal person who provides payment services to a payment service user and who meets the characteristics of one of the institutions listed below:
(a) credit institutions established in Belgium referred to in Article 1^er, paragraph 2, 1 of the Act of 22 March 1993 relating to the status and control of credit institutions and credit institutions constituted in accordance with the law of another Member State of the European Economic Area to which the regime of Article 66 of the aforementioned Law applies;
(b) electronic currency institutions established in Belgium referred to in Article 1^er, paragraph 3, 2°, of the Act of 22 March 1993 relating to the status and control of credit institutions and electronic currency institutions constituted in accordance with the law of another Member State of the European Economic Area to which the regime of Article 66bis of the aforementioned Law applies;
(c) Public law station SA;
(d) payment institutions: legal persons who are authorized to provide payment services in accordance with the Act of 21 December 2009 on the status of payment institutions, access to the activity of payment service provider and access to payment systems;
e) the National Bank of Belgium and the European Central Bank, when they do not act as a monetary authority or other public authority;
(f) the Belgian federal, regional and local authorities, provided that they are empowered to do so under the legislation that regulates their mission and/or status and do not act as public authority.
The person who provides payment services in the course of his or her usual or professional activity to a payment service user without a necessary approval or authorization shall nevertheless be subject to the mandatory provisions of this Act;
3° "user of payment services": the natural or legal person who uses a payment service as a payer, beneficiary or both;
4° "payer": the natural or legal person who holds a payment account and who authorizes an order of payment from that payment account, or the natural or legal person who, in the absence of a payment account, gives an order of payment;
5° "beneficiary": the natural or legal person who is the intended recipient of funds that have been the subject of a payment transaction;
6° "Payment transaction": an action initiated by the payer or the recipient, consisting of the payment, transfer or withdrawal of funds, regardless of any underlying obligation between the payer and the recipient;
7° "Payment order": any instruction from a payer or beneficiary to his payment service provider requesting the execution of a payment transaction;
8° "Payment Account": an account that is held on behalf of one or more users of payment services and is used for the purpose of performing payment transactions;
9° "funds": bank notes and coins, scriptural currency and electronic currency within the meaning of Article 3, § 1^er7° of the Act of 22 March 1993 on the Status and Control of Credit Institutions, supplemented by the Act of 25 February 2003;
10° "Payment Instrument": any custom device and/or set of procedures agreed between the payment service user and the payment service provider and to which the payment service user uses to initiate a payment order;
11° "Authentication": a procedure allowing the payment service provider to verify the use of a given payment instrument, including its custom security devices;
12° "unique identifier": the combination of letters, numbers or symbols indicated to the payment service user by the payment service provider, which the payment service user must provide to allow the certain identification of the other payment service user and/or its payment account for a payment transaction;
13° "home payment": a payment service to debit a payer's payment account, where a payment transaction is initiated by the recipient on the basis of the consent given by the payer to the recipient, the recipient's payment service provider or the payer's own payment service provider;
14° "transmitting funds": a payment service by which the funds are received from a payer, without creating payment accounts on behalf of the payer or the recipient, for the sole purpose of transferring a corresponding amount to a beneficiary or other payment service provider acting on behalf of the recipient, and/or by which such funds are received on behalf of the recipient and made available to the recipient;
15° "Payment system": a system for transferring funds, governed by standardised formal procedures and common rules for the processing, compensation and/or settlement of payment transactions;
16° "frame contract": a payment services contract that governs the future execution of special and successive payment transactions and may set out the obligations and conditions related to the opening of a payment account;
17° "workable day": a day in which the payer's payment service provider or the recipient's payment service provider involved in the execution of a payment transaction is accessible to carry out an activity to carry out payment transactions;
18° "value date": the reference date used by a payment service provider to calculate the interest applicable to funds debited from a payment account or credited to a payment account;
19° "reference exchange rate": the exchange rate that serves as the basis for calculating exchange transactions and is made available by the payment service provider or emanates from a source accessible to the public;
20° "reference interest rate": the base interest rate used to calculate the interest to be applied and derived from a publicly available source that can be verified by both parties to a payment service contract;
21° "Distance communication means": any means that can be used to enter into a payment services contract without the simultaneous physical presence of the payment service provider and the payment service user;
22° "sustainable support": any instrument that allows the payment service user to store information that is addressed to him personally in a way that allows him to easily refer to it in the future for a period of time suitable for the purposes to which the information is intended and that allows the identical reproduction of the information stored;
23° "consumer": a natural person who, as part of the payment services contracts governed by this Act, acts for a purpose other than its commercial or professional activity;
24° "Custom security device": any technical means assigned by a payment service provider to a given user for the use of a payment instrument. This device specific to the user of payment services and placed in his custody, allows to verify the use of a given payment instrument and aims to authenticate the user;
25° "agent": a natural or legal person acting on behalf of a payment institution for the provision of payment services;
26° "Staff": an operating seat other than the central administration that constitutes a part of a payment institution, which has no legal personality, and which directly carries out, in whole or in part, the transactions inherent in the payment establishment activity; all operating seats created in the same Member State by a payment institution having its central administration in another Member State are considered to be a single branch;
27° "group": the set of companies made up of a parent company, its subsidiaries, companies in which the parent company or its affiliates directly or indirectly hold an interest, as well as companies with which a consortium is formed and companies that are controlled by the latter or in which the latter hold an interest;
28° "credit contract" a contract under which a payment service provider consents or undertakes to consent to a payment service user a credit in the form of a payment time, loan or other similar payment facility.
Art. 3. § 1^er. This Act applies to payment services, to the extent that both the payer's payment service provider and the recipient's service provider, or the only payment service provider involved in the payment transaction, are located in the European Union and payment services are offered on sale in Belgium.
Sections 48 and 61 are also applicable to payment services, as soon as the payment service provider of the payer or the recipient is located in Belgium.
Sections 36 and 37 are also applicable to payment services, as soon as the payer's payment service provider is located in Belgium.
The King may, by a deliberate decree in the Council of Ministers, taking into account the comparable legal provisions applied in the other Member States of the European Union, the nature and availability of the payment service offered and the real possibility for payment service providers to provide additional information, to extend completely or partially the list of items listed in the preceding paragraph to Articles 5 to 20, 22, § 1^er, 23, 25 to 28, 30 to 34, 40 to 42, 49 and 56, § 1^er.
The States Parties to the European Economic Area Agreement shall be assimilated to the Member States of the European Union for the purposes of this Law.
§ 2. Unless otherwise provided, this law applies to payment services as referred to in § 1^er, provided in euros or in the currency of a Member State outside the euro area. However, sections 36 and 37 are applicable to payment services regardless of currency used.
Art. 4. The provisions of this Act do not apply to:
1° payment transactions exclusively made in cash and going directly from the payer to the beneficiary, without any intermediary intervention;
2° payment transactions from the payer to the recipient, through a commercial agent authorized to negotiate or conclude the sale or purchase of goods or services on behalf of the payer or recipient;
3° physical transport of bank notes and professional documents, including their collection, processing and delivery;
4° payment transactions consisting of the collection and remission of non-professional species as part of a non-profit or charitable activity;
5° services for which cash is provided by the recipient for the benefit of the payer as part of a payment transaction, at the express request of the payment service user formulated just before the execution of the payment transaction via a payment for the purchase of goods or services;
6° exchange activities, i.e., "species against cash" transactions in which funds are not held on a payment account;
7° payment transactions based on one of the following documents, drawn from the payment service provider to make funds available to the recipient:
(a) a paper cheque referred to in section 1^er Act of 1^er March 1961 concerning the introduction in national legislation of the Uniform Cheque Act and its entry into force or any other similar form of paper cheque, such as the postal cheque referred to in the Act of 2 May 1956 on the postal cheque, a circular cheque or any other cheque that, regardless of its name, has the same legal consequences;
(b) a paper currency letter referred to in section 1^er coordinated laws of 31 December 1955 on the letter of exchange and the promissory note and any other similar form of paper letter of exchange which, regardless of its name, carries the same legal consequences;
(c) a paper-based service title, including the paper-based service title referred to in section 2, 1°, of the Act of 20 July 2001 to promote the development of services and local employment, and paper-based cheques;
(d) a paper travel cheque;
(e) a paper-based postal mandate issued and/or paid in cash at a post office or another postal service point;
8° payment transactions carried out within a system of payment or settlement of securities transactions between settlement agents, central counterparties, compensation boards and/or central banks and other system participants, and payment service providers, without prejudice to the provisions of section 49 of the Act of 21 December 2009 relating to the status of payment establishments, access to the activity of payment services provider and
9° payment transactions related to the asset and securities service, including the distribution of dividends, income or other, refunds or sales, made by persons referred to in 8° or by investment companies, credit institutions, collective investment organizations or portfolio management companies providing investment services and any other entity authorized to keep in deposit of financial instruments;
10° services provided by technical service providers in support of the provision of payment services, without entering, at any time, the funds to be transferred and consisting in, inter alia, the processing and recording of data, trust and privacy services, the authentication of data and entities, information technologies and the provision of communication networks, as well as the provision and maintenance of terminals and services
11° services based on payment instruments that cannot be used, for the acquisition of goods or services, only in the premises used by the transmitter or in the context of a trade agreement with the transmitter, within a limited network of service providers or for a limited range of goods or services, and that:
- these payment instruments are not - directly or indirectly - related to a credit contract, or
- if it is a payment instrument, on which may be loaded or unloaded of the electronic currency, no direct access to the payment account used to charge or unload the electronic currency is possible using this instrument;
12° payment transactions performed by a digital or computer telecommunications device, where the goods or services purchased are delivered and must be used by a digital or computer telecommunications device, provided that the operator of the telecommunications, digital or computer system does not act solely as an intermediary between the payment service user and the supplier of goods or services;
13° payment transactions between payment service providers, their agents or branches for their own account;
14° payment transactions between a parent company and its subsidiary or between subsidiaries of the same parent company, without any other payment service provider of a company of the same group acting as an intermediary;
15° cash withdrawal services by means of automatic ticket distributors, offered by vendors acting on behalf of one or more card issuers, who are not parties to the framework contract with the customer withdrawing money from a payment account, provided that these providers do not provide other payment services listed in section 2, 1°.
PART II. - Transparency in terms of payment services and information requirements
CHAPTER 1^er. - Introductory provisions
Art. 5. This title applies to isolated payment transactions, framework contracts and individual payment transactions.
The provisions of this title do not affect other legal provisions providing for additional pre-information requirements or special conditions for granting credit to consumers.
CHAPTER 2. - Insulated payment transactions
Section 1^re. - Scope of application
Art. 6. This chapter applies to isolated payment transactions that are not covered by a framework contract.
Section 2. - Prerequisite information and conditions
Art. 7. When a payment order for an isolated payment transaction is transmitted through a payment instrument under a framework contract, the payment service provider is not required to provide or make available information that has already been given to the payment service user on the basis of a framework contract with another payment service provider or that will be given to the payment service provider in accordance with the said framework contract.
Art. 8. § 1^er. Before the payment service user is bound by an isolated contract or offer of payment service, the payment service provider shall make available to the payment service user in a readily accessible form the information and conditions set out in Article 9.
Upon request from the payment service user, the payment service provider provides this information and conditions on paper or on another sustainable medium.
This information and conditions are communicated in easily understandable terms and in a clear and intelligible form in the language or languages of the linguistic region where the payment service is offered or in any other language agreed by the parties.
§ 2. If, at the request of the payment service user, the insulated payment service contract is entered into by means of remote communication not allowing the payment service provider to comply with § 1^er, the latter meets the obligations arising out of the said paragraph immediately after the execution of the payment transaction.
§ 3. It is also possible to fulfill the obligations under § 1^er providing a copy of the draft Isolated Payment Service Contract or the draft payment order containing the information and conditions defined in Article 9.
Art. 9. § 1^er. The information and conditions to be provided or made available to the payment services user include at least:
1° of the specific information or unique identifier that the payment service user must provide for the correct execution of his payment order;
2° the maximum period of execution in which the payment service must be provided;
3° all fees payable by the payment service user to the payment service provider and, where applicable, the breakdown of the fee amounts;
4° where applicable, the actual or reference exchange rate that must be applied to the payment transaction.
§ 2. Where applicable, the other useful information and conditions referred to in Article 14 are made available to the payment services user in a readily accessible form.
Section 3. - Information after payment order and after payment transaction
Art. 10. Immediately after receiving the payment order, the payer's payment service provider shall provide the payer or make available to the payer, in accordance with the terms referred to in Article 8, § 1^erthe following information:
1° a reference allowing the payer to identify the payment transaction and, where applicable, information relating to the recipient;
2° the amount of the payment transaction expressed in the currency used in the order of payment;
3° the amount of the fee payable to the payer for the payment transaction and, where applicable, the breakdown of the amounts of the payment;
4° where applicable, the exchange rate applied to the payment transaction by the payer's payment service provider or a reference to that rate, where it is different from the exchange rate provided in accordance with Article 9, § 1^er, 4°, and the amount of the payment transaction after this monetary conversion;
5° the date of receipt of the payment order.
Art. 11. Immediately after the execution of the payment transaction, the recipient's payment service provider shall provide the recipient or make available to the recipient, in accordance with the terms and conditions referred to in Article 8, § 1^erthe following information:
1° references allowing the recipient to identify the payment transaction and, where applicable, the payer, as well as any information transmitted with the payment transaction;
2° the amount of the payment transaction in the currency in which the funds are available to the recipient;
3° the amount of the fee payable to the beneficiary for the payment transaction and, where applicable, the breakdown of the amounts of the fee;
4° where applicable, the exchange rate applied to the payment transaction by the recipient's payment service provider, and the amount of the payment transaction prior to that monetary conversion;
5° the credit value date.
CHAPTER 3. - Framework contract and individual payment transactions covered by it
Section 1^re. - Scope of application
Art. 12. This chapter applies to payment transactions covered by a framework contract.
Section 2. - Framework contract
Sub-section 1^re. - Prerequisite information and conditions
Art. 13. § 1^er. In a timely manner, before the payment service user is bound by a framework contract or offer, the payment service provider provides the information and conditions referred to in Article 14 on paper or on another sustainable medium.
This information and conditions are provided in easily understandable terms and in a clear and intelligible form, in the language of the linguistic region in which the payment service is offered or in any other language agreed by the parties.
§ 2. If, at the request of the payment service user, the framework contract is entered into by means of remote communication not allowing the payment service provider to comply with § 1^erthe latter shall comply with the obligations arising out of the said paragraph immediately after the conclusion of the framework contract.
§ 3. It is also possible to fulfill the obligations under § 1^er providing a copy of the draft framework contract with the information and conditions defined in Article 14.
Art. 14. The information and conditions to be provided to the payment services user include at least the following:
1° the payment service provider:
(a) the identity of the payment service provider, including, where appropriate, its business number, the geographic address of its central administration and, where applicable, the geographic address of its agent or branch established in Belgium in which the payment service is proposed, and all other addresses, including the e-mail address, to be taken into account for communication with the payment service provider, and
(b) the coordinates of the competent prudential control authority and the register concerned with that authority in which the payment service provider is registered for approval, as well as its registration number or equivalent means of identification of that register,
2° the use of a payment service:
a) a description of the main features of the payment service to be provided, including, where applicable, the possible uses of the payment instrument and in particular the question of whether it is possible to agree on the limits of expenditure for the payment transactions carried out through the payment instrument, in accordance with Article 30, § 1^er,
(b) the specific information or unique identifier that the payment services user must provide for the correct execution of the payment order,
(c) the form and procedure for giving consent to the execution of a payment transaction and the withdrawal of that consent, in accordance with Articles 28 and 42,
(d) a reference at the time of receipt of the payment order as defined in section 40 and the possible deadline established by the payment service provider,
(e) the maximum delivery time in which the payment service must be provided,
3° fees, interest rates and exchange rates:
(a) all fees payable by the user of payment services to his or her payment service provider and, where applicable, the breakdown of the amounts of such fees,
(b) where applicable, interest rates on an annual basis and exchange rates to be applied or, if interest and reference exchange rates are to be used, the method of calculating the real interest, and the date and the index or base to determine such a reference interest or exchange rate, and
(c) if agreed in this manner, the immediate application of the changes to the rates of interest or exchange of reference and the requirements for information relating to these amendments, in accordance with Article 16, § 2,
4° the communication:
(a) where appropriate, means of communication, including technical requirements for the equipment of the payment service user, agreed between the parties for the purpose of transmitting information or notifications under this Act;
(b) the terms and frequency that the information provided by this Act is provided or made available;
(c) the language(s) in which the framework contract will be concluded and the communication made during the contractual relationship, and
(d) the right of the user of payment services to receive the contractual terms of the framework contract, as well as the information and conditions provided for in Article 15,
5° protection measures and corrective measures:
(a) where applicable, a description of the risks and precautionary measures that the user of payment services takes to preserve the security of a payment instrument and the terms of notification to the payment service provider under section 31, § 1^er2°,
(b) if so agreed, the conditions under which the payment service provider reserves the right to block a payment instrument in accordance with Article 30,
(c) the liability of the payer in accordance with section 37, including information on the amount concerned,
(d) the period and the terms and conditions under which the payment service user shall notify the payment service provider of the non-authorized or ill-executed payment transactions in accordance with section 34 and the liability of the payment service provider for unauthorized payment transactions, in accordance with section 36,
(e) the liability of the payment service provider for the execution of payment transactions, in accordance with sections 50 to 52,
(f) the conditions of reimbursement in accordance with articles 38 and 39,
6° the modification and termination of the framework contract:
(a) if so agreed, the fact that the payment service user is deemed to have accepted the amendment of the terms in accordance with section 16 unless the payment service provider has notified the payment service provider of its refusal before the proposed date for the entry into force of that amendment,
(b) the duration of the framework contract,
(c) the right of the user of payment services to terminate the framework contract and any agreement related to that termination, in accordance with Articles 16, § 1^er and 17,
7th appeal:
(a) any contractual clause relating to the law applicable to the framework contract and/or the competent court,
(b) alternative claims and remedies open to the user of payment services, in accordance with Title IV, including the physical address of the proceeding where the user of payment services can address his claims, including the contact details of the Directorate General Control and Mediation with the Federal Public Service Economy, P.M.E., Average Energy Classes.
Art. 15. During the contractual period, the user of payment services has, at any time, the right to receive, upon request, the contractual terms of the framework contract, as well as the information and conditions referred to in Article 14, on paper or other durable medium.
Sub-section 2. - Change of conditions and termination of the framework contract
Art. 16. § 1^er. Any modification of the framework contract, as well as the information and conditions referred to in Article 14, is proposed by the payment service provider in accordance with the terms and conditions provided for in Article 13, § 1^erand no later than two months before the proposed date for its entry into force.
In the event that section 14, 6°, (a), applies, the payment service provider shall inform the payment service user that it is deemed to have accepted the amendment if it did not notify the payment service provider before the proposed effective date of this amendment, that it did not accept it. In this case, the payment service provider also specifies that the payment service user has the right to terminate the framework contract immediately and without charge, before the proposed effective date of the amendment.
§ 2. Changes in interest or exchange rates may apply immediately and without notice, provided that the framework contract provides for this right and that the changes are based on the rates of interest or reference exchange agreed in accordance with section 14, 3°, (b) and (c).
The payment service user shall be informed of any change in the interest rate as soon as possible, in accordance with the terms set out in Article 13, § 1^erunless the parties agree on a particular frequency or terms of the provision or provision of the information. However, changes in interest or exchange rates that are more favourable to users of payment services may be applied without notice.
§ 3. Changes in interest or exchange rates applied to payment transactions are implemented and calculated in a neutral manner that does not discriminate against users of payment services.
Art. 17. § 1^er. The payment services user may, at any time, terminate the framework contract without charge and with immediate effect, unless a maximum notice period of one month has been agreed.
If the framework contract provides, the payment service provider may, as provided for in Article 13, § 1^er, terminate a framework contract for an indefinite period, with a notice of at least two months.
§ 2. The fees regularly charged for the provision of payment services are payable by the user of payment services only on the prorated basis of the period after the end of the contract. If they have been paid in advance, these costs are refunded without delay on a pro-rata basis from the month following the date of termination.
The payment service provider will pay to the payment service user, at no additional cost, the positive balance of the payment account including all interest to which it is entitled under the legal and regulatory provisions as well as general terms and conditions or will pay it on a payment account of a payment service provider.
After the close of a payment account, the payment service provider is required to reimburse the management fees paid by the payment service user on an annual basis for the payment account, in the amount of the full number of calendar months from the month following the closing date of the account until the end of the period for which the management fees were paid.
§ 3. This section also applies to savings accounts referred to in section 2 of the Royal Decree of 27 August 1993 for the execution of the Income Tax Code 1992.
Section 3. - Individual payment transactions
Sub-section 1^re. - Information before the execution of the payment transaction
Art. 18. For any individual payment transaction under a framework contract initiated by the payer, the payment service provider shall, at the request of the payer and prior to the payment transaction, provide explicit information on its maximum delivery time and on fees that must be paid by the payer and, where applicable, the breakdown of the amounts of such costs.
Sub-section 2. - Information after the execution of the payment transaction
Art. 19. § 1^er. After the amount of an individual payment transaction has been debited from the payer's account or, where the payer does not use a payment account, after receipt of the payment order, the payer's payment service provider shall, without delay and in accordance with the terms and conditions specified in Article 13, § 1^erthe following information:
1° a reference allowing the payer to identify each payment transaction and, where applicable, information relating to the recipient;
2° the amount of the payment transaction expressed in the currency in which the payor's payment account is debited or in the currency used in the payment order;
3° the amount of all fees applied to the payment transaction and, if applicable, their breakdown, or interest due by the payer;
4° where applicable, the exchange rate applied to the payment transaction by the payor's payment service provider and the amount of the payment transaction after that money conversion;
5° the date of the debit or the date of receipt of the order of payment.
§ 2. A framework contract may provide for a condition that the information referred to in § 1^er are provided or made available periodically, at least once a month, and in accordance with agreed terms and conditions that allow the payer to store and reproduce the information on an identical basis, so as to allow the payer to reasonably monitor the status of its expenditures.
§ 3. The King may, by derogation from § 2 and in accordance with the terms that it determines, by order deliberately in the Council of Ministers, prescribing that the payment service provider must provide free of charge to the payer's request the information referred to in § 1^er paper once a month.
Art. 20. § 1^er. After performing an individual payment transaction, the recipient's payment service provider shall provide the recipient without delay and in accordance with the terms and conditions provided for in Article 13, § 1^erthe following information:
1° a reference allowing the recipient to identify the payment transaction and, where applicable, the payer, as well as any information provided during the payment transaction;
2° the amount of the payment transaction expressed in the currency in which the beneficiary's payment account is credited;
3° the amount of all fees applied to the payment transaction and, where applicable, their breakdown, or interest due by the beneficiary;
4° where applicable, the exchange rate applied to the payment transaction by the recipient's payment service provider and the amount of the payment transaction prior to that monetary conversion;
5° the credit value date.
§ 2. A framework contract may provide for a condition that the information referred to in § 1^er must be provided or made available periodically, at least once a month, and in accordance with agreed terms and conditions that allow the recipient to store and reproduce the information on an identical basis, so as to allow the recipient to reasonably monitor the status of its expenditures.
§ 3. The King may, by derogation from § 2 and in accordance with the manner in which he determines, by order deliberately in the Council of Ministers, prescribing that the payment service provider must provide free of charge to the request of the beneficiary the information referred to in § 1^er paper once a month.
Section 4. - Derogatory provisions
Art. 21. § 1^er. In the case of payment instruments that, in accordance with the framework contract, relate exclusively to payment transactions not exceeding 30 euros per unit or, either have a limit of expenditures of 150 euros, or store funds that do not exceed at any time 150 euros, this chapter will apply to the extent described below:
1° by derogation from sections 13, 14 and 18, the payment service provider shall provide the payer with only information on the main features of the payment service, including how the payment instrument may be used, liability, fees collected and other concrete information necessary to make a decision in the knowledge of the case and an indication of where the other information and conditions defined in section 14 are readily available;
2° it may be agreed that, by derogation from Article 16, the payment service provider is not required to propose a modification of the terms of the framework contract in the manner provided for in Article 13, § 1^er;
3° it may be agreed that, by derogation from articles 19 and 20, after execution of a payment transaction:
(a) the payment service provider shall provide or make available only a reference allowing the payment service user to identify the payment transaction, its amount and fees and/or, in the event of multiple payment transactions of the same type to the same beneficiary, only information concerning the total amount and costs of such payment transactions;
(b) the payment service provider is not required to provide or make available the information referred to in (a) if the payment instrument is used anonymously or if the payment service provider is otherwise technically unable to provide it. However, the payment service provider provides the payer with the opportunity to verify the amount of the funds stored.
§ 2. For national payment transactions, the King may, by order deliberately in the Council of Ministers, reduce or double the amounts referred to in § 1^erParagraph 1^er and for prepaid payment instruments increase up to 500 euros.
CHAPTER 4. - Common provisions
Art. 22. § 1^er. Payments are made in the currency agreed by the parties.
§ 2. When a money conversion service is proposed prior to the initiation of the payment transaction by a third party to the framework contract and when the money conversion service is proposed at the point of sale or by the beneficiary, the party proposing it to the payer is required to inform the payer of all fees applied, as well as the exchange rate that will be used for the purpose of the conversion of the payment transaction.
The payer accepts the money conversion service offered on this basis.
Art. 23. When, for the purpose of using a particular payment instrument, the beneficiary requests a fee or offers a reduction, the recipient shall notify the payer before the initiation of the payment transaction.
When, for the purpose of using a particular payment instrument, a payment service provider or a third party requests fees, the payment service user shall inform the payment service user before the initiation of the payment transaction.
Art. 24. Where the contract for payment services referred to in Article 5, first paragraph, is entered into remotely, the information referred to in Articles 8, 9, 13 and 14, replaces the information referred to in Article 83ter, § 1^er, of the Act of 14 July 1991 on trade practices and information and consumer protection, with the exception of 2°, (c) to (g), 3°, (a), (d) and (e), and 4°, (b).
Art. 25. § 1^er. The payment service provider does not charge the payment services user to provide information under this title.
§ 2. The payment service provider and the payment service user may agree to charge fees for additional information, for information communicated more frequently or for information transmitted by other means of communication than those provided by the framework contract and provided at the request of the payment service user.
Where the payment service provider may, in accordance with the preceding paragraph, charge fees, the payment service provider shall be appropriate and in accordance with the actual costs incurred by the payment service provider.
Art. 26. The burden of proof of the fulfillment of the information obligations referred to in this Title is on the payment service provider
Art. 27. The parties may agree not to apply, in whole or in part, the provisions of this title unless the user of payment services is a consumer.
PART III. - Rights and obligations related to the provision and use of payment services
CHAPTER 1^er. - Authorization of payment transactions
Section 1^re. - Consent to the execution of payment transactions and possible limitations of the use of payment instruments
Art. 28. § 1^er. A payment transaction is deemed to be authorized if the payer has consented to the execution of the payment order.
A payment transaction may be previously authorized by the payer or after its execution if the payer and its payment service provider have so agreed.
§ 2. Consent to the execution of a payment transaction or a series of payment transactions is given in the agreed form between the payer and its payment service provider and in accordance with the agreed procedure.
In the absence of such consent, the payment transaction is deemed to be unauthorized.
§ 3. Consent may at any time be withdrawn by the payer, but in no case after the noticeable moment referred to in section 42.
Consent to the execution of a series of payment transactions may also be withdrawn with the effect that any subsequent payment transaction must be deemed unauthorized.
Art. 29. § 1^er. The realization of the domicile requires the award of a warrant by the payer to, as the case may be, one or more of the following persons:
1° the beneficiary;
2° the recipient's payment service provider;
3° the payor's payment service provider.
A copy must be delivered to the payer.
§ 2. Even if the term referred to in § 1^erParagraph 1^er, is not repeated in the same instrumentum as the principal contract of which it guarantees execution, the mandate shall meet at least the following conditions:
1° express consent of the payer;
2° the power of attorney to be given must refer expressly to the underlying contract which in turn determines the scope of the receivables domiciled in respect of nature, maturity and, if possible, the fair amount.
The domicile can only be valid if the payer has previously been informed of the underlying contract.
§ 3. Without prejudice to the application of section 38, § 3, if the fair amount or the debit date is not determined at the conclusion of the domicile, the beneficiary shall notify the payer at the agreed date, within a reasonable period prior to the initiation of each payment transaction.
§ 4. A domicile and mandate attached to it may be terminated by each party at any time by notification to the contracting party.
The termination of residence by the payer is valid and enforceable to all its agents when the payer notifies it either to its creditor or to its payment service provider if the latter was expressly agreed.
Art. 30. § 1^er. When a specific payment instrument is used to give consent, the payer and its payment service provider may agree on spending limits for payment transactions performed through the payment instrument.
§ 2. If the framework contract provides, the payment service provider may reserve the right to block the payment instrument for objectively motivated reasons relating to the security of the payment instrument, the presumption of an unauthorized or fraudulent use of the payment instrument, or, if it is a payment instrument with a credit contract, at the significantly increased risk that the payor would have to pay.
In these cases, the payment service provider informs the payer, in the manner agreed and without prejudice to the application of section 59, § 3, of the Consumer Credit Act of 12 June 1991, the blocking of the payment instrument and the reasons for the blocking, if possible before the payment instrument is blocked and no later than immediately thereafter.
The provision of the information referred to in the preceding paragraph is not required if it is counterbalanced by objectively motivated or prohibited security reasons under other applicable legislation.
The payment service provider unlocks the payment instrument or replaces it with a new payment instrument as long as the reasons for blocking no longer exist.
Section 2. - Payment instruments obligations
Art. 31. § 1^er. The user of payment services authorized to use a payment instrument has the following obligations:
1° it uses the payment instrument in accordance with the conditions governing the issuance and use of this payment instrument;
2° where he is aware of the loss, theft, the diversion or any unauthorized use of his payment instrument, he shall promptly inform his payment service provider or the entity indicated by the payment service provider.
§ 2. Pursuant to § 1^er, 1°, the payment service user takes, as soon as he receives a payment instrument, all reasonable measures to preserve the security of the payment instrument and its personal security devices.
Art. 32. The payment service provider issuing a payment instrument has the following obligations:
1° it ensures that custom security devices of any payment instrument are not accessible to other parties than the user of payment services authorized to use this instrument, without prejudice to the obligations of the user of payment services referred to in section 31;
2° it refrains from sending any unsolicited payment instrument, except where a payment instrument already given to the payment service user must be replaced;
3° it ensures the availability, at any time, of appropriate means enabling the user of payment services to make the notification referred to in Article 31, § 1^er, 2°, or to request the release in accordance with Article 30, § 2, last paragraph; the payment service provider shall, upon request, provide the payment service user, for eighteen months from the date of notification, with the means to prove that the payment service provider has made the notification;
4° it prevents any use of the payment instrument after a notification made under Article 31, § 1^er2°;
5° it bears the risk associated with sending a payment instrument or any means that allows the use of it, in particular any personal security device of it.
Art. 33. The payment service provider must maintain an internal register of payment transactions for a period of at least five years from the execution of the transactions.
This provision does not prejudice other legal provisions in the provision of supporting documents.
Section 3. - Notification and dispute in the event of unauthorized or not properly executed payment transactions
Art. 34. The user of payment services obtains, from the payment service provider, the correction of a transaction only if he promptly reports to his payment service provider that he has found an unauthorized or not properly executed payment transaction giving rise to a claim, including a claim referred to in sections 50 to 52, and no later than thirteen months after the date of debit or credit, unless, where applicable,
Art. 35. § 1^er. When a payment service user denies having authorized a payment transaction that has been performed, or claims that the payment transaction has not been performed correctly, it is the responsibility of the payment service provider to prove that the transaction in question has been authenticated, duly recorded and recorded and has not been affected by a technical or other deficiency.
§ 2. When a user of payment services denies having authorized a payment transaction that has been performed, the use of a payment instrument, as recorded by the payment service provider, is not necessarily sufficient as such to prove that the payment transaction has been authorized by the payer or that the payer has acted fraudulently or has not met, intentionally or as a result of serious negligence, 31.
§ 3. The King may impose the rules to which proof of authentication, registration and accounting of the disputed payment transaction must be satisfied. It may make a distinction based on the nature of the payment transaction and the payment instrument used to initiate a payment order. The King may also enact the applicable sanctions in the event of non-compliance with the rules so imposed.
Section 4. - Liability for unauthorized payment transactions
Art. 36. Without prejudice to the application of section 34, the payer's payment service provider must, in the event of an unauthorized payment transaction, after a prima facie check for fraud in the payor's head, immediately reimburse the payer for the amount of this unauthorized payment transaction and, if applicable, restore the debited payment account in the condition that it would have been found if the unauthorized payment transaction had not increased interest, if any,
In addition, the payer's payment service provider must reimburse any other possible financial consequences, including the amount of costs incurred by the licensee for the determination of compensation.
Art. 37. § 1^er. By derogation from Article 36, the payer shall bear, up to 150 euros, up to the notification made in accordance with Article 31, § 1^er, 2°, losses related to any unauthorized payment transaction resulting from the use of a lost or stolen payment instrument or, if the payer has not managed to preserve the security of his personal security devices, the diversion of a payment instrument.
The payer shall bear all losses caused by unauthorized payment transactions if these losses result either from a fraudulent act on his or her part, or from the fact that he has not, intentionally or as a result of serious negligence, complied with one or more of his or her obligations under section 31. In such cases, the maximum amount referred to in paragraph 1^er does not apply.
Where the payer has not acted fraudulently or intentionally failed to comply with its obligations under section 31, the payer shall not, by derogation from the preceding paragraphs, bear any loss in the following cases:
1° if the payment instrument has been used without physical presentation and without electronic identification;
2° if the payment instrument was copied by a third party or was unduly used as long as the payer was, at the time of the disputed transaction, in possession of the payment instrument.
§ 2. Unless the payment service provider demonstrates that the payer has acted fraudulently, the payer does not bear any financial consequences resulting from the use of a lost, stolen or diverted payment instrument that occurred after the notification provided for in section 31, § 1^erTwo.
§ 3. The burden of proof in respect of fraud, intent or serious negligence lies with the payment service provider.
These include serious negligence under § 1^er, the fact, for the payer to note his or her personal security devices, such as his or her personal identification number or any other code, in a readily recognizable form, and in particular on the payment instrument or on an object or document retained or carried by the payer with the payment instrument, as well as the fact that he or she has not notified the payment service provider, or to the entity indicated by that person, the loss or loss of
For the assessment of negligence, the judge shall take into account all circumstances of fact. The production by the payment service provider of the registrations referred to in section 35 and the use of the payment instrument with the known code of the only payment service user does not constitute a sufficient presumption of the negligence of the payment service provider.
Section 5. - Payment transactions initiated by or via the recipient
Art. 38. § 1^er. The payer's payment service provider must reimburse the payer for an authorized payment transaction initiated by or via the recipient, which has already been executed, provided that the following conditions are met:
1° the authorization did not indicate the exact amount of the payment transaction when it was given, and
2° the amount of the payment transaction exceeded the amount to which the payer could reasonably expect, taking into account the profile of his past expenditures, the terms and conditions set out in the framework contract and the relevant circumstances of the case.
÷ the request of the payment service provider, the payer provides factual elements in relation to these conditions.
The refund is the total amount of the payment transaction executed.
For home payments, the payer and his or her payment service provider may agree in the framework contract that the payer is entitled to reimbursement by his or her payment service provider even if the terms and conditions relating to the reimbursement provided in the first paragraph are not met.
§ 2. Pursuant to § 1^erParagraph 1^er, 2°, however, the payer may not invoke reasons related to a currency transaction if the reference exchange rate agreed with its payment service provider in accordance with Articles 9, § 1^er, 4° and 14, 3°, b), was applied.
§ 3. It may be agreed in the framework contract between the payer and its payment service provider that the payer is not entitled to a refund provided that:
1° he gave his consent to the execution of the payment transaction directly to his payment service provider, and
2° the information relating to the future payment transaction was provided to the payer or made available to the payer in the manner agreed, at least four weeks before the due date, by the payment service provider or by the beneficiary.
Art. 39. § 1^er. The payer may request the refund, referred to in section 38, of an authorized payment transaction initiated by or via the recipient for a period of eight weeks from the date the funds were debited.
§ 2. Within ten working days after receipt of the refund request, the payment service provider shall be reimbursed the total amount of the payment transaction, or shall justify its refusal to refund, indicating the organizations that the payer may then seize, in accordance with sections 72 to 75, if he does not accept the justification given.
The right of the payment service provider referred to in paragraph 1^erto refuse reimbursement does not apply in the case referred to in section 38, § 1^erlast paragraph.
CHAPTER 2. - Implementation of payment transactions
Section 1^re. - Payment orders and transferred amounts
Art. 40. § 1^er. The time of receipt of the payment order is the time when the payment order, which is transmitted directly by the payer or indirectly by or via a beneficiary, is received by the payer's payment service provider. If the time of receipt is not a business day for the payer's payment service provider, the payment order is deemed to have been received on the next business day.
The payment service provider may establish a time limit, close to the end of a business day, beyond which any payment order received is deemed to have been received on the next business day.
§ 2. If the payment service user who initiates the payment order and the payment service provider agrees that the execution of the payment order will begin either on a given day or at the end of a specified period, or on the day the payer has made the funds available to the payment service provider, the time of receipt under sections 45 and 78 is deemed to be the agreed day. If the agreed day is not a business day for the payment service provider, the payment order is deemed to have been received on the next business day.
Art. 41. § 1^er. When the payment service provider refuses to execute a payment order, the refusal and, if possible, the reasons for this refusal and the procedure to be followed to correct any factual error resulting from it are notified to the payment service user, without prejudice to the application of section 12 of the Act of 11 January 1993 on the prevention of the use of the financial system for the purposes of money laundering and the prohibition of the financing of terrorism or
The payment service provider shall provide the notification or make it available in accordance with the agreed terms, as soon as possible and, in any case, within the time limits specified in Articles 45 and 78.
The framework contract may provide for the possibility for the payment service provider to charge fees for such notification if the refusal is objectively justified.
§ 2. Where all the conditions set out in the payer's framework contract are met, the payer's payment service provider may not refuse to execute an authorized payment order, whether the payment order is initiated by a payer or by or via a beneficiary, without prejudice to the application of section 12 of the Act of 11 January 1993 relating to the prevention of the use of the financial system for the purposes of money laundering and the prohibition of the financing of terrorism or
§ 3. For the purposes of sections 45, 50, 51 and 78, an order of payment whose execution has been refused is deemed not received.
Art. 42. The payment service user may not revoke a payment order once it has been received by the payer's payment service provider, unless otherwise provided in this section.
When the payment transaction is initiated by or via the beneficiary, the payer may not revoke the payment order after transmitting the payment order or giving consent to the execution of the payment transaction to the beneficiary.
However, in the event of domicile and without prejudice to the right to reimbursement, the payer may revoke the payment order by the end of the business day preceding the agreed day for the flow of funds.
In the case referred to in Article 40, § 2, the user of payment services may revoke a payment order by the end of the business day before the agreed day.
After expiry of the deadlines referred to in subparagraphs 1^er at 4, the payment order can only be revoked if the payment service user and his payment service provider have so agreed. In the cases referred to in paragraphs 2 and 3, the consent of the recipient is also required. If the framework contract provides, the payment service provider may charge fees for the exercise of this additional revocation right.
Art. 43. The payer's payment service provider, the recipient's payment service provider and the payment service provider's intermediaries transfer the total amount of the payment transaction and refrain from taking costs on the transferred amount.
However, the recipient and its payment service provider may agree that the payment service deducts its costs from the amount transferred before crediting the recipient. In this case, the total amount of the payment transaction and the fees are separated in the information given to the recipient.
If costs other than those referred to in paragraph 2 are deducted from the amount transferred, the payer's payment service provider shall ensure that the recipient receives the total amount of the payment transaction initiated by the payer. In the event that the payment transaction is initiated by or via the recipient, its payment service provider ensures that the recipient receives the total amount of the payment transaction.
Section 2. - Delivery time and date value
Art. 44. § 1^er. This section applies:
1° to payment transactions in euros;
2° to payment transactions resulting in a single conversion between the euro and the official currency of a European Member State not falling within the euro area, provided that the required conversion is made in the Member State not falling within the euro area and that, in the case of cross-border payment transactions, the cross-border transfer is made in euros.
§ 2. This section applies to other payment transactions, unless the payment service user and the payment service provider agree otherwise, in section 48, to which the parties cannot derogate.
When the payment service user and its payment service provider agree to a longer period than those set out in sections 45 and 78 for intra-community payment transactions within the European Union, this period may not exceed four working days from the time of receipt as defined in Article 40.
Art. 45. § 1^er. The payer's payment service provider shall ensure that, after the time of receipt as defined in section 40, the amount of the payment transaction is credited to the recipient's payment service provider's account by the end of the next business day. This period may be extended by an additional working day in the case of payment transactions initiated on paper.
For the execution of national payment transactions initiated electronically between two payment accounts where the payer and the recipient's payment service provider is the same person, the period referred to in the preceding paragraph is reduced to the end of the same business day in which the time of receipt as defined in section 40.
§ 2. The recipient's payment service provider assigns a value date to the payment transaction and makes the amount available to the recipient's payment account after the payment service provider has received the funds in accordance with section 48.
§ 3. The recipient's payment service provider shall forward a payment order initiated by or via the recipient to the payer's payment service provider within the time agreed between the recipient and the recipient's payment service provider, in order to allow the payment, with respect to the payment, on the agreed due date.
Art. 46. Where the recipient is not a recipient of a payment account with the payment service provider, the funds are made available to the recipient by the payment service provider who receives the funds to the recipient within the time specified in sections 45 and 78.
Art. 47. When a consumer pays cash on a payment account to this payment service provider, in the currency of this payment account, the payment service provider shall ensure that the amount paid is made available and receives a value date immediately after the time of receipt of these funds.
When the payment service user is not a consumer, the amount is made available and receives a value date no later than the working day following the receipt of funds.
Art. 48. § 1^er. For the recipient's payment account, the credit value date is not later than the business day in which the amount of the payment transaction is credited to the recipient's payment service provider's account.
The recipient's payment service provider shall ensure that the amount of the payment transaction is made available to the recipient immediately after that amount has been credited to the recipient's payment service provider's account.
§ 2. For the payer's payment account, the debit value date is not earlier when the amount of the payment transaction is debited from this payment account.
Section 3. - Liability in the event of an incorrect single identifier, non-execution or incorrect execution
Art. 49. § 1^er. A payment order executed in accordance with the single identifier shall be deemed to be duly executed in respect of the beneficiary indicated by the single identifier.
§ 2. If the single identifier provided by the payment service user is inaccurate, the payment service provider is not responsible for sections 50 and 51 of the non-performance or improper execution of the payment transaction.
However, the payer's payment service provider is making every effort, to the extent reasonably practicable, to recover funds in the payment transaction.
If the framework contract provides, the payment service provider may charge recovery fees to the payment service user.
§ 3. If the payment service user provides information in addition to those defined in Articles 9, § 1^er, 1° or 14, 2°, b), the payment service provider is only responsible for the execution of the payment transaction in accordance with the unique identifier provided by the payment service user.
Art. 50. § 1^er. When an order of payment is initiated by the payer, its payment service provider is, without prejudice to the application of sections 34, 49, §§ 2 and 3, and 54, responsible for the proper execution of the payment transaction in respect of the payer.
Derogation from paragraph 1^er, the recipient's payment service provider is responsible for the successful execution of the payment transaction in respect of the recipient in the event that the payer's payment service provider can demonstrate to the payer and, where applicable, to the recipient's payment service provider that the recipient's payment service provider has received the amount of the payment transaction in accordance with section 45.
§ 2. Where the payer's payment service provider is responsible under § 1^er, it shall promptly return to the payer the amount of the unexecuted or improperly executed payment transaction and, if necessary, restore the payment account debited in the situation that would have prevailed if the wrong payment transaction had not taken place.
Where the recipient's payment service provider is responsible under § 1^er, it shall immediately make the amount of the payment transaction available to the recipient and, if necessary, credit the payment account of the beneficiary of the corresponding amount.
§ 3. In the case of a non-executed or misexecuted payment transaction and where the payment order is initiated by the payer, the payment service provider shall, immediately upon request of the payer, make every liability determined under this section to trace the payment transaction and notify the result of his search to the payer.
Art. 51. § 1^er. Where a payment order is initiated by or via the beneficiary, the payment service provider shall, without prejudice to sections 34, 49, §§ 2 and 3, and 54, be liable in respect of the beneficiary of the correct transmission of the order of payment to the payer's payment service provider, in accordance with section 45, paragraph 4.
When the recipient's payment service provider is responsible under the preceding paragraph, the recipient immediately forwards the payment order to the payer's payment service provider.
§ 2. The recipient's payment service provider is, without prejudice to the application of sections 34, 49, §§ 2 and 3, 54, responsible for the beneficiary, the processing of the payment transaction in accordance with its obligations under section 48.
When the recipient's payment service provider is responsible under the preceding paragraph, it ensures that the amount of the payment transaction is made available to the recipient immediately after the amount has been credited to the recipient's payment service provider's account.
§ 3. In the case of an unexecuted or improperly executed payment operation for which the recipient's payment service provider is not liable under §§ 1^er and 2 of this section, the payer's payment service provider is responsible for the payer.
The payer's payment service provider whose liability under the preceding paragraph is incurred shall return to the payer, if necessary and without delay, the amount of the unexecuted or misexecuted payment transaction and shall promptly restore the debited payment account in the situation that would have prevailed if the wrong payment transaction had not taken place.
§ 4. In the case of a non-executed or misexecuted payment transaction and where the payment order is initiated by or via the beneficiary, the payment service provider shall immediately, upon request, make every liability determined under this section, seek to trace the payment transaction and notify the beneficiary of the result of its search.
Art. 52. Payment service providers are liable, in respect of their respective payment services users, for the fees they are responsible for and for the interest incurred by the payment service user as a result of the non-performance or improper execution of the payment transaction.
Similarly, the user of payment services is entitled to additional compensation for other possible financial consequences than those provided for in this section.
Art. 53. Where the liability of a payment service provider under sections 50 to 51 is attributable to another payment service provider or an intermediary, the payment or intermediary service provider shall compensate the first payment service provider for any losses incurred or any amounts paid under sections 50 and 51.
Additional financial compensation may be determined in accordance with the agreements between payment service providers and/or intermediaries and in accordance with the law applicable to the agreement they have entered into.
Art. 54. Responsibility under Chapter 1^er and 2 of this title does not apply in case of force majeure or where the payment service provider is bound by other legal obligations under national legislation or by the European Union.
CHAPTER 3. - Common provisions
Art. 55. When the user of payment services is not a consumer, the parties may decide that articles 28, § 3, 29, 35, 37 to 39, 42, 50 to 52, and 56, § 1^er, do not apply, in whole or in part. The parties may also agree on a separate period from that set out in section 34.
The provisions of this title do not affect other legal provisions providing for additional rights and obligations with respect to the granting of credit, including those covered by the Consumer Credit Act of 12 June 1991.
Art. 56. § 1^er. The payment service provider may not, under this title, and unless otherwise provided, charge fees to the payment service user for the performance of his or her obligations.
By derogation from the preceding paragraph, the payment service provider may charge fees in the cases referred to in Articles 41, § 1^er42, paragraph 5, or 49, § 2, provided that these costs are agreed in the framework contract between the payment service user and the payment service provider and to the extent that they are reasonable and in relation to the actual costs incurred by the payment service provider.
§ 2. When a payment transaction does not involve a monetary conversion, the payer and the recipient pay, each for their part, the fees paid by their respective payment service provider.
§ 3. The payment service provider does not prevent the recipient from applying fees or proposing a reduction to the payer for the use of a particular payment instrument.
By derogation from the preceding paragraph, the King may, taking into account the need to encourage competition and promote the use of effective means of payment, by order deliberately in the Council of Ministers, prohibit or limit the right of the beneficiary to claim compensation for payment transactions using a payment instrument.
The King may also, by order deliberately in the Council of Ministers, set a maxima for allowances, regardless of their qualification or form, claimed by the payment service provider to the recipient for the provision of equipment to facilitate the provision of payment services using a payment instrument.
Art. 57. § 1^er. In the case of payment instruments that, in accordance with the framework contract, relate exclusively to payment transactions not exceeding 30 euros per unit or that have a expenditure limit of 150 euros, or that store funds that do not exceed at any time 150 euros, payment service providers may agree with their payment services users that:
1° Articles 31, § 1^er, 2°, 32, 3° and 4°, and 37, §2, do not apply if the payment instrument does not allow the blocking or prevention of further use of the payment instrument;
2° Articles 35, 36, 37, § 1^erParagraphs 1^er and 2, do not apply if the payment instrument is used anonymously or if the payment service provider is not in a position, for other reasons, inherent in the payment instrument, to demonstrate that a payment transaction has been authorized;
3° by derogation from Article 41, § 1^er, the payment service provider is not obliged to notify the payment service user of the refusal of the payment order if the non-performance is within the context;
4° by derogation from section 42 the payer may not revoke the order of payment after transmitting the order of payment or giving his consent to the execution of the payment transaction to the beneficiary;
5° by derogation from sections 45, 46, and 78, other time limits apply.
§ 2. For national payment transactions, the King may, by order deliberately in the Council of Ministers, reduce or double the amounts referred to in § 1^erParagraph 1^er, and for prepaid payment instruments increase them up to 500 euros.
§ 3. Sections 36 and 37 also apply to electronic currency within the meaning of Article 3, § 1^er, 7° of the Act of 22 March 1993 relating to the status and control of credit institutions, unless the payer's payment service provider does not have the ability to block the payment account or block the payment instrument and the instrument meets the terms of use referred to in the introductory provision of § 1^er.
CHAPTER 4. - Data protection
Art. 58. Without prejudice to the application of the Privacy Protection Act of 8 December 1992 in respect of personal data processing, the processing of personal data by payment systems and payment service providers is permitted where necessary to ensure the prevention, research and detection of payments fraud.
The King may, by order deliberately in the Council of Ministers, after the advice of the Commission on the Protection of Privacy, determine more precisely the modalities of treatment for purposes as defined and legitimized in this Act.
PART IV. - Procedures for extra-judicial complaints and appeals for dispute resolution
CHAPTER 1^er. - End action
Art. 59. Cessation action, referred to in section 4 of the Act of 22 December 2009 amending the Act of 2 August 2002 on the supervision of the financial sector and financial services, and the establishment of action on termination of offences under the Payment Services Act, is formed in accordance with the rules laid down in the law on trade practices in cessation action.
CHAPTER 2. - From the warning procedure
Art. 60. Where it is found that an act constitutes an offence to this Act, to any of its enforcement orders or that it may give rise to an action on termination, the officer the Minister shall commission under section 72, § 1^er, may send a warning to the offender to put an end to that act.
The notice shall be notified to the offender within three weeks of the date of the finding of the facts, by registered letter to the position with acknowledgement of receipt or by a copy of the notice of the facts.
The warning mentions:
1° the facts charged and the legal provisions infringed;
2° the period in which it must be terminated;
3° that in the event that the warning is not given, either a cessation action will be formed, or the agents commissioned under Article 72, § 1^er, or pursuant to section 74, may, respectively, notify the Crown Prosecutor or apply the settlement by way of transaction referred to in section 74 or the suspension or withdrawal of the authorization to provide the payment services will be required from the competent prudential control authority;
4° that the offender's commitment to ending the offence may be made public.
CHAPTER 3. - Sanctions
Section 1^re. - Civil sanctions
Art. 61. Are prohibited and null in full right:
1° any clause by which the user of payment services waives, even in part, for the benefit of the rights provided for in this Act;
(2) any clause by which the payment service provider is exempt, even in part, from the obligations under this Act;
3° the terms and conditions or combinations of clauses and conditions that are intended to provide the payment service user with proof of compliance with all or part of the obligations referred to in this Act, which are the responsibility of the payment service provider.
Art. 62. Unless it proves that the payer has acted fraudulently, the payment service provider remains responsible for the user of payment services, for all the consequences resulting from the use of a payment instrument by an unauthorised third party in the event of non-compliance by the payment service provider with the obligations it has under sections 14, 5°, a) and 32, 1° and 3°.
Art. 63. In the event of non-compliance by the payment service provider with the obligations arising from articles 13, 14, 2° to 6°, 15 and 16, 21, 23, paragraph 2, 25, 29, 32, 36, paragraph 1^er, 38, 39, § 2, 40 and 41, 43, 45 to 48, 50 to 52, 56, 57 and 78, the user of payment services may, without prejudice to the sanctions of common law, by registered letter mailed and motivated, terminate without delay and without costs or penalties the framework contract from the time he knew or should have known of the non-compliance with these obligations.
Section 2. - Criminal sanctions
Art. 64. Are punished by a fine of 250 to 100,000 euros, those who commit an offence to the provisions:
1° of sections 8, 9 and 10, relating to information requirements for isolated payment transactions;
2° of Articles 13 and 14 relating to the information requirements of the framework contracts for payment services and Article 15 relating to access to information and the conditions of the framework contract;
3° of Article 16, concerning the modification of the terms of the framework contract;
4° of Article 17, concerning the termination of the framework contract and its consequences;
5° of sections 18, 19 and 20 relating to information requirements for individual payment transactions under the framework contract;
6° of Article 21 relating to information requirements for payment instruments relating to low amounts and electronic currency;
7° of section 23 relating to information requirements for additional costs or reductions for the use of a given payment instrument;
8° of section 25, relating to information costs;
9° of Article 28 concerning the authorization of payment transactions and Article 29 relating to domicile;
10° of Article 32 relating to the obligations of the payment service provider related to payment instruments;
11° of articles 36 and 37, §§ 1^er 4, relating to the total and shared responsibility of the payment service provider in the event of unauthorized payment transactions;
12° of articles 38, § 1^er 39, § 1^er, relating to refunds of payment transactions initiated by or via the recipient;
13° of Articles 40 and 41 concerning the receipt and refusal of payment orders by the payment service provider;
14° of section 43 relating to amounts transferred and received and to the collection of costs;
15° of Articles 45 to 48, and 78, relating to the period of execution and the date of the payment transactions;
16° of sections 50 to 52 relating to the liability of the payment service provider for the failure to perform or misrepresent the payment transaction;
17° of Article 56, §§ 1^er and 2, relating to the fees applied by the payment service provider and section 56, § 3, relating to the additional costs or reductions for the use of a given payment instrument applied by the beneficiary;
18° of section 57, relating to requirements and liability for payment instruments relating to low amounts and electronic currency;
19° of Regulation (EC) No 924/2009 of the European Parliament and Council of 16 September 2009 concerning cross-border payments in the Community and repealing Regulation (EC) No 2560/2001.
Art. 65. § 1^er. Is punishable by imprisonment from eight days to one year and a fine of 1,000 to 100,000 euros or one of these penalties only:
1° those who do not comply with a judgment or a judgment rendered under section 4 of the Act of 22 December 2009 amending the Act of 2 August 2002 on the supervision of the financial sector and the establishment of action on termination of offences under the Payment Services Act, following an action on termination;
(2) those who voluntarily prevent or hinder the execution of the mission of the persons referred to in sections 72 to 74 with a view to seeking and detecting offences or breaches of the provisions of this Act;
3° those who voluntarily, in person or by person interposed, delete, conceal or lay fully or partially the posters affixed pursuant to sections 59 and 66, and section 4 of the Act of December 22, 2009 amending the Act of August 2, 2002 on the supervision of the financial sector and the establishment of the action on termination of the offences to the law on payment services.
Art. 66. When the facts submitted to the court are the subject of a cessation action, it can only be ruled on the criminal action after a decision, in force of a finding regarding this cessation action has been rendered.
Art. 67. Without prejudice to the application of the usual recidivism rules, the penalty provided for in sections 64 and 65 is doubled in the event of an offence, acting within five years of a conviction cast in force of a sentence deemed pronounced by the head of the same offence.
Art. 68. The court may order the posting of the judgment or summary that it prepares during the period that it determines both outside and inside the offender's institutions and at the expense of the offender, as well as the publication of the judgment or summary at the offender's expense through the newspapers or in any other manner; it may also order the confiscation of the illicit profits realized in favour of the offence.
Art. 69. Corporations and associations with legal personality are civilly liable for convictions for damages, fines, fees, confiscations, restitution and monetary penalties imposed against their organs or for offences under this Act.
The same is true of members of all trade associations without legal personality, when the offence was committed by a partner, manager or manager, on the occasion of an operation entering into the activity of the association. However, the civilly responsible partner is personally held up to the sums or values it has withdrawn from the transaction.
These societies, associations and members may be quoted directly before the criminal court by the public prosecutor or the civil party.
Art. 70. The provisions of Book I^er the Criminal Code, including Chapter VII and Article 85, shall apply to offences covered by this Act.
By derogation from section 43 of the Criminal Code, the court shall, when making a conviction for any of the offences referred to in this Act, determine whether special confiscation is warranted. This provision is not applicable in the case of recidivism referred to in section 67.
Upon the expiration of a period of ten days from the date of delivery, the Registrar of the Court or the Court is required to bring to the attention of the Minister who has the Economic Affairs in his or her powers, by ordinary letter, any judgment or judgment relating to an offence referred to in this Act.
The Clerk is also required to promptly notify the Minister who has the Economic Affairs of any appeal against such a decision.
Section 3. - Administrative sanctions
Art. 71. Where the competent officials referred to in Article 72, § 1^er, note that a payment service provider does not comply with one or more provisions of this Act, they communicate these findings to the control authority that has granted the authorization to provide payment services. This supervisory authority examines whether and to what extent administrative law sanctions or other special measures must be taken against the payment service provider in accordance with the specific status of the payment service provider.
CHAPTER 4. - Research and recognition of acts prohibited by this Act
Art. 72. § 1^er. Without prejudice to the duties of judicial police officers, the officials commissioned by the Minister with the Economic Affairs in his or her powers are competent to seek and determine the offences referred to in sections 64 and 65.
Verbatim records by these officers are held to prove otherwise.
A copy is sent to the offender, by registered letter to the position with acknowledgement of receipt, within 30 days of the date of the findings.
§ 2. In the performance of their duties, the agents referred to in § 1^er may:
1° enter, during the usual hours of opening or working, in the workshops, buildings, adjacent courses and enclosures whose access is necessary for the fulfilment of their mission;
2to make all useful findings, to be produced, on first requisition and without displacement, the documents, documents or books required for their research and findings and to take a copy thereof;
3° seize, against receipt, the documents referred to in point 2 that are necessary to prove an offence or to search for co-authors or accomplices of offenders; the seizure is waived in full right without confirmation by the public prosecutor within fifteen calendar days;
4° if they have reason to believe in the existence of an offence, enter the inhabited premises with the prior authorization of the judge of the police court; visits to inhabited premises must be carried out between eight and eighteen hours and be made jointly by at least two officers.
§ 3. In the performance of their duties, the agents referred to in § 1^er may require the assistance of the police forces.
§ 4. The commissioned officers exercise their powers under this section under the supervision of the Attorney General, without prejudice to their subordination to their superiors in the administration.
§ 5. In the event of the application of Article 60 the minutes referred to in § 1^er is transmitted to the King's Prosecutor only when it has not been given following the warning.
In the event of the application of section 74, the minutes shall be transmitted to the Crown Prosecutor only when the offender has not accepted the proposed transaction.
Art. 73. § 1^er. The agents referred to in Article 72, § 1^er, are also competent to seek and observe the acts which, without being punishable, may be the subject of a cessation action formed at the initiative of the Minister who has the Economic Affairs in his powers. Verbatim records in this regard are held to prove the contrary.
§ 2. In the performance of their duties, the agents referred to in § 1^er have the powers mentioned in Article 72, § 2, 1°, 2° and 3°.
Art. 74. Agents commissioned for this purpose by the Minister with the Economic Affairs in his or her powers may, in the light of the minutes that find a violation of the provisions referred to in Articles 64 and 65 and drawn up by the agents referred to in Article 72, § 1^er, propose to the offenders the payment of a sum that extinguishes public action
The rates as well as the payment and collection modalities are fixed by the King.
The sum may not exceed the maximum of the fine provided for in sections 64 and 65, of this Act, plus additional decimals.
The payment made within the specified time limit extinguishes the public action unless, previously, a complaint has been addressed to the King's Prosecutor, the examining magistrate has been required to instruct or the court seized of the fact. In these cases, the amounts paid are returned to the offender.
CHAPTER 5. - Extrajudicial remedies
Art. 75. In order to resolve any disputes relating to rights and obligations between users of payment services and their payment service providers arising from this Act and Regulation 924/2009 of the European Parliament and of the Council of 16 September 2009 concerning cross-border payments in the Community and repealing Regulation (EC) No 2560/2001, these payment service providers establish a suitable procedure for handling complaints where decisions, rendered by an independent agency
This section only applies when the payment service user is a consumer.
PART V. - Amendments, repeals and transitional provisions
Section 1^re. - Amendments
Art. 76. The following amendments are made to the Consumer Credit Act of 12 June 1991:
1° to Article 1^er12°, as amended by the Act of 24 March 2003, the words "a payment card or legitimation" are replaced by the words "a payment instrument";
2° to Article 58, § 2, 6°, the words "by means of a card or title" are replaced by the words "by means of a payment instrument as defined in the law relating to payment services";
3° to Article 59, § 1^er, paragraph 2, replaced by the Act of 24 March 2003, the words "the Act of 10 July 1997 on the dates of value of bank transactions" are replaced by the words "the Act of 10 December 2009 on payment services";
4° to section 74, paragraph 2, inserted by the law of 11 February 1994, are inserted between the words "control of credit institutions" and the words "that actually grant credits to consumption", the words "and payment institutions referred to in the law of 21 December 2009 relating to the status of payment institutions, access to the activity of payment service provider and access to payment systems";
5° Article 75, § 6, as amended by the Act of 24 August 2005, is supplemented by a paragraph written as follows:
"The conditions referred to in paragraph 1 are also deemed to be met^er, payment institutions subject to the control of the Banking, Financial and Insurance Commission in accordance with the Act of December 21, 2009 relating to the status of payment establishments, access to the activity of payment service provider and access to payment systems and to which an approval was granted on the basis of which additional credit in the execution of a payment transaction may be offered. »;
6° to Article 75bis, § 1^erParagraph 1^er, inserted by the law of 11 February 1994 and amended by the law of 24 March 2003, the words "control of credit institutions, the Banking and Financial Commission is informed by the control authority of the State of origin of an institution referred to in Article 74, paragraph 3" are replaced by the words "control of credit institutions and payment institutions in accordance with Article 39 of the law of 21 December 2009 relating to the status of payment institutions
7° to article 75bis, § 2, inserted by the law of 11 February 1994 and amended by the law of 24 March 2003, the words "credit institutions and financial institutions" are replaced by the words "credit institutions, financial institutions and payment institutions";
8° to Article 75bis, § 3, paragraph 1^er, inserted by the law of 11 February 1994 and amended by the Act of 24 March 2003, the words "credit institution or financial institution" are replaced by the words "credit institution, financial institution or payment institution".
Section 2. - Abrogatory provisions
Art. 77. Are repealed:
1° the Act of 10 July 1997 on the dates of value of bank transactions;
2° the Act of 9 January 2000 on transfers of money and cross-border payments, as amended by the Act of 24 December 2002;
3° the Act of 17 July 2002 on transactions by means of electronic funds transfer instruments;
4° Article 83novies of the Law of 14 July 1991 on Trade Practices and on Consumer Information and Protection inserted by Article 16 of the Act of 24 August 2005 to transpose certain provisions of the Remote Financial Services Directive and the Private and Electronic Communications Directive;
5° the law of 15 May 2007 concerning certain banking services.
Section 3. - Transitional provisions
Art. 78. For national payment transactions initiated by the benign and cross-border payment transactions, the payer and its payment service provider may, up to 1^er January 2012, extend the period referred to in Article 45, § 1^erParagraph 1^er and 2, up to three working days maximum. This period may be extended by an additional working day in the case of payment transactions initiated on paper.
Art. 79. For the purposes of this Act, the current terms of reference, as part of a domicile, remain valid until their termination or revision. Changes in the management of the domicile following changes in the management contracts between the payment service providers concerned and, where applicable, the beneficiary shall be subject to the payor with respect to the procedure and conditions referred to in Article 16, § 1^er.
Art. 80. This Act applies to all existing contracts and transactions that are regulated by this Act, with the exception of sections 7, 8, 9, 13, 14, 24, 29, §§ 1^er and 2.
To the extent that the provisions of this Act have the effect that the contractual obligations of the existing contracts are amended, they must be adjusted in accordance with the procedure provided for in section 16 by the day on which this Act comes into force.
PART VI. - Final provisions
Art. 81. This Act comes into force on the first day of the third month following that of its publication in the Belgian Monitor.
Promulgate this law, order that it be clothed with the seal of the State and published by the Belgian Monitor.
Given in Brussels on 10 December 2009.
ALBERT
By the King:
Minister of Finance,
D. REYNDERS
Minister of Climate and Energy, responsible for Consumer Affairs,
P. MAGNETTE
Minister for Business and Simplification,
VAN QUICKENBORNE
Seal of the state seal:
Minister of Justice,
S. DE CLERCK
Note
(1) 2008-2009 session.
House of Representatives.
Documents. - Bill, 52-2179 - No. 1. - Erratum, 52-2179 - No. 2.
Session 2009-20010.
House of Representatives.
Documents. - Amendments, 52-2179 - No. 3. - Report, 52-2179 - No. 4. - Text corrected by the Commission, 52-2179 - No. 5. - Text adopted in plenary and transmitted to the Senate, 52-2179 - No. 6.
Full report. - 12 November 2009.
Senate.
Documents. - Project not referred to by the Senate, 4-1495 - No. 1.