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Report To The President Of The Republic Relating To Ordinance No. 2009-866 15 July 2009 On Conditions For The Provision Of Payment Services

Original Language Title: Rapport au Président de la République relatif à l'ordonnance n° 2009-866 du 15 juillet 2009 relative aux conditions régissant la fourniture de services de paiement

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Legislative records




JORF n°0162 of 16 July 2009 page 11863
text No. 12



Report to the President of the Republic on Order No. 2009-866 of 15 July 2009 on the conditions governing the provision of payment services

NOR: ECET0911069P ELI: https://www.legifrance.gouv.fr/eli/rapport/2009/7/16/ECET0911069P/jo/texte



Mr. President,


I. General presentation


TheArticle 152 of Act No. 2008-776 of 4 August 2008 the modernization of the economy has authorized the Government to make by order the following provisions:
« 4° To adapt legislation to community law with a view to:
"(c) Transpose Directive 2007/64/EC of the European Parliament and of 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, and taking measures to adapt the legislation related to this transfer; "
On the basis of this authorization, the purpose of this draft order is to transpose Directive 2007/64/CE known as the "Guideline for Payment Services in the Internal Market" and to take appropriate measures to adapt the necessary national legislation.
Directive 2007/64/EC on payment services was voted by the European Parliament and the Council on 13 November 2007. The objective of this text is to establish a European payment services market and to develop competition among stakeholders in this market. With maximum harmonization, its transfer to the various Member States will lead to the creation of a harmonized legal framework for payment services delivered between two providers located in the European Union (the States parties to the European Economic Area are assimilated to the Member States). However, this directive includes a number of options that will result in different transposition choices in each national legislation.
The Government's choices of transposition aim to strike a balance between the need to offer consumers a legal framework at least as protective as they currently have, the desire to guarantee the stability and solidity of the French payment system and the ambition to take advantage of French actors of market opening opportunities and competition development allowed by the directive.
The adoption of this order will change the rules that currently prevail in France with regard to payment services, by introducing a category of services that will no longer be reserved for credit institutions. In fact, the Directive on Payment Services defines, within bank transactions, a subset called "Payment Services", which can always be provided by credit institutions but open to a new category of service providers, "Payment Facilities". This is, for the most part, the execution of transfers and levies transactions, the transmission of funds, services for the payment or withdrawal of cash, and the management of a payment account (which is an "account used for the purpose of carrying out payment transactions" within the meaning of the directive), of the execution of transactions for which the payer uses a portable telephone, digital or computer device for example. Under certain conditions, payment institutions may also grant credits. They are subject to reduced statutory obligations: while credit institutions must have a minimum initial capital of 1 million euros, the initial capital of the payment institutions varies between 20,000 and 125,000 € depending on their activity.
The payment services directive also sets out the terms and conditions of information of the payment services user before and after the completion of a payment transaction. These rules will apply to credit institutions and, in particular, deposit account agreements, the deposit account being a form of payment account within the meaning of the directive. For payment institutions, which hold payment accounts, a framework payment service contract will necessarily be entered into at the opening of an account or for the use of a specific payment instrument. The payment account taken by a payment institution is an account used exclusively for the realization of payment services and it cannot receive a deposit. A payment institution may thus not open savings accounts, for example, and savings accounts held by banks are not subject to the provisions of this order. In terms of information, the provisions of the directive apply to any provider and user. However, when the user is not a consumer, the parties may derogate by contract from a large number of provisions. Finally, the provision by the payment service provider of the information provided by the directive is free of charge.
The Payment Services Directive specifies the rights and obligations related to the use and delivery of payment services. Some of these provisions will replace the few provisions currently provided for in French law concerning cards and transfers: the irrevocable nature of a payment order is maintained, specifying the timing of this irrevocability. The rules of liability of users and providers in the event of loss, theft, diversion or fraudulent use of a payment instrument with a personalized security device (payment card for example) are specified and will be more favourable to users than the current provisions. The main novelties introduced in French law relate to the payment times that the provider must meet in order to execute a payment transaction (a working day), to the sharing of transaction costs between users, or to the possibility for a user, in some cases, to be reimbursed for a transaction that he authorized.


II. - Key issues
of this Order
The development of competition
and lower costs


The creation of payment establishment status should allow new players to enter the market to offer payment services, which should contribute to increased competition and lower prices of means of payment.


Guarantee the stability and strength of the system
of French payment


The Government ' s choice of transfer of options opened by the directive is to maintain a high level of security in the provision of payment services (enhanced protection of the funds of the users held by the payment establishments, limitation of credit opportunities, no derogation of registration for establishments with a low level of activity...).


France's attractiveness for installation
payment institutions


A registered establishment in a Member State may operate in all States of the Community. The French market of scriptural means of payment being a very dynamic sector, characterized by the modernity and effectiveness of its device, the choices of transposition retained in this order are intended to maintain a balance between the need to maintain a protective environment for both the consumer and the system, and the need to develop the market and to avoid relocation in other Member States that have made more flexible choices of transposition.


Consumer protection


Consumers will benefit from the provisions in force in their Member State even if they apply to a registered establishment in another Member State. When one of the contractors is a consumer, the contract entered into is governed by the law of the country in which the consumer has his habitual residence. Specifically, a French user will benefit in all cases from the benefits of French consumer protection regulations (information, rights and obligations related to the use of payment services). On the other hand, it will not benefit from the same level of protection of its funds, for example, if it applies to institutions located abroad subject to more flexible prudential regulation.


Facilitation of remittance transfers of migrants


Among the Government's objectives for co-development, action on the migrant remittance market is a priority. The provisions of this Order will promote the creation of new non-bank actors who will be able to specialize in this market by benefiting from appropriate prudential rules. However, the choices for the transfer of this order are to preserve a high level of protection for migrants who will use the services of these providers.


III. - Detailed presentation

  • TITRE IER : PROVISIONS MODIFIANT LE CODE MONETAIRE ET FINANCIER
    • CHAPTER IER: PROVISIONS RELATING TO THE INSTRUMENTS OF SCRIPTURAL WORLD



      Section 1 of the draft order makes some amendments to the cheque provisions and focuses on the rights and obligations related to the use and delivery of payment services.
      The amendments to articles L. 131-45 and L. 131-71 of the monetary and financial code allow payment institutions to cash cheques (they may not be drawn from cheques). Section L. 131-85 is amended to allow payment establishments to consult the central cheque file when granting a credit.
      As the payment services directive is based on the principle of technological neutrality, its provisions apply to any instrument of payment of the scriptural currency with the exception of paper-based instruments (cheques, promissory note, currency letter...). The new chapter III of title III of book I of the monetary and financial code thus replaces the current chapters II and III which provide specific provisions for payment cards and transfers within the European Economic Area.
      Section 1 specifies the scope of application of rights and obligations related to the use and delivery of payment services. This field is limited to payment services in euro or in a currency of the European Union and delivered between two payment services providers located within the European Economic Area.
      The French law concerning the cards currently in force not limiting opposition cases and the liability regime to intra-community transactions only, an article L. 133-1-1 is created to maintain the provisions in this matter at constant law for card payment transactions carried out outside the European Union.
      When the user is not a consumer, Article 1 provides that it may be contractually derogated from certain provisions. The Government did not use the option of the directive to assimilate micro-enterprises to consumers. This article then deals with the conditions required for a payment transaction to be authorized and recalls, inter alia, the principle of the irrevocability of a payment order (Article L. 133-8) while providing for cases where it may be derogated from this principle (revocation by the payer on the day before the day agreed for a withdrawal, revocation by a user at any time if the payer and the recipient have agreed). The conditions for the execution of a payment transaction are specified, including the definition of the time of receipt of a payment order. Section L. 133-11 ensures that the total amount of the payment transaction is transferred to the recipient.
      Sections L. 133-12 to L. 133-14 provide the deadlines for the execution of a payment transaction, which is in particular J + 1 between the time of receipt of an order of payment in euro by the payer's provider and the credit on the beneficiary's account. The funds must then be made available immediately to the recipient and the value dates must be allocated to these transactions, which cannot be after the credit or prior to the debit. These provisions are in public order on the I of Article L. 133-14 and, by derogation from the general scope of this order, also apply when only one of the two payment service providers is located in the European Economic Area.
      Article 1 governs the obligations of the parties in respect of payment instruments (delivery, protection of security devices...) and in particular the obligation of the payment service provider to have the means to enable a user to inform it in the event of loss, theft, diversion or unauthorized use of a payment instrument. This information "for the purpose of blocking the instrument" provided for in Article L. 133-17 corresponds to the current practice of "as opposed". The user is required to comply with this obligation of information without delay if he or she wants to be able to benefit from the protective provisions of articles L. 133-18 to L. 133-20 which provide, for instruments with a security device, that the user does not bear the losses before "information for purposes of blocking" only up to 150 € in case of loss or theft of the instrument of payment, if the security device is used, and By using the corresponding option of the directive, the Government has chosen a slightly more favourable liability regime for the user than the current French regime applicable to the cards that provides a deductible of 150 € for the user in case of loss or flight, whether or not the security device has been used.
      Article 1 also defines the liability of the payment service providers in the event of a failure to execute a payment order and specifies the practical terms and times to be followed in the case of an unauthorized or misused payment transaction: Article 1 provides the basis for proof of an unauthorized or misused transaction on the payment service provider and extends to 13 months the period during which an unauthorised or misused transaction may be executed.
      Article 1 introduced by Article L. 133-25 is a practice that is not yet used in France and allows a user to be reimbursed for a transaction that he authorized when this transaction is carried out by a debit or card type instrument, if the exact amount of the transaction was not known at the time the consent was given or if the amount is greater than that to which the hotel payer could reasonably expect (reserved example).
      This section 1 further provides that no fee may be charged by the provider for the performance of its obligations and preventive measures referred to above, unless otherwise provided by the law and that the costs incurred by the execution of a payment transaction must be shared between users. The fee cap resulting from a payment incident currently provided under French law is maintained for all payment service providers.
      Finally, section 1 provides a specific regime for rights and obligations related to the use of payment instruments reserved for low-value payments.

    • CHAPTER II: OTHER PROVISIONS RELATING TO MONNAIA



      Section 2 of the draft order provides for various measures to adapt the existing law related to the establishment of payment institutions, including allowing payment institutions to hold accounts to the Bank of France. In addition, Article 2 adapts the current criminal penalties for payment card offences to extend them to all payment instruments covered by the directive.
      Finally, this article 2 creates two articles L. 112-11 and L. 112-12 in the monetary and financial code prohibiting payment service providers from contractually preventing a merchant from applying fees or proposing a reduction to a customer for the use of a given payment instrument. The practice of "overloading" (payer fees for the use of a payment instrument given by merchants) is, however, prohibited, as one of the options in the directive allows, in order not to restrict the use of effective payment means such as payment cards. The possible modalities for derogation of this principle may, however, be considered later and clarified by regulation.

    • CHAPTER III: PAYMENT SERVICES AND PAYMENT SYSTEMS



      Sections 3, 4 and 5 of the draft order define payment services, which entails a redefinition of the "availability and management of means of payment" that had so far been the subject of the bank monopoly, and provide for information obligations on payment service providers. When the user is not a consumer, it may be derogated from all or part of these obligations. The Government did not use the option of the directive to assimilate micro-enterprises to consumers.
      Section 3 deals with the services that credit institutions can provide and the new definition of the concept of "disposal and management of means of payment": the payment services that are limited in section 5 of the draft order represent part of the activities currently covered by the notion of "disposal and management of means of payment", which is itself maintained. They may be issued by payment institutions and credit institutions. Other services covered by the notion of "disposal and management of means of payment" (e.g. e-mail cheques or currencies) are referred to as "payment banking services" and are reserved for credit institutions. The concept of bank operation of current law is maintained and includes the receipt of public funds, credit transactions and payment banking services. Transactions related to the banking operations under French law are supplemented by payment services. Bank operations and their related transactions represent all transactions that can be carried out by credit institutions.
      The payment services directive excludes certain services from its scope: when they are not subject to bank monopoly, it is therefore free activity. Section 3 of the draft order creates an article L. 311-4 specifying these services that may be issued by a company that has neither a credit establishment status nor a payment establishment status and that are not subject to the provisions of this draft order. These include payment transactions carried out by a digital operator or mobile phone when the services are delivered and are to be used on the computer or telecommunications device, the operator is not acting solely as a financial intermediary but providing added value to the proposed service.
      Section 4 adapts the current provisions concerning deposit accounts conventions to the new provisions of the draft order. Indeed, the deposit accounts maintained by the banks are primarily intended to carry out payment services and are therefore subject to the information obligations set out in the directive. Section 4 maintains the current obligation, at the time of entry into account, to sign an account agreement for banks. This deposit account agreement is now the subject of detailed pre-contractual information, set by order of the Minister responsible for the economy, which must be provided to the customer before it is contractually bound. This information is largely similar to those currently provided for in French law. Any modification must be communicated to the customer at least two months before it comes into force and the absence of a dispute before the effective date is accepted by the customer. French law currently provides for a communication three months before the coming into force but a two-month period to notify a refusal. When the customer refuses an amendment or wishes to terminate after a twelve-month period, he does not bear any costs. The current French law only provides for the absence of fees if the conditions and rates applicable to the deposit account are substantially changed. When a bank proposes a new payment service that is not the subject of an opening of an account, a framework payment service contract is established and is subject to the detailed pre-contractual information provided by the directive. It must not be necessarily signed, in order to allow a certain degree of flexibility to the competitive payment service providers on new payment services. In the event of an amendment and termination of this framework contract, the provisions of this order apply. This type of annexed contract (e.g. contract cards) is not currently governed by the law and is not subject to formalism.
      Article 5 defines in a comprehensive and enumerative manner the payment services, seven, as well as the information obligations on payment service providers, applicable to payment services provided between two providers located in the European Union and in the euro or in a currency of the European Union. These information obligations cannot result in user fees (Article L. 314-7). In accordance with the relevant jurisprudence, the Government has used the option of the directive to impose on the payment service provider the burden of proving that it has met the requirements of this information order (Article L. 316-2)
      Section 5 defines the framework contract for payment service and incorporates the provisions described in section 4, which therefore apply to deposit accounts agreements and payment services framework contracts. The principle of parallelism of forms was retained for the opening of an account between the deposit account agreement, reserved for credit institutions, and the payment service framework contract, proposed by payment institutions. This includes ensuring consistency with the provisions of the draft order with the requirements laid down in the 2001 law containing urgent economic and financial measures (MURCEF) of 2005 regarding the formalization of contractual relations between banks and their clients (contracting signature in particular) and the obligation to inform customers by banks. Article 5 specifies the information that must be made known to the user after the execution of the payment transaction (by a bank or payment institution) and includes the possibility for the user, at his request, to receive such information on paper (the option of the directive retained by the Government). The obligation of the annual fee statement currently provided under French law is maintained for all payment service providers.
      Finally, section 5 provides that an order of the Minister responsible for the economy will specify the information to be provided when one of the payment service providers is located outside the European Union, case not covered by the directive, and it provides a specific regime regarding the obligations of information related to the use of payment instruments dedicated to low-value payments.
      Section 6 maintains the existing rules for banking mediation that are applicable to all payment service providers.
      Article 7 maintains the competence of the agents of the Bank of France and the DGCCRF to monitor compliance with the provisions of the monetary and financial code relating to account agreements and extends these competencies to the framework contracts for payment services and to the overcrowding.
      Article 8 guarantees all payment service providers (banks or payment institutions) access to payment systems on a non-discriminatory basis, the payment service provider wishing to access a payment system to prove its ability not to question the integrity and stability of the system. However, these provisions do not apply to systemic payment systems that are the subject of a statement to the Commission, or to systems managed by a single payment service provider (internal system of a banking group, known as "three corners").
      Section 8 also provides that payment establishments may resort to demarcation and adapt to constant law the penal provisions of the 2001 Act that contain urgent economic and financial measures (MURCEF) for account agreements and customer information obligations by credit institutions by extending them to payment systems contracts and payment institutions.

    • CHAPTER IV: PRESTATEMENTS FOR PAYMENT SERVICES



      Article 9 deals with adaptations of existing law taking into account the new definition of disposal operations and the management of means of payment. The exemptions to the status of credit institution provided for in Article L. 511-7 of the monetary and financial code are thus adapted to be limited to companies issuing bank payment services and the conditions of exemption are consistent with the criteria introduced by the draft order to exempt companies issuing payment services from the status of payment institution.
      Article 10 creates three new chapters in title II of Book V of the monetary and financial code relating to payment service providers, payment institutions and agents of payment service providers.
      Section 11 states that only payment service providers can provide payment services. Payment service providers are credit institutions and payment institutions. The Bank of France, the Institute for the Emission of Overseas Departments (IEDOM), the Caisse des dépôts et consignation and the Treasury are considered to payment service providers. The new article L. 521-3 of the monetary and financial code states that companies exercising payment services based on means of payment within a limited network of persons accepting these means of payment or for a limited range of goods and services are exempt from the status of payment establishment.
      Section 12 defines the payment establishments, the conditions of licence and the prudential and accounting provisions applicable to them.
      Payment institutions are legal entities that usually provide payment services. They may also provide related services (article L. 522-2), including credits under certain conditions. These credits can only be accessories and exclusively granted in the execution of payment transactions. They must be refunded within 12 months and cannot be granted on the basis of the funds received by the institution.
      Sections L. 522-6 to L. 522-13 created by section 12 of the draft order define the conditions of access to the profession for payment establishments, including the approval by the Committee on Credit Institutions and Investment Companies, which verifies that the conditions provided by the draft order for sound and prudent management are met and that the company has the initial capital provided by the directive (between 20,000 and 125,000 €). Payment institutions can be hybrid, i.e. practice as an usual profession another activity. Accounts held by a payment institution cannot be deposited and are used exclusively for payment transactions. The option to exempt a registration facility where the volume of payment transactions carried out is less than 3 million euros per month over a year has not been chosen to ensure that all payment services facilities are properly subject to the prudential rules provided by law.
      The prudential provisions applicable to payment establishments are included in sections L. 522-14 to L. 522-18 created by section 12: any payment institution must have a minimum level of equity calculated according to one of the methods provided by the directive and the funds received from users must be protected from the first euro either by a cantonment with a credit institution or by the subscription of an insurance policy. The Government has chosen to use the option set out in the directive to impose this protection on all payment institutions, whether hybrid or not. However, the option to require this protection only from €600 of deposited funds was not retained. The funds are therefore protected from the first euro.
      Existing provisions on professional secrecy for credit institutions are included for payment institutions and section 12 provides the applicable rules for the establishment and publication of accounts of payment institutions.
      Article 12 also provides that payment service providers may resort to agents, natural or legal persons, who exercise on their behalf and under their full responsibility the activities for which they are registered. As a derogatory to the status of an agent, section 12 creates in article L. 523-6 a reduced status for persons who only issue money on behalf of a credit institution, exclusively to customers of that credit institution.
      Article 14 submits payment institutions to the anti-money laundering and terrorist financing provisions. Article 14 also provides for criminal penalties applicable to payment establishments in line with the current criminal provisions for credit institutions.

    • CHAPTER V: INSTITUTIONS COMMUNES FOR CREDITIES FOR INVESTMENT ENTREPRESENTATIVES AND ON PAYMENT ASSESSMENT



      Section 15 of the proposed Order deals with the regulatory powers of the Minister responsible for the extended economy to payment institutions and agents.
      This Article 15 also extends the powers of the Banking Commission in respect of the control, sanction and treatment of enterprises in difficulty to payment institutions.
      Section 15 creates section L. 613-30-1 to protect funds deposited on the account of a payment institution in the event of a collective proceeding involving that institution.
      Finally, section 15 extends the jurisdiction of the Financial Legislation and Regulation Advisory Committee, the Financial Sector Advisory Committee and the Bank Mediation Committee to the payment institutions.

  • TITRE II : PROVISIONS MODIFIANT LE CODE DE LA CONSOMMATION



    Section 16 deals with various measures to adapt the consumer code related to the creation of payment institutions and the new definition of bank transactions.
    Article 16 also amendsArticle L. 333-4 of the Consumer Code in order to allow payment establishments to provide information and access to the file of incidents characterized by the repayment of credits to individuals (FICP) as these institutions may grant credits.

  • PART III: PROVISIONS FOR TRADE CODE



    Article 17 deals with various measures to adapt the trade code related to the creation of payment institutions and the new definition of bank transactions.

  • PART IV: FINAL AND TRANSITIONAL PROVISIONS



    Section 18 allows credit institutions to adopt the status of payment establishment on a simple notification to the committee of credit companies and investment companies before December 25, 2009, if they provided the committee of credit institutions and investment companies with the evidence that it meets the requirements for payment establishments.
    The Directive does not provide for a transitional period prior to the entry into force of its provisions throughout the European Union, section 19 shall, as of 1 November 2009, apply the provisions of this Order to the deposit accounts agreements entered into before that date. Article 19 also guarantees the application of French law in respect of the validity of a debit warrant, particularly in the context of the launch of payment instruments of the Single Euro Payment Space (SEPA).
    Section 20 sets out the obligations on credit institutions that will be required to inform their customers of the changes in this order and that must update all deposit account agreements by May 31, 2010.


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