Read the untranslated law here: http://www.boe.es/buscar/doc.php?id=BOE-A-2015-10633
I the proper functioning of the payment services is essential for the development fluid of commercial and financial transactions.
In this sense, the regime legal of them systems of payments has by object establish rights and obligations for providers and users of services of payment, so that such services are provided in conditions of competition, transparency and confidence between the parts.
Law 16/2009, of 13 November, payment services, lists these services in its article 1(2), one of them being: 'services that allow the withdrawal of a payment account and all the operations necessary for the management of own payment account'. Precisely, a mode of delivery of this service is the withdrawal of effective in the network of ATMs automatic. Through this network, credit institutions put at the disposal of its clients a channel through which provide various banking services, the most common being the withdrawal of cash. In fact, the withdrawal of effective represents the 74 per cent of the total of operations made with cashiers.
The Spanish banking system is characterized by the wide network of its network of ATMs in Spain. According to data of June of 2015, there are 50.479 ATM, what supposed 1.09 ATMs by every thousand inhabitants, figure very top to it of others countries of our environment.
In recent months has been producing a change in the common system of payment of commissions by the withdrawal of cash in ATMs, motivated by some organizations trade policy decisions. Indeed, them customers that previously had to pay a Commission to the entity CA of its card, now must pay, in some occasions, besides such Commission another additional to the entity owner of the cashier.
The need to maintain the trust and its influence on the development of commercial traffic, in a context of economic recovery where domestic consumption is configured as one of the mainstays of this recovery, requires addressing urgent adjustment of the model of payment of commissions by the withdrawal of cash that move citizens certainty, guarantees the principle of legal certainty , and complete and clarify existing control of customer credit institutions.
II through the modification of the law 16 / 2009, of 13 of November, of services of payment, rush by this real decree-law, is sets a new model of collection of commissions for the withdrawal of effective of ATMs automatic that, in all case, will prevent the charging of a double Commission to the citizen, reducing in final the cost for the user of this service.
This model applies exclusively to commissions for withdrawal in itself considered, credit and debit, and does not affect other committees related to credit services.
With this new regulation it entity owner of the cashier not may demand Commission any to the user of the service or impact you expenses, but itself may require it to the entity CA of the card. Institutions can reach agreements to fix the amount of the Commission. In absence of agreements, them entities proprietary of them ATM automatic will determine of way not discriminatory between entities what Commission charged by defect to them entities issuing of the cards. In addition, in cases of withdrawal to debit, card CAs only may impact to your customer, total or partially, the Commission satisfied to the owner of the ATM, so the amount that may impact the user of the service is limited.
This legal regime is complemented by specific measures to strengthen the transparency and information to the user, and monitoring and control of the implementation of the new regulation. In particular, them entities must report to the Bank of Spain of them commissions that by the withdrawal of effective is charged between entities of credit e inform, also, to the user of the service in the time of the withdrawal of effective of the Commission that you could be repercutida.
The new model comes into force the day following the publication of this Royal Decree-law in the «Official Gazette», but he is set a minimum term so that entities can adapt their systems of payment to the modifications introduced by this rule.
III the final part of this Royal Decree-law consists of an additional provision, a transitional provision, repeal provision and three final provisions.
The sole additional provision entrusts to the National Commission of markets and competition the preparation of an annual report on the agreements and decisions taken in the field of commissions.
The single transitional provision regulates the regime of adaptation of credit institutions.
In the single repealing provision is ordered the repeal of many provisions of equal or lower rank is contrary to the provisions of this Royal Decree-law.
Finally, the first provisions to third respectively, regulate competence titles under which is adopted the Royal Decree-Law, enabling the Bank of Spain for the development of the second additional provision of law 16/2009, of 13 November, and its entry into force.
IV in the context referred to in paragraph II of this explanatory memorandum, is crucial to ensure without delay reforming the model of commissions for cash withdrawal through ATMs.
Indeed, in recent months the traditional model that came running through multilateral agreements in networks of ATMs has been altered. Compared to the previous model in which customer paid the issuer a Commission for cash withdrawal, now, in some cases, he has to give back to the owner of the ATM and its authority. This means, ultimately an increase in commissions supported by bank customers by this concept that in some cases is greater than 100 percent. Even though the client has the option of choosing between those ATMs that charge no Commission and therefore reduce or eliminate the impact of consecrate this new model, this option will be more and more difficult to exercise. This will most significantly affect customers operating in towns small with fewer ATMs, the entities with a scope limited to a region or the banking over the internet. The impact of this issue is especially relevant taking in has that is performed almost 18,000 retired of effective by cashier in a year.
Therefore, the measures which are adopted in the present Royal Decree-Law concur the circumstances of extraordinary and urgent necessity required by article 86 of the Spanish Constitution as enabling budget for resorting to this normative figure.
Virtue, in application of the authorization contained in article 86 of the Constitution, on the proposal of the Minister of economy, competitiveness and prior deliberation of the Council of Ministers at its meeting of October 2, 2015, HAVE: single article. Modification of the law 16/2009, of 13 November, payment services.
The additional provision of Act 16/2009, of 13 November becomes configured as first additional provision, and added a second additional provision, with the following wording: «second additional provision. Withdrawal of cash in ATMs.
1. in case of withdrawal of effective with card u others instruments of payment, the entity holder of a cashier automatic not may demand amount any to them customers of entities different authorized in Spain or of branches of entities of credit foreign that operate in Spain, without prejudice of the Commission that can demand to the entity CA of the card or instrument of payment.
2. before that is appropriate to the withdrawal to debit by the holder of the card or payment instrument in order to obtain their consent, the assignee of the cashier must inform the Commission that such withdrawal will be charged to the issuer of the card or instrument of payment, as well as the possibility that such a Commission be backwashed for this last total or partially.
In the case of withdrawal of effective to credit, the information previous must include, also, the amount maximum additional that you may apply the entity CA in accordance with it willing in the paragraph 5.
3. the consent of the holder of the card or instrument of payment will force to it entity CA to the payment of the Commission required by the holder of the cashier, whenever the first available of balance enough for meet it withdrawal of effective and it amount that it entity CA you can impact in accordance with the paragraph 5.
4. the Commission to satisfy the CA to the owner of the ATM may be subject to agreement between the two.
In the absence of agreement, the Commission determined by the owner of the ATM with respect to the issuer of the card will be the same throughout the national territory and will not be discriminatory, unless they may arise differences to equivalent; In addition, the Commission may not distinguish on the basis of the customers of CA and only may be reviewed annually.
Agreements and decisions taken on the basis of this section shall in any case be compliant with the rules of competition.
5. by the withdrawal of effective to debit in ATMs automatic of others entities, the entity CA of it card or instrument of payment not may affect to its customer amount upper to it Commission charged by it entity holder of the cashier to it own entity CA, or apply you amount additional any by any another concept. Within the above limits, the amount starts to be which is freely set in the contract between the CA and its customer.
It willing in the paragraph previous not will be of application in them removed of effective to credit, in which the entity issuing of the card or instrument of payment may apply to the customer an amount additional by this concept. In any case, this amount may not exceed which apply to customer by the withdrawal of cash to credit their cash.
6. them entities holders of them ATM or stations of them cards or instruments of payment must report to the Bank of Spain of them commissions by the withdrawal of effective to is concerns the paragraph 4. The above information will be provided in the form and with the content and periodicity to be determined by the Bank of Spain.
7. will have consideration of rules of management and discipline the provisions above. Non-compliance will be considered serious infringement, unless you have occasional or isolated, character, in which case it shall be punished as a mild offense, according to the law 10/2014, 26 June, management, supervision and solvency of credit institutions.»
Sole additional provision. Report of the National Commission of markets and competition on the agreements on commissions.
Annually, the National Commission of markets and competition will send a report to the Ministry of economy and competitiveness on the agreements or decisions of the credit institutions for the determination and implementation of the Commission for the withdrawal of cash card or other payment instruments referred to in the second additional provision of law 16/2009 , of 13 of November, of services of payment, in the wording given by this Royal Decree-law. The National Commission of markets and competition can ask how much information it deems relevant to fulfilling this mandate.
The first report shall be sent to the Ministry of economy and competitiveness before the conclusion of the first semester of 2016.
Sole transitional provision. Regime of adaptation of the entities of credit.
Credit institutions must adapt to the provisions contained in paragraphs 2 to 4 of the second additional provision of Act 16/2009, of 13 November, before January 1, 2016. However, them commissions derived of them agreements adopted by them entities according to the paragraph 4 will be communicated to the Bank of Spain, in accordance with it planned in the paragraph 6 of the cited provision and in it available end second of this real decree-law.
Sole repeal provision. Repeal legislation.
How many rules of equal or lower rank is contrary to the provisions of this Royal Decree-law are repealed.
Available end first. Skill-related title.
This real decree-law is dictates to the amparo of it willing in them articles 149.1.6. th, 11th and 13th of the Constitution that attributed to the State them skills on legislation commercial, bases of the management of the credit and the banking and bases and coordination of the planning general of it activity economic.
Available to finish second. Enabling legislation.
It enables the Bank of Spain to develop provisions in paragraph 6 of the second additional provision of Act 16/2009, of 13 November, within the period of two months from the entry into force of this Royal Decree-law.
Third final provision. Entry into force.
This Royal Decree shall enter into force the day of its publication in the «Official Gazette».
Given in Madrid, the 2 of October of 2015.
The President of the Government, MARIANO RAJOY BREY
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