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Belgian transposition of the PSDII rules of conduct

The transposition of the second Payment Services Directive (the “PSDII”) should have been completed on 13 January 2018. With a delay of a few months, a Belgian draft law implementing the PSDII rules of conduct into the Economic Law Code (the “Rules of Conduct (draft) Law”) has finally been released and is likely to be adopted in its final version very soon.

In accordance with the current structure of the legislation, the Belgian legislator has decided to transpose the PSDII through two different legislative acts:

Unlike the law of 11 March 2018 on the prudential aspects, the Rules of Conduct Law will not be a stand-alone legal instrument. Rather, its provisions will be integrated into the Economic Law Code (ELC), mainly in Book VII on the provision of payment services.

What will change?

Along with other important novelties, one of the major changes is obviously the set of provisions related to the new payment services and the relation between the third party providers (TPPs) and the account servicing payment service providers (ASPSP)[2] [2].

Here is a short and non-exhaustive overview of the new provisions and changes[3] [3]:

1) Surcharge ban

In the past, merchants could charge an additional fee for the use of e.g. a payment debit/credit card. This will no longer be possible. The Belgian legislator decided[4] [4] to completely ban the “surcharge” for the use of payment instruments. (art. VII.30, §3 ELC).

2) Rules on the provision of the new payment services

Specific rules relating to the provision of payment initiation and account information services will be inserted in the ELC, e.g.:

3) Rules on the loss sharing in case of unauthorised payment transaction resulting from the use of a payment instrument

Under the PSDI, the client bore up to 150 EUR of the total loss if an unauthorised payment transaction was completed with the use of his/her (lost or stolen) payment instrument (e.g. a debit card).

Despite the strong opposition of the banking sector, this amount has been reduced to 50 EUR (art. VII. 44 ELC).

4) Reduction of the delay in handling complaints

Under the new Rules of Conduct Law, the Payment Service Provider (PSP) must in principle reply to clients’ complaints within 15 working days (upon reception of the complaint) (art. VII. 55/14 ELC), compared to 30 working days under the PSDI.

5) Data processing and conservation

The processing of client’s data necessary to the provision of payment services will require his/her explicit consent.

According to the explanatory memorandum, the TPPs will be allowed to infer this explicit consent from the approval of the PSP’s general T&Cs.

Entry into force

According to the draft version, the Rules of Conduct Law will enter into force 10 days after their publication in the Belgian Official Journal.

However, given the potential impact of these rules on the contractual relationship between PSPs and their clients, a 4 months period as of the publication will be granted to PSPs to adapt their contractual documentation (art. 14 of the Rules of Conduct draft Law).

However, questions arise as to the precise meaning and scope of this transitional provision. Will it prevent clients to rely on the subjective rights granted by the Rules of Conduct draft Law against their PSPs during the transitional period or does it only mean that the NBB will not seek (regulatory) sanctions against the PSPs during this period of time (see art. XV.89 ELC)?

This remains to be seen.

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For more information, please contact Simont Braun’s Digital Finance Team: digitalfinance@simontbraun.eu [5] – +32 (0) 2 533 17 41

[1] [6] This law repeals and replaces the law of 21 December 2009 on payment and electronic money institutions.
[2] [7] Read our previous news on that topic for a description of these new payment services: https://bit.ly/2JqXYYr [8].
[3] [9] The numbering of the articles is subject to change in case of amendment to the Rules of Conduct draft Law.
[4] [10] This was only an option offered to Member States in the PSDII. Member States could also decide that surcharges remain authorised as long as they do not exceed the real cost incurred by the merchant.