PSD2 National implementation status table

Overview

Article 70 of French law n°2016-1691 of 9 December 2016 on transparency, fight against corruption and modernisation of the economy authorises the French government to implement PSD2 by means of Ordinance within 18 months from the date of publication of the law (i.e., within 18 months from 10 December 2016).

The Ordinance (n° 2017-1252) implementing PSD2 was published on 10 August 2017. The Ordinance directly amends the relevant provisions of the French Monetary and Financial Code ("MFC") in which French provisions implementing PSD1 had been initially consolidated. The Ordinance has been completed by seven (7) Decrees published on 2 September 2017 and finalising the implementation of PSD2. The Decrees concern in particular prudential requirements that apply to payment institutions or mandatory information to be included in framework contracts.

The Ordinance and the Decrees entered into force on 13 January 2018 but the French government has introduced a transitory period with respect to (i) the methods of communication between PSPs and TPPs (Article 66 §3 d) and §4 a) and Article 67 §2 c) and §3 a) of PSD2) and (ii) strong customer authentication requirements (Article 97 §1, 2 3 and 4 of PSD2). Such provisions will only enter into force 18 months following the entry into force of the RTS on strong customer authentication and secure communication.

Law n° 2018-700 of 3 August 2018 approving the Ordinance implementing PSD2 was published on 5 August 2018. The purpose of the Law is primarily to confirm the Ordinance. It also introduces slight amendments to the text of the Ordinance, including in particular: (i) implementation of the cashback exemption (Article 3 (e) PSD2) which had not previously been implemented in France; (ii) full reintroduction of the own account exemption (Article 3 (m) PSD2) which had been partially removed by mistake by the Ordinance; and (iii) introduction of a provision allowing the French government to adopt a Decree to implement the RTS on secure communication before their entry into force.

On 26 December 2018, the French government published (i) a Decree n° 2018-1228 implementing the RTS for strong customer authentication and common and secure open standards of communication. The purpose of this Decree is to facilitate the setting up of common and secure open standards of communication between payment service providers and third-party providers before the entry into force of the RTS as well as to define the supervisory powers granted to the French regulator (ACPR) and the French Central Bank in this respect and the procedure to be followed to benefit from the fallback mechanism exemption; and (ii) a Decree n° 2018-1224 which defines the thresholds that apply to benefit from the cashback exemption as well as the sanctions that are applicable in case of non-compliance with the French cashback exemption regulations.

Overview

The French regulator (Autorité de Contrôle Prudentiel et de Résolution – ACPR) did not issue any formal guidance for PSD1. In relation to PSD2, relevant ACPR publications are as follows:

• the ACPR's Position 2017-P-01 published on 25 October 2017 on its interpretation of the concepts of "limited network" and "limited range of goods and services" (to determine whether a company is eligible to the exemption from e-money/ payment institutions' licence); and
• the ACPR's notices expressing its intention to comply with the following EBA Guidelines:
  o Guidelines GL/2017/10 on major incident reporting;
  o Guidelines EBA/GL/2017/17 on the security measures for operational and security risks of payment services;
  o Guidelines GL/2018/05 on fraud reporting.

The French Banking Federation (Fédération Bancaire Française – FBF) has issued an opinion on PSD2 raising concerns about security issues in relation to AIS providers. The FBF requests that AIS providers are regulated as payment institutions. However, this opinion should not have any impact on the French implementation procedure because (i) opinions issued by the FBF – which is not a legislative body – are not binding and (ii) the French legislature would not be entitled to regulate AIS providers as payment institutions as they have a special status which is directly provided for under PSD2.

Overview

The PSD2 implementation act entered into force on 13 January 2018. Payment services are governed by the Act on the Prudential Supervision of Payment Services and the civil law provision in Section 675c et seq of the German Civil Code.

The draft implementing act was supplemented by an explanatory note which discusses the German legislator's view of PSD2 and understanding of key PSD2 provisions. In addition, BaFin published a Guidance Notice on the German Act on the Prudential Supervision of Payment Services on 27 November 2017. This Guidance Notice is similar to the UK Perimeter Guidance and mainly details the scope of PSD2 (including exemptions).

Overview

The draft implementing act was supplemented by an explanatory note which discusses the German legislator's view of PSD2 and understanding of key PSD2 provisions. In addition, BaFin published a Guidance Notice on the German Act on the Prudential Supervision of Payment Services on 27 November 2017. This Guidance Notice is similar to the UK Perimeter Guidance and mainly details the scope of PSD2 (including exemptions).

Overview

On 20 June 2018, the Polish Act implementing PSD2 entered into force. Payment services are now governed by the revised Act dated 19 August 2011 on payment services.

Overview

On 19 July 2017, HM Treasury published the final form Payment Services Regulations 2017 (SI 2017/752), together with an explanatory memorandum and transposition table.  Market participants need to comply with the majority of the requirements in the Regulations from 13 January 2018.  HM Treasury has also published (i) a paper on expectations for the TPP access provisions in PSD2 (in conjunction with the FCA) and (ii) its response to its February 2017 consultation on implementing PSD2.

The FCA Payment Services Stakeholder Liaison Group was re-established in July 2016 to 'ensure productive liaison between the FCA…and the payment services sector in order to support the successful implementation' of PSD2. The Group normally meets every 6 weeks. Agenda and minutes are available from the FCA payments and e-money stakeholder liaison groups webpage.

PSD1 was implemented via the Payment Services Regulations 2009 (SI 2009/209).

Overview

The UK regulator, the Financial Conduct Authority (FCA), published a consultation (CP17/11) on revised guidance and Handbook rule changes for PSD2 on 13 April 2017, together with a draft revised Approach Document. There is a dedicated webpage. The UK Payment Systems Regulator also published a separate draft Approach Document on the aspects of the draft UK implementing regulations, the Payment Services Regulations 2017 (PSRs 2017), for which it is solely responsible. The consultation for both Approach Documents was co-ordinated through the FCA and closed on 8 June 2017. 

The FCA published another consultation (CP17/22) on draft authorisation and reporting forms under PSD2 on 13 July 2017. The FCA described this as a 'small follow-up Consultation Paper on authorisation, registration and reporting forms' under PSD2 after the main PSD2 implementation consultation CP17/11. In CP17/22, the FCA consulted on some changes to its Handbook to introduce new reporting and record keeping requirements for PSPs. It also consulted on some registration and authorisation forms to be used by payment institutions and e-money institutions to reflect new authorisation and registration requirements under PSD2. This includes forms for existing payment institutions and e-money institutions who will need to be re-authorised or re-registered under PSD2. The consultation closed on 18 August 2017 and the final forms will be published in September 2017. There is a dedicated webpage.

On 19 September 2017, the FCA published a policy statement (PS17/19) containing final form updates to its Payment Services Approach Document, Handbook and Perimeter Guidance Manual (PERG) to reflect PSD2 and the PSRs 2017. Following industry feedback to its 2016 Call for Input on the existing guidance, responses to its April and July 2017 consultations and publication of the final form PSRs 2017, the FCA's revised Approach Document also:

• combines FCA guidance on payment services and e-money into one document;
• provides clarifications on existing guidance as well as new guidance on dealing with legislative and regulatory changes introduced since publication of the current Approach Document, including UK implementation of the Payment Accounts Directive; and
• takes into account amendments for recent technological and other market developments, such as new technologies and business models.

The changes also cover new directions for those providers whose activities do not constitute regulated payment services business, referred to as excluded services.

In addition, the Payment Systems Regulator (PSR) has published a separate new Approach Document on the aspects of the PSRs 2017 for which it is solely responsible.

Most of the FCA's changes took effect from 13 January 2018.

The FCA application period for those firms which will need to become registered or authorised for the first time as a result of PSD2, as well as existing payment institutions and e-money institutions which will need to be re-registered or re-authorised, began on 13 October 2017.

Overview

On 25 July 2018, the Luxembourg law implementing PSD2 was published in the Luxembourg Official Journal Mémorial A. It entered into force on 29 July 2018.  The new law fully amends and restates the Luxembourg law dated 10 November 2009 on payment services and e-money institutions.  Its full title is:

Law of 20 July 2018 1° transposing Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC; and 2° amending the Law of 10 November 2009 on payment services, as amended