Response to consultation on Guidelines on procedures for complaints of alleged infringements of the PSD2
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“Competent authorities should ensure that at least two different channels are available for complainants to submit their complaints of alleged infringement of Directive (EU) 2015/2366 and that these channels are easily accessible for all types of complainants”.
Considering the objective of the EBA guideline is to provide an easy and transparent way for Payment Service Users (PSU) to enter a complaint, we are convinced that only one channel should be available in each member state to submit a complaint. The current statement will provide multiple channels and diverging approaches between Competent Authorities (CA) in Europe.
Only 1 channel will guarantee PSUs they will face a coherent way a complaint is managed. This and a “First In First Out” principle in a complaint treatment by the CA (no different processes depending on the CA channel used) will guarantee that the EBA aggregation objective will be met and also be more accurate (guideline 2).
The unique interface and procedure in the complaint submission will benefit from:
1. a unique approach in the logging of the complaints towards the complainant (coherent reference number, completeness and understanding of the complaints),
2. a unique complaint assessment process and coherent/consistent way for requesting the supporting documentation,
3. a unique central archiving of the complaints & documentations process and a coherent/fair assessment method of all complaints/all PSPs,
4. a unique structuration/classification of complaints allowing accurate aggregation reporting and a better visibility of the issues in the local market,
5. an easy identification of multiple complaints (from lobbying associations) and making sure we do not have association complaints and individual PSU complaints.
6. a guarantee to have an easy traceability in the exchange of information between the CA in different member states (it would mean difficulties in statistics of complaints if reported several times). Including which information has been exchanged by whom towards which CA.
7. a better confidentiality of the collected information (data privacy, in exchange of information between CAs and across countries).
We are convinced the PSD2 aims to improve and simplify the current complaint procedures and doesn’t want to simply duplicate/replicate the existing interfaces which are considered as not accessible to PSUs (as mentioned in chapter 5 page 19 of the EBA guideline EBA/CP/2017/01).
A PSP subject to a complaint investigation expects a fair treatment (to get a level playing field). We believe it is important to face only one CA interface in order to be able to defend and analyze the complainants’ information in a unique and efficient way. PSPs do not want to face multiple interfaces/sensibilities/methods/thinking/interests the diverse complaints channels may have. PSP should also not have to support the costs of the heavy coordination between the CA in the same country (e.g. for similar cases entered via different complaints channels).
We are of the opinion that we should have a national “ombudsman” system for payments.
In conclusion, we advise to avoid the ambiguous wording. EBA should provide a clear definition of “Channel” to enter PSU complaints (e.g. is it one unique entity providing an online form, snail mail…).
We advise EBA to clarify that only one entity should be installed for receiving complaints per country and that PSUs should be given multiple methods of entering complaints with this entity (which are collected in a single database with the same criteria and documentation requirements regardless of method of receiving the complaint).
But for complaint issued by PSU Associations, we recommend to request the explicit list of PSUs (name and address) that this PSU Association is representing in the complaint process. The objective is to limit the pure lobbying complaints and multiple individual complaints investigations.
Because the PSD2 can be implemented in slightly different ways in different countries, an adequate decision of infringement can only be made by the home country supervisor.
“3b. information on the general competence of the competent authority in respect of procedures for complaints of alleged infringements of Directive (EU) 2015/2366, and whether the competent authority has forwarded the complaint to another authority or body which may be located in the same or in another country;”
In our opinion the transfer of a complaint from one Country CA to another CA abroad should be clarified.
• From a complainant perspective, who will be responsible for answering or instructing this complaint?
• From a PSP perspective, under which circumstances should this transfer of file be executed and with which CA will the PSP then be interfacing to defend its case?
We expect a PSP will be consulted by the CA before a file related to the PSP is transferred to a foreign CA.
Who will ultimately define if a PSP is in breach of the PSD2?
2) The Guideline 3 does not mention the CA should investigate the complaint and involve the PSP into the complaint investigation process. It is not mentioned either what the notification processes towards the PSP and the arbitration between (1) PSP and the complainants and (2) the PSP and the CA are.
But, in guideline 4, it should be clarified whether the diverse CAs in one country should perform the aggregation in their own individual complaints database logging or if it should be performed globally at a country level.
In case of multiple channels to log a complaint towards a PSP, it is necessary to remove duplicate complaints across the different complaint channels.
We also want to understand how this aggregation will be performed under the guideline 3.1.b, where complaints are passed from or to another country(ies) CA(s).
We recommend that the complaint procedure publication would be available on the supervisory authority web site in every European country, similar to the passporting central register obligation. The link towards this complaint procedure should be documented at the ECB level.
We recommend the CA complaint procedure publication should be available on the national Central Bank website and in every European country, similar to the passporting central register obligation. The link towards this complaint procedure should be documented at the ECB level.
Question 1: Do you agree with the proposed Guideline 1 on the channels through which complainants should be able to submit their complaints of alleged infringements of PSD2? If not, please provide your reasoning.
No, we do not agree with the statement “at least two” in the following text:“Competent authorities should ensure that at least two different channels are available for complainants to submit their complaints of alleged infringement of Directive (EU) 2015/2366 and that these channels are easily accessible for all types of complainants”.
Considering the objective of the EBA guideline is to provide an easy and transparent way for Payment Service Users (PSU) to enter a complaint, we are convinced that only one channel should be available in each member state to submit a complaint. The current statement will provide multiple channels and diverging approaches between Competent Authorities (CA) in Europe.
Only 1 channel will guarantee PSUs they will face a coherent way a complaint is managed. This and a “First In First Out” principle in a complaint treatment by the CA (no different processes depending on the CA channel used) will guarantee that the EBA aggregation objective will be met and also be more accurate (guideline 2).
The unique interface and procedure in the complaint submission will benefit from:
1. a unique approach in the logging of the complaints towards the complainant (coherent reference number, completeness and understanding of the complaints),
2. a unique complaint assessment process and coherent/consistent way for requesting the supporting documentation,
3. a unique central archiving of the complaints & documentations process and a coherent/fair assessment method of all complaints/all PSPs,
4. a unique structuration/classification of complaints allowing accurate aggregation reporting and a better visibility of the issues in the local market,
5. an easy identification of multiple complaints (from lobbying associations) and making sure we do not have association complaints and individual PSU complaints.
6. a guarantee to have an easy traceability in the exchange of information between the CA in different member states (it would mean difficulties in statistics of complaints if reported several times). Including which information has been exchanged by whom towards which CA.
7. a better confidentiality of the collected information (data privacy, in exchange of information between CAs and across countries).
We are convinced the PSD2 aims to improve and simplify the current complaint procedures and doesn’t want to simply duplicate/replicate the existing interfaces which are considered as not accessible to PSUs (as mentioned in chapter 5 page 19 of the EBA guideline EBA/CP/2017/01).
A PSP subject to a complaint investigation expects a fair treatment (to get a level playing field). We believe it is important to face only one CA interface in order to be able to defend and analyze the complainants’ information in a unique and efficient way. PSPs do not want to face multiple interfaces/sensibilities/methods/thinking/interests the diverse complaints channels may have. PSP should also not have to support the costs of the heavy coordination between the CA in the same country (e.g. for similar cases entered via different complaints channels).
We are of the opinion that we should have a national “ombudsman” system for payments.
In conclusion, we advise to avoid the ambiguous wording. EBA should provide a clear definition of “Channel” to enter PSU complaints (e.g. is it one unique entity providing an online form, snail mail…).
We advise EBA to clarify that only one entity should be installed for receiving complaints per country and that PSUs should be given multiple methods of entering complaints with this entity (which are collected in a single database with the same criteria and documentation requirements regardless of method of receiving the complaint).
Question 2: Do you agree with the proposed Guideline 2 on the information to be requested from the complainant when the complaint is submitted, and to be recorded by competent authorities, as and when provided? If not, please provide your reasoning.
On the principle of requesting the defined information, we agree with principle 2.But for complaint issued by PSU Associations, we recommend to request the explicit list of PSUs (name and address) that this PSU Association is representing in the complaint process. The objective is to limit the pure lobbying complaints and multiple individual complaints investigations.
Question 3: Do you agree with the proposed Guideline 3 on reply to complainants? If not, please provide your reasoning.
1) No, we do not agree with guideline 3.1.b: We want the transfer between countries to be clarified. We believe a complaint towards a PSP should be logged in the home country, where the PSP has received its PI license. We consider that the instruction and decision of infringement of the PSD2 can only be taken by the home country Competent Authority performing the supervision of the PSP.Because the PSD2 can be implemented in slightly different ways in different countries, an adequate decision of infringement can only be made by the home country supervisor.
“3b. information on the general competence of the competent authority in respect of procedures for complaints of alleged infringements of Directive (EU) 2015/2366, and whether the competent authority has forwarded the complaint to another authority or body which may be located in the same or in another country;”
In our opinion the transfer of a complaint from one Country CA to another CA abroad should be clarified.
• From a complainant perspective, who will be responsible for answering or instructing this complaint?
• From a PSP perspective, under which circumstances should this transfer of file be executed and with which CA will the PSP then be interfacing to defend its case?
We expect a PSP will be consulted by the CA before a file related to the PSP is transferred to a foreign CA.
Who will ultimately define if a PSP is in breach of the PSD2?
2) The Guideline 3 does not mention the CA should investigate the complaint and involve the PSP into the complaint investigation process. It is not mentioned either what the notification processes towards the PSP and the arbitration between (1) PSP and the complainants and (2) the PSP and the CA are.
Question 4: o you agree with the proposed Guideline 4 on aggregate analysis of complaints of alleged infringements of PSD2? If not, please provide your reasoning.
On the principle of the complaint aggregation, we don’t have an objection.But, in guideline 4, it should be clarified whether the diverse CAs in one country should perform the aggregation in their own individual complaints database logging or if it should be performed globally at a country level.
In case of multiple channels to log a complaint towards a PSP, it is necessary to remove duplicate complaints across the different complaint channels.
We also want to understand how this aggregation will be performed under the guideline 3.1.b, where complaints are passed from or to another country(ies) CA(s).
Question 5: Do you agree with the proposed Guideline 5 on the internal written rules on complaints procedures? If not, please provide your reasoning.
We agree with the guideline that the CA should document their complaint procedure.We recommend that the complaint procedure publication would be available on the supervisory authority web site in every European country, similar to the passporting central register obligation. The link towards this complaint procedure should be documented at the ECB level.
Question 6: Do you agree with the proposed Guideline 6 on the public information to complainants? If not, please provide your reasoning.
We agree with guideline 6 under the condition that only one procedure and one CA is in charge of receiving complaints.We recommend the CA complaint procedure publication should be available on the national Central Bank website and in every European country, similar to the passporting central register obligation. The link towards this complaint procedure should be documented at the ECB level.