14 December 2016
The European Banking Authority (EBA) published today its final draft Regulatory Technical Standards (RTS) specifying the framework for cooperation and exchange of information between Competent Authorities for passport notifications under the revised Payment Services Directive (PSD2). The technical standards will ensure that information about payment institutions and e-money institutions that carry out business in one or more EU Member States is exchanged consistently between the national authorities of the home and host Member States.
The final draft RTS set out a harmonised framework for cooperation and exchange of information between Competent Authorities to facilitate cross-border provision of payment services in the EU internal market. They also address some of the concerns that had been raised by the industry during the consultation period.
In order to enhance transparency, the final draft RTS foresee that payment institutions are informed when the passport notification is transmitted from the Competent Authority in the home Member State to the authority in the host Member State. The template passport notifications were also amended to include the Legal Entity Identifier (LEI), where available.
Furthermore, the final draft RTS require separate templates for agents and distributors in order to increase clarity with regard to the information that is to be provided when a payment institution or e-money institution is using an agent and when an e-money institution is using a distributor when providing services in another EU Member State. However, given the legal remit of the RTS, the EBA was unable to address the related concerns raised during the consultation as to whether or not a passporting activity via an agent or a distributor is to be regarded as an establishment. Instead, the templates cater for both possible scenarios (right of establishment or freedom to provide services) in which an agent or distributor may operate and clarify that the information transmitted to the host Authority regarding the nature of the passporting reflects the assessment of the home Authority. In addition, in order to enhance transparency, in cases where the home Authority considers that the use of agents or distributors does not constitute an establishment, the final draft RTS provide for additional information to be transmitted to the host Authority regarding the circumstances that were taken into account by the home Authority in its assessment.
The EBA also published a diagram to help Competent Authorities of the home Member States identify the templates they have to use.
These final draft RTS have been developed in accordance with Article 28(5) of Directive (EU) 2015/2366 on payment services in the internal market (PSD2), which mandates the EBA to develop draft RTS specifying the framework for cooperation and exchange of information between Competent Authorities for passporting.