Conformity Assessment of Directive 2007/64/EC GERMANY

Transcription

1 Conformity Assessment of Directive 2007/64/EC GERMANY Final Report August Tipik Communication Agency S.A. Avenue de Tervueren 270 B-1150 Brussels Tel Fax TVA BE RCB Fortis Tipik is a Sword Group Company Eco-active business Charter signatory

2 The conformity assessment of Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC has been performed under Framework Service Contract No on the Provision of services in connection with the codification of Community law and with the assessment of the conformity of the laws of Member States with Community law. The conformity assessment of Directive 2007/64/EC concerns at this stage 26 Member States as Poland has not been assessed yet in view of its late implementation of the Directive. The national implementing measures notified by the Member States to the European Commission as a result of the Directive transposition process basically represent the scope of and form the background for the assessment. Reports on each Member State were drafted as a result of the assessment performed and they aim to present the main conclusions and observations on the Directive provisions. The first part of these assessment reports present the notified national implementing measures and additional legislation assessed. The second part provides a general conclusion on the conformity assessment and introduces the work performed as well as presenting cases that raise concerns of conformity according to the method used for assessment. The third and final part of the report covers the core of the assessment report. It takes the form of a concordance table, whereby the national provisions implementing the Directive provisions are listed and assessed. In addition, a general report also aims to provide a comprehensive overview of all assessments. The views expressed in the assessment reports and the general report are those of the authors alone. Publication of this report on the Commission's web-site does not mean that the Commission endorses the views expressed and the assessments carried out. The Commission does not guarantee the accuracy of the data included in the reports, nor does it accept responsibility for any use made thereof. Reproduction is authorised provided the source - Tipik Communication Agency SA - is acknowledged.

3 Conformity Assessment of Directive 2007/64/EC Germany GENERAL COMMENTS AND OBSERVATIONS List of the national Implementing Measures (notified to the European Commission) SUMMARY General observations and Comments Gesetz zur Umsetzung der Verbraucherkreditrichtlinie, des zivilrechtlichen Teils der Zahlungsdiensterichtlinie sowie zur Neuordnung der Vorschriften über das Widerrufs- und Rückgaberecht vom 29. Juli 2009, BGBl Teil I Nr. 49 vom 3. August 2009 Act on the Implementation of the Consumer Credit Directive, the civil law part of the Payment Services Directive as well as the restructuring of the arrangements for cancellation and return policy of 29 July 2009, BGBl Part I No. 49 of 3 August 2009 Gesetz zur Umsetzung der aufsichtsrechtlichen Vorschriften der Zahlungsdiensterichtlinie vom 25. Juni 2005, BGBl Teil I Nr. 35 vom 29. Juni 2009 Act to implement the regulatory requirements of the Payment Services Directive of 25 June 2009, BGBl. Part I No. 35 of 29 June 2009 This law adopted in 2009 mainly amends the Civil Code (BGB) as well as the Introductory Act to the BGB (EGBGB) with the purpose of bringing German legislation in line with Directive 2007/64/EC. It entered into force on 29 July For the present conformity assessment it was used as the guiding legal act. However, it was not sufficient to take this act as the only basis of the assessment. Hence, further legislation used for the assessment is listed below. This includes the law on supervision of payment services (ZAG), which aims to transpose title II of the Payment Services Directive 2007/64/EC. Furthermore it mainly amends the German Banking Act (KWG). It entered into force on 29 June For the present conformity assessment it was used as the guiding legal act. However, it was not sufficient to take this act as the only basis of the assessment. Hence, further legislation used for the assessment is listed below. List of additional National Implementing Measures (referred to in the Conformity Assessment) SUMMARY General observations and Comments Gesetz über die Beaufsichtigung von Zahlungsdiensten (Zahlungsdiensteaufsichtsgesetz ZAG) vom 26 Juni 2009, zuletzt geändert durch Art. 15 des Gesetzes vom 9. Dezember 2010 (BGBl. S. 1900) Act on the Supervision of payment services of 26 June The ZAG regulates the supervision of payment services, especially the permission to operate a payment service institution, the basic requirements to do so as well as the measures which can be taken by the competent authorities to prevent offences against the ZAG. The ZAG was adopted on 26 June 2009 and was last amended on 9 December

4 2009, last amended by Art. 15 of the Act of 9 December 2010 (BGBl. p. 1900) Hereinafter referred to as: ZAG Gesetz über das Kreditwesen (Kreditwesengesetz - KWG) vom , zuletzt geändert durch Artikel 2 des Gesetzes vom 9. Dezember 2010 (BGBl. I S. 1900) German Banking Act of , last amended by Art. 2 of the Act of 9 December 2010 (BGBl. p. 1900) Hereinafter referred to as: KWG Bürgerliches Gesetzbuch in der Fassung und Bekanntmachung vom 2. Januar 2002, zuletzt geändert durch Artikel 1 des Gesetzes vom 17. Januar (BGBl. I S. 34) Civil Code in the version promulgated on 2 January 2002, last amended by Art. 1 of the Act of 17 January (BGBl. p. 34) Hereinafter referred to as: BGB Einführungsgesetz zum Bürgerlichen Gesetzbuch in der Fassung und Bekanntmachung vom 17. März 2003, zuletzt geändert durch Gesetz vom 14. September 2009 (BGBl. S. 2814) Introductory Law to the Civil code in the version promulgated on 17 March 2003, last amended by Act of 14 September 2009(BGBl. 2814) Hereinafter referred to as: EGBGB Verordnung über die angemessene Eigenkapitalausstattung von Zahlungsinstituten (Zahlungsinstituts-Eigenkapitalverordnung ZIEV) in der Fassung und Bekanntmachung vom 15. Oktober 2009 (BGBl Teil I Nr. 70) Regulation on capital adequacy of payment institutions (Payment Institution Equity regulation- ZIEV) in the The KWG regulates the supervision of credit institutions, especially their supervision by the Federal Agency, the cooperation with the German Central Bank as well as the financial requirements of such institutions. The KWG was adopted on 10 July 1961 and was last amended on 9 December The BGB regulates the main provisions for the Civil Right. The main amendments by the Act on the Implementation of the Consumer Credit Directive, the civil law part of the Payment Services Directive as well as the restructuring of the arrangements for cancellation and return policy can be found in 675a to 676c. They feature the obligations for the performing of a payment service, especially the liability of payment service providers, the duty to provide information as well as termination of a payment service contract. The BGB was adopted on 2 January 2002 and was last amended on 17 January. The EGBGB, especially Art. 248, concentrates on the specifications of the duty of a payment service provider to inform its payment service user. The EGBGB was adopted on 17 March 2003 and last amended on 14 September The ZIEV regulates the adequacy of payment institutions especially the basis of calculation of such adequacy. It therefore states different methods which are used in accordance with the ZAG. The ZIEV was adopted on 15 October

5 version promulgated on 15 October 2009(BGBl. 2009, Part I, No. 70) Hereinafter referred to as: ZIEV Verordnung über die Rechnungslegung der Zahlungsinstitute in der Fassung und Bekanntmachung vom 2. November 2009 (BGBl. 2009, Teil I, Nr. 72) Regulation on the accounting of payment institutions in the version promulgated on 2 November 2009 (BGBl Part I, No. 72) Hereinafter referred to as: RechZahlV Verwaltungsverfahrensgesetz in der Fassung der Bekanntmachung vom 23. Januar 2003 (BGBl. I S. 102), das zuletzt durch Artikel 2 Absatz 1 des Gesetzes vom 14. August 2009 (BGBl. I S. 2827) geändertwordenist Administrative Procedural Law in the version promulgated on 23 January 2003, last amended by Act of 14 August 2009 (BGBl. I p. 2827) Hereinafter referred to as: VwVfG Verwaltungsgerichtsordnung in der Fassung der Bekanntmachung vom 19. März 1991 (BGBl. I S. 686), die zuletzt durch Artikel 9 des Gesetzes vom 22. Dezember 2010 (BGBl. I S. 2248) geändertwordenist Code of Administrative Court Procedure in the version of the promulgation of 19 March 1991 (Federal Law Gazette [BGBl.]) Part I p. 686, most recently amended by Article 3 of the Act of 21 August 2009 (Federal Law Gazette Part I p. 2870) Hereinafter referred to as: VwGO The RechZahlV regulates the accounting of payment institutions. It was adopted on 2 November The VwvfG is the basic act on administrative procedures which sets up rules on the entering into force and legal force of administrative acts. In addition the VwVfG sets up rules on the behavior of administrative authorities. It was adopted on 14August The VwGO is the code of procedural law for administrative courts. It sets up rules on legal action and the different means of applying before the court. It was adopted on 19 March

6 CONCLUSIONS In order to better understand the conclusions made and the scope of application of the National Implementing Measures (hereinafter in the Report referred to as NIMs) used for the analysis, it is necessary to briefly describe the legal framework of the payment services in Germany. Thereafter, a brief explanation regarding the way the NIMs have transposed the provisions of Directive 2007/64/EC will be presented. The analysis will be finalised with the main conclusion briefly explaining terminological discrepancies, scope of application and cases of non-conformity/partial conformity. 1. The NIMs and the legal framework for payment services in Germany The system of payment services in Germany defines 5 groups of payment service providers which include credit institutions, payment institutions, electronic money institutions, the European Central Bank, the German Bundesbank and other central banks in the European Union and the federal government, the federal states, municipalities and municipal associations. The payment service contract is a special form of the management contract, for which the legal basis can be found in 675c - 676c BGB. A distinction is made between the single payment under 675f (1) BGB and a payment contract 675f (2) BGB. All consulted and assessed measures are listed above. The general character of the German legislation on PSDs is also commented throughout the conclusions. Germany did not transpose the Directive as a whole but amended its existing laws and implemented the ZAG. The part of the Directive concerning civil law was transposed into German legislation by the amendment of BGB as well as the EGBGB. The supervisory part of the Directive was mainly transposed by the ZAG as mentioned above. Additional regulations adopted on the basis of ZAG provide for more specific requirements; they should be regarded as secondary implementing legislation. Most of the provisions of Directive 2007/64/EC were transposed into German law in a correct way. However, some cases of non-conformity revealed in the course of the assessment. First, the ZAG as well as the BGB have their own structure and differ from Directive 2007/64/EC. With regard to the scope it is often necessary to examine both the ZAG and the BGB to recon whether the provisions are applicable. Secondly, a lack of clarity regarding definitions of Directive 2007/64/EC should be acknowledged. Many definitions provided for in Article 4 of the Directive were transposed in a conform way. Yet the definitions are spread throughout the ZAG and the BGB and are not to be found in a single provision as provided by the Directive. In addition, the ZAG authorises the Federal Agency to issue regulations for further and more detailed provisions like the RechZahlV. Those can sometimes lead to uncertainty concerning the scope of the provisions as such. ZAG and BGB should be rather considered as the main law laying down the main rules; specific regulations form secondary legislation which implements specific rules. Finally the liability of payment service providers must be derived from the general rules of the BGB and is not expressly mentioned in the relevant provisions. 2. Main Conclusion: Cases of Non-Conformity/Partial Conformity 2.1. Explanatory note on the assessment: Conformity applies to cases whereby the national provisions follow all requirements of the corresponding Directive provision. Some requirements of the Directive provision may not be explicitly transposed. National provisions can however be considered as conformed as far as the silence does not affect the proper implementation of all requirements and that the 4

7 missing ones can be inferred. Partial conformity applies to cases whereby the national provisions do not follow all the requirements of the Directive provision, or are silent about requirements which are considered minor but necessary. In cases of partial conformity, the interpretation of the national provision does not hamper the proper implementation of the Directive provision as a whole, and, missing requirements cannot be inferred. Non conformity applies to cases whereby the Directive provision is not transposed or the national provisions do not follow either, all requirements of the Directive provision, or, the main ones. In cases of non-conformity, the interpretation of the national provisions hamper the proper implementation of the Directive provision as a whole, and missing requirements cannot be inferred either. Also considered are additional requirements and exemptions which hamper the proper implementation of the Directive provision. The cases where there are no headings relate to cases where the national provision could not be located or found, or to options laid down by the Directive provision that Member States do not seem to choose to apply, or, to obligations resting upon the European Commission (the Commission) Scope The scope of the German rules in general complies with the provisions of Directive 2007/64/EC Terminology The terms provided by the ZAG and the BGB are altogether usable. However the term post giro office does not exist in Germany any longer. The German Federal Post (Deutsche Bundespost) was privatized in 1994 so that post giro offices under the Directive do not exist any longer in Germany. Many irregularities could be observed in the assessment of the Definition provided by Article 4 of the Directive and their corresponding transposition into national law. One major issue which often appears in German legislation is the fact that many German provisions lack clear definitions of the term provided by the Directive. Despite the lack of clear definitions the use of the terms in question in the context of the relevant provisions shows that those terms correspond with the intention of the Directive. In addition the system of providing definitions at the beginning of an act is unusual to the German Civil Law. Even though the BGB does provide some definitions at its introductory part most terms are not further defined. It is rather a question of putting the terms in the context of the provisions they are used in when wanting to identify the meaning of a term. However, it has to be noted that the Directive aims at full harmonisation pursuant to Article 86(1) of the Directive. For this reason clear definitions have to be provided by the NIMs in order to guarantee an equal application of the Directive s provision in each Member State. For this reason the observation of non-conformity was made where the context of a German provision show a conform use of the term in question but still lacks a clear definition Provisions that raise issues of non-conformity: In detail the following terms were transposed in a non-conform manner by the German NIMs: - payer, Article 4(7) of the Directive - payee, Article 4(8) of the Directive - payment service provider, Article 4(9) of the Directive - payment service user, Article 4(10) of the Directive - framework contract, Article 4(12) of the Directive - funds, Article 4(15) of the Directive 5

8 - direct debit, Article 4(28) of the Directive - branch, Article 4(29) of the Directive - group, Article 4(30) of the Directive Furthermore it could be observed that some definitions provided by Article 4 of the Directive find no corresponding transposition into German legislation at all. In detail the terms durable medium and business day pursuant to Article 4 (25), (26), (27) of the Directive find no corresponding transposition into German legislation. In the case of the term durable medium it has to be mentioned that according to the general rules of the Civil Law a text is either a written document or a document on a durable medium. How this durable medium should be in detail remains unclear. For this reason the observation of non-conformity was made. In the case of the term business day it could be observed that this term corresponds with the term working day which is used throughout the BGB. In conclusion the use of the two different terms throughout the Directive and the BGB does not lead to non-conformity. The only case of partial conformity concerns the definition of the term consumer in Article 4 of the Directive into German law. Article 4(11) of the Directive speaks of this term in connection with payment services. The German transposition provides a rather general definition without the connection to payment services. This is owed to the fact that the German definition is located at the beginning of the BGB and therefore applies for all following provisionsa technique which is broadly used not only for definitions in the BGB-. However keeping in mind again the aim of full harmonisation the observation of partial conformity had to be made Provisions that raise issues of partial conformity: - Article 3f of the Directive on money exchange businesses was not fully transposed. This Article provides further information on how these money-exchange businesses should be. This further definition is missing in the German transposition. - Article 5(j) of the Directive was not fully transposed. This Article deals with list the information which has to be handed to the competent authority when applying for the admission of a payment institution. In detail the names of statutory auditors as well as audit firms have to be handed in. The Article was implemented by 8(3)(10) which lacks provisions about auditors. In general the German legal system does distinguish between audit firms and statutory auditors. It appears that the application of audit firms has simply been forgotten. However this gap might lead to inaccuracies. - Article 9(1)(b) of the Directive on safeguarding requirements was not fully transposed. This Article states that payment amounts of a payment institution have to be protected against insolvency or other claims. It was implemented by 13(1)1)(c) which only concentrates on the case of insolvency and does not cover other eventual claims of other creditors of the payment service. Even though those cases might be included the gap bears the risk that eventual claims are endangered due to the lack of a clear legal basis. - Article 10(2) of the Directive on granting admission was not fully transposed. This Article grants admission in case all information applies the requirements of Article 5 of the Directive. As described above the information requirements were not fully transposed by the German legislator as a result, this transposition cannot be considered as being conform either. - Article 17(8) of the Directive on notification of a payment service provider that agents or branches act on his behalf. This provision was implemented by 19(2) and 25(1) of the ZAG. Pursuant to this provision the duty to inform a payment service user is limited to the information about agents. A corresponding provision taking into account branches is missing in German legislation. - Article 28(2)(b) of the Directive on access to payment systems. This Article states makes an exception from the general rule of Article 28(1) of the Directive that the competent authorities refrain from restriction towards the payment service providers for certain forms of payment service providers. The Article was implemented by 7(4)(2) of the which widens this exception to company groups. This exception cannot be found in the provision of the Directive. The German transposition therefore goes beyond the regulatory content of the Directive. - Article 45(2) of the Directive was not fully implemented. It states a termination of the payment contract free of charges. An obligation concerning a termination free of charges is not stated by 675h(2). It has to be taken into consideration that a termination of contract which runs more than 12 months is of the essence of this provision and a major concern 6

9 of the Directive which seeks for consumer protection. The transposition can therefore only be considered as being partially conformed. - Article 49(2) of the Directive on fees on currency exchanges was not fully implemented. The option that a point of sale might offer a currency exchange and therefore would have to display all charges to the party concerned is not mentioned by the German provision. - Article 75(1) 4 th subparagraph of the Directive was not fully implemented. This Article is concerned with the non-execution or defective execution of payment transactions. Pursuant to this provision the payment service provider of the payer is obliged to make immediate efforts to trace the non-executed or definitively- executed payment transaction and notify the payer of the outcome of this investigation. The duty to inform the payer in this respect was transposed by 675y(5) of the. It only misses the addition immediate. It is this lack of qualification of the payment payer s payment service provider which leads to partial conformity. This conclusion is owed to the fact in the German system of liability the addition immediate -which exists in several other German provisions- causes a higher degree of duty to the obliged party. The transposition can therefore not be considered as linguistically inaccurate. It is rather missing a central aspect in the system of liability pursuant to the Directive. The transposition is therefore only partially conforming. - Article 75(2) 4 th subparagraph of the Directive on the liability in cases of not or false executed transactions was not fully transposed. This Article states the obligation of a payment service provider to immediately trace back the false or not executed transaction. It was implemented by 675y(5) of the which misses the term immediate. As this term defines the duties of a payment service provider and may raise the issue of compensation it had to be transposed Provisions that could not be identified: - Article 6(1) of the Directive on initial capital, - Article 10(3) of the Directive on granting an admission, - Article 15(1) of the Directive on accounting and statutory audit, - Article 22(3) of the Directive on the right to apply to courts, - Article 24(2) of the Directive on exchange of information, - Article 27(1) of the Directive on notification and information,,- Article 35 of the Directive on the scope, - Article 49(2) 2 nd subparagraph of the Directive on currency and currency conversion, - Article 56(1) introductory wording of the Directive on the obligations of the payment service user in relation to payment instruments, - Article 68(2) of the Directive on the scope, - Article 76 of the Directive on additional financial compensation, - Article 81(2) of the Directive on penalties Options that Germany has chosen to transpose into its national legislation: The Directive sets up several options towards the national legislator to implement certain provisions or to refrain from implanting the corresponding provisions of the Directive. The following options were transposed into German legislation: - Article 2(3) of the Directive allows Member States to choose to exclude the institutions as listed in Article 2 of the Directive 2006/48/EC. Germany chose to exclude those institutions from the application area of the present Directive. 7

10 - Article 7(3) of the Directive sets up the option on the non-application of PSD on-going capital requirements when a payment institution is included in the consolidated supervision of the parent credit institution pursuant to Directive 2006/48/EC. The German legislator chose to adopt this option through implementing 12(3) of the. This provision excludes institutions under the Directive 2006/48/EC form the area of application of the present Directive especially the requirements for own capital of institutions. Condition is that these institutions fulfil the requirements of the Banking Act which is the conform transposition of the relevant Articles of Directive 2006/48/EC. - Article 9(2) of the Directive sets up an option with regard to the calculation of safeguarding requirements when funds can be used for future payment transactions and for non-payment services. This option was implemented by the German legislator through 13 of the. This provision allows calculating the safeguarding requirements on the basis of historical data. This process is subject to the consent of the Federal Agency. - Article 9(3) of the Directive sets up an option on the application of safeguarding requirements to non-hybrid payment institutions. Those institutions would normally not be subject to the regulatory content of the Directive. Article 9(3) of the Directive therefore allows the national legislator to extend the Directive s area of application in this regard to non-hybrid payment institutions. Although the German provisions remain silent on this 13 which provides rules on own capital of institutions does not specify which institutions are subject to this provision. As a result it is applicable on non-hybrid payment institutions as well. - Article 33 of the Directive sets up an option to impose the burden of proof with regard to information requirements to the payment service provider. The German legislator therefore implemented 675d(2) of the which applies this option. - Article 52(3) of the Directive sets up an option on the interdiction or limitation of surcharging practices. The German legislator chose to implement 675f(5) of the which allows payment service provider to limit surcharges. - Article 53(2) of the Directive is concerned with low-value and e-money payment. It includes the option to reduce or double the amounts which define low-value or e-money payments as far as national transactions are concerned. The German legislator implemented 675i(1) which doubles the border of low-value payments to EUR Article 53(2) of the Directive sets up the option to increase the amounts for prepaid instruments up to EUR 500 if low-value or e-money payments are involved. The German legislator did not apply to this option. - Article 53(3) of the Directive sets up the rule that system of liability for unauthorised payment transactions shall also apply to e-money transactions. According to this provision there is no liability in cases where the payer's payment service provider does not have the ability to freeze the payment account or block the payment instrument. Article 53(3) of the Directive then sets up the option to limit this exception to accounts or instruments of certain value. The German legislator implemented 675i(3) of the which excludes low-value payment instruments with a maximum value of 200 from this derogation. - Article 61(3) of the Directive provides rules on the liability of the payer. Its sets up the option to reduce the payer's liability for unauthorised use of payment instrument taking into account the nature of personalised security features of the payment instrument. The German legislator did not apply to this option. - Article 88(3) of the Directive deals with institutions which commenced their business before 25 December The Directive sets up the option to free this company from the need of authorisation under Article 10 of the Directive. The German legislator implemented 35(4) of the which has a corresponding regulatory content. - Article 88(4) of the Directive provides rules on institutions which commenced their business before 25 December 2007 and would be subject to the waiver pursuant to Article 26 of the Directive. This provision sets up the option that these institutions can continue their business up to a period of three years without applying for a waiver pursuant to Article 26 of the Directive. The German legislator did not apply to this option Options that Germany has chosen not to transpose into its legislation: - Article 9(4) of the Directive sets up an option on the application of safeguarding requirements only to funds that individually exceed EUR 600. The German legislator did not apply to this option. - Article 26(1) of the Directive sets up an option on the waiver of authorisation and supervision requirements for small payment institutions. The German legislator did not apply to this 8

11 option. - Article 26(4) of the Directive sets up an option on limitation of the activities carried out by waived entities under Article 26. The German legislator did not apply to this option. - Article 30(2) of the Directive sets up an option on the identical application of information requirements to micro enterprises and to consumers. The German legislator did not apply to this option. - Article 34 of the Directive is concerned with low value payments. Article 34(2) of the Directive sets up an option with regard to the reduction or doubling of the amounts as listed in Article 34(1) of the Directive in cases where only national payment transactions are concerned. The German legislator chose to limit national low-value payments to an amount of EUR Article 34(2) of the Directive also provides the option to increase of the amounts for prepaid instruments up to EUR 500. The German legislator did not apply to this option. - Article 45(6) of the Directive sets up an option on more favourable conditions on the termination of framework contracts. The German legislator did not apply to this option. - Article 47(3) of the Directive sets up the option that national legislation may provide that information of the payment service provider to the payer may be provided once a month free of charge. The German legislator did not apply to this option. - Article 48(3) of the Directive sets up an option on the provision of information to the payee on paper once a month free of charge. The German legislator did not apply to this option. - Article 51(2) of the Directive sets up an option on the non-application of out-of-court procedures to enterprises. The German legislator did not apply to this option. - Article 51(3) of the Directive sets up an option on the application of Title IV to micro-enterprises in the same way as to consumers. The German legislator did not apply to this option. - Article 72 of the Directive sets up the option to impose shorter maximum execution times for purely national payment transactions. The German legislator did not apply to this option. 9

12 Article No. EN Act, Article No. EN Conformity Assessment Art. 1(1), intr. wording TITLE I SUBJECT MATTER, SCOPE AND DEFINITIONS Article 1 Subject matter 1. This Directive lays down the rules in accordance with which Member States shall distinguish the following six categories of payment service provider: N/A N/A Article 1(1), introductory wording of the Directive states the intention of the Directive which is not meant to be transposed as such. Art. 1(1)(a) (a) credit institutions within the meaning of Article 4(1)(a) of Directive 2006/48/EC; 1(1) point 1 1(1)(1) ZAG Payment service providers are: 1. Credit institutions within the meaning of Article 4, paragraph 1 (a) of Directive 2006/48/EC of the European Parliament and of the Council of 14 June 2006 on the taking up and pursuit of business of credit institutions (OJ EU No. L 177, p.1) which are authorised to conduct business in Germany, Article 1(1)(a) was duly implemented by 1(1) of the ZAG. The reference to Article 4(1)(a) of Directive 2006/48/EC was transposed literally by Paragraph 1(1) of the. 1(1)(a) of the additionally provides the full title of the Directive 2006/48/EC as well as its location in the EU Official Journal. Art. 1(1)(b) (b) electronic money institutions within the meaning of Article 1(3)(a) of Directive 2000/46/EC; 1(1) point 2 1(2)(2) ZAG 2. electronic money institutions within the meaning of Article 1(1)(b) of Directive 2009/110/EC of the European Parliament and of the Council of 16 September 2009 on the taking up, pursuit and prudential supervision of the business of electronic Article 1(1)(b) of the Directive was duly implemented by 1(2)(2) of the. 1(1) point (2) of the refers to Article 1(1)(b) of the Directive 2009/110/EC which amended Directive 2000/46/EC. The definition of e-money- 10

13 money institutions (OJ L 267, , p. 7) institutions remains the same so that the reference to Directive 2009/110/EC presents a conform transposition. Art. 1(1)(c) (c) post office giro institutions which are entitled under national law to provide payment services; N/A N/A A German provision defining the phrase post giro institution could not be found. In German legislation an institution as such does not exist any longer after the postal business was privatised in Germany. Art. 1(1)(d) (d) payment institutions within the meaning of this Directive; 1(1) point(5); 2a ZAG 1(1)(5) ZAG 5. Companies that provide professional payment services or payment services that require professionally organized business, others than falling under points 1 to 4(payment institution). The term payment institution under 1(1)(5) of the is used according to the Directive. The transposition is therefore conform. 1(1)(2a) ZAG (2a) Institutions within the meaning of this Act are the payment institutions within the meaning of paragraph 1, point 5 and the electronic money institutions within the meaning of 1asubparagraph 1, point 5. Art. 1(1)(e) (e) the European Central Bank and national central banks when not acting in their capacity as monetary authority or other public authorities; 1 (1) point 4 1(1)(4) ZAG 4. the European Central Bank, the German German Federal Bank and other central banks of the European Union or other states concerned in the Agreement on the European Economic Area, when not acting in their capacity as monetary authorities or other authorities and Article 1(1)(e) of the Directive was duly implemented by 1(1)(4) of the. The German provision additionally divides between central banks of the European Union as well as banks of other States of the Agreement on the European Economic Area. As the Directive has the same scope as the German provision this division only represents a clarification by the German legislator. Art. 1(1)(f) (f) Member States or their regional or local authorities when not acting in their 1(1) point 3 1(1)(3) ZAG 3. the Federation, the Federal States 11

14 capacity as public authorities. (Länder), municipalities and municipal associations, as well as associations of the federal or federal state administration when not acting sovereign, 1(1)(3) uses the term when not acting sovereign instead of the Directive s formulation when not acting in their capacity as public authorities. However when local authorities do not act in their capacity as public authorities they cannot act sovereign as well. For this reason the transposition has to be considered conform. Art. 1(2) 2. This Directive also lays down rules concerning transparency of conditions and information requirements for payment services, and the respective rights and obligations of payment service users and payment service providers in relation to the provision of payment services as a regular occupation or business activity. N/A N/A Article 1(2) of the Directive rather states one of the general intentions of the Directive. The intentions were not transposed as such by the German legislator. Therefore each German provision has to be checked whether being conform with the general intention pursuant to the Directive. The author will come back to this intention at the relevant points. For further information on this subject matter the author refers to the observational part. Art. 2(1) Article 2 Scope 1. This Directive shall apply to payment services provided within the Community. However, with the exception of Article 73, Titles III and IV shall apply only where both the payer's payment service provider and the payee's payment service provider are, or the sole payment service provider in the payment transaction is, located in the Community. 6(1), 53c(1) of the KWG, 675d(1) of the 53c(1) of the KWG The Federal Ministry of Finance is authorised, by ordinance 1. to determine, that the provisions of this law on foreign companies based in another state of the European Economic Area shall apply also to undertakings located in a third country, to the extent which is necessary for the right of establishment or to provide services or for the supervision of a consolidated basis following an Agreement between the European Communities and third countries; 6(1) of the KWG (1) The Federal Agency shall exercise supervision over the institutions in accordance with the provisions of this Act. 675d(1) of the Article 2(1) of the Directive finds no direct transposition into German legislation. Yet taking into consideration the regulatory content of 6(1), 53c(1) of the KWG and 675d(1) BGB it can be concluded that the German system of payment services applies its provision in a way which goes in line with the one of the Directive. Concerning the supervisory part of the Directive the relevant German provisions is 6(1) of the KWG. The provision names the Federal Agency as the competent authority in terms of supervision. This provision does not make any further differences between German payment institutions or those of other Member States. The services which are then provided by the payment institutions are thus subject to the supervision of the Federal Agency regardless the origin of the payment institution. In addition 53c(1) of the KWG provides the authorisation of the Ministry of Finances to pass regulation on the supervision of payment institutions who are located outside 12

15 (1) Where payment services are provided, payment service providers must inform payment service users of the circumstances laid down in Article 248 sections 1 to 16 of the Introductory Act to the German Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuch] in the form provided for therein. This does not apply to the provision of payment services in the currency of a state outside the European Economic Area or to the provision of payment services in which the payment service provider of the payer or payee is located outside the European Economic Area. the EEA. This authorisation is limited to the objective of guaranteeing free movement of services and the right of establishment of branches. Payment services which are provided within the EEA are direct or indirect subject to the supervision of the Federal Agency. Direct in cases where the service is provided in Germany and indirect where the service is provided in another Member State. 675d(1) of the is the relevant provision transposing the civil rights part of the Directive. It provides the duty of payment service providers to inform payment service users according to Article 248 of the EGBGB 2010 which is a conform transposition of the relevant provisions of the Directive. It limits its scope to payment services which are provided within the EEA. In conclusion the supervision as well as the obligations derives from the provision of payment services are limited to payment services within the EEA as set up in the Directive. The transposition is therefore conform. Art. 2(2) 2. Titles III and IV shall apply to payment services made in euro or the currency of a Member State outside the euro area. 675d(1) of the 675d(1) of the (1) Where payment services are provided, payment service providers must inform payment service users of the circumstances laid down in Article 248 sections 1 to 16 of the Introductory Act to the German Civil Code [Einführungsgesetz zum Bürgerlichen Gesetzbuch] in the form provided for therein. This does not apply to the provision of payment services in the currency of a state outside the European Economic Area or to the provision of payment services in which the payment service provider of the payer or payee is located outside the European Economic Area. The only German provision which is concerned with a distinction between different kind of currencies is 675d(1) of the BGB. It states that the duty of payment service providers to inform the payment service users does only apply in cases where a payment service in euro or another currency of a country of the Euro zone is concerned. It therefore meets the requirements as set up in Article 2(2) of the Directive. 13

16 Art. 2(3) 3. Member States may waive the application of all or part of the provisions of this Directive to the institutions referred to in Article 2 of Directive 2006/48/EC, with the exception of those referred to in the first and second indent of that article. 1(12) 1(12) ZAG Payment services provided by the Credit Bank for Reconstruction are not considered to be payment services pursuant to this act. Article 2(3) of the Directive sets out an option. The German legislator applied this option through 1(12) of the. Article 2(3) of the Directive refers to Article 2 of Directive 2006/48/EC. It allows Member States to exclude institutions listed in Article 2 of Directive 2006/48/EC form the scope of the present Directive. In respect to Germany the institution concerned by this ruling is the Credit Bank for Reconstruction (KfW). According to 1(12) of the the Credit Bank for Reconstruction is excluded from the scope of the ZAG. It is therefore not a payment institution pursuant to the German provision. The transposition of the option as set out by the Directive is therefore conform. Art. 3, intr. wording Article 3 Negative scope This Directive shall apply to none of the following: 1(10) point 1 1(10)(1) ZAG Payment services are not: Article 3 introductory wording of the Directive was duly implemented by 1(10) of the. The German provision directly refers to payment institution rather than speaking of the area of application of the Directive. Nevertheless negative scope of the term payment institution is meant by clause 1 of Article 3 of the Directive as well. The transposition is therefore conform. Art. 3(a) (a) payment transactions made exclusively in cash directly from the payer to the payee, without any intermediary intervention; 1(10) point 1 1(10)(1) ZAG 1. payment transactions made exclusively in cash directly from the payer to the payee, without any intermediary intervention; Article 3(a) of the Directive was duly implemented by 1(10) point (1) of the. The German provision only differs in terms of formulation as it speaks of payment services are not whereas the Directive speaks of This Directive shall apply to none of the following which means the same thing. The formulation hereafter is identical. For this reason the transposition is conform. 14

17 Art. 3(b) (b) payment transactions from the payer to the payee through a commercial agent authorised to negotiate or conclude the sale or purchase of goods or services on behalf of the payer or the payee; 1(10) point 2 1(10)(2) ZAG 2. payment transactions from the payer to the payee through a commercial agent or a central regulator authorised to negotiate or conclude the sale or purchase of goods or services on behalf of the payer or the payee; 1(10)(2) distinguishes between commercial agents and central adjuster. In general a commercial agent is a person who solicits and procures business from potential customers on behalf of one or more principals, usually against payment of a percentage of the realised sales revenue as commission. Central Regulation means the processing of accounts sales contracts by a central office. Both the commercial agent and the central adjuster can be summoned up under the phrase commercial agent. The exemption as stated by 1(10) point (2) is therefore conform. Art. 3(c) (c) professional physical transport of banknotes and coins, including their collection, processing and delivery; 1(10) point 3 1(10)(3) ZAG 3. professional physical transport of banknotes and coins, including their collection, processing and delivery; The provision of the Directive is transposed literally by 1(10)(3) due to the same wording of both provisions. Art. 3(d) (d) payment transactions consisting of the non-professional cash collection and delivery within the framework of a nonprofit or charitable activity; 1(10) point 15 1(10)(15) ZAG 15. payment transactions consisting of the non-professional cash collection and delivery within the framework of a nonprofit or charitable activity; The provision of the Directive is trans-posed literally by 1(10)(15) due the same wording of both provisions. Art. 3(e) (e) services where cash is provided by the payee to the payer as part of a payment transaction following an explicit request by the payment service user just before the execution of the payment transaction through a payment for the purchase of goods or services; 1(10) point 4 1(10)(4) ZAG 4. services where cash is provided by the payee to the payer as part of a payment transaction following an explicit request by the payment service user just before the execution of the payment transaction through a payment for the purchase of goods or services; The provision of the Directive is transposed literally by 1(10)(4) due to the same wording of both provisions. 15

18 Art. 3(f) (f) money exchange business, that is to say, cash-to-cash operations, where the funds are not held on a payment account; 1(10) point 5 1(10)(5) ZAG 5. money exchange business which are carried out in cash, PARTIALLY Pursuant to 1(1)(5) only includes money exchange businesses which are settled in cash. Article 3(f) of the Directive gives further information on how these cash-to-cash operations should be. The German transposition lacks further details of such kind. The transposition can therefore only be considered as being partially conform. Art. 3(g) (g) payment transactions based on any of the following documents drawn on the payment service provider with a view to placing funds at the disposal of the payee: 1(10) point 6 1(10)(6) ZAG 6. payment transactions based on any of the following documents drawn on the payment service provider with a view to placing funds at the disposal of the payee: The provision of the Directive is trans-posed literally by 1(10)(6) due to the same wording of both provisions. Art. 3(g)(i) (i) paper cheques in accordance with the Geneva Convention of 19 March 1931 providing a uniform law for cheques; 1(10) point 7 lit. (a) ZAG 1(10)(7)(a) ZAG a) Paper cheques in accordance with the Cheque Act or a similar paper cheque under the law of another Member State of the European Union or another State Party to the Agreement on the European Economic Area, The provision of the Directive was duly implemented by 1(10)(7)(a). The reference to the German Cheque Act is conform with the sense of the Directive as Geneva Convention is literally transposed by the German Cheque Act. The end of 1(10)(7)(a) is the transposition of Article 3(g)(i) of the Directive. Art. 3(g)(ii) (ii) paper cheques similar to those referred to in point (i) and governed by the laws of Member States which are not party to the Geneva Convention of 19 March 1931 providing a uniform law for cheques; 1(10) point 7 lit. (a) ZAG 1(10)(7)(a) ZAG a) Paper based cheques in accordance with the Cheque Act or a similar paper based cheque under the law of another Member State of the European Union or another State Party to the Agreement on the European Economic Area, Article 3(g)(ii) of the Directive was duly implemented by 1(1) point (7) lit. (a) of the. The German provision only refers to the German Scheckgesetz. This provision is a conform transposition of the Geneva Convention of March 1931so that the references in the German provision is conform. Furthermore the classification between Member States of the European Union and those of the Agreement on the European Economic Area is 16

19 conforming as explained above. Art. 3(g)(iii) (iii) paper-based drafts in accordance with the Geneva Convention of 7 June 1930 providing a uniform law for bills of exchange and promissory notes; 1(10) point 6 lit. (b) ZAG 1(10)(6)(b) ZAG b) Paper based drafts in accordance with the Bills of Exchange Act or a similar paper based draft under the law of another Member State of the European Union or another State Party to the Agreement on the European Economic Area, Article 3(g)(iii) of the Directive was duly implemented by 1(10)(6)(b) of the. The German provision refers to the German Wechselgesetz which is a conform transposition of the Geneva Convention of 7 June 1930 providing a uniform law for bills of exchange and promissory notes. The second half of this provision contains an appendix to the ruling of the Directive. Art. 3(g)(iv) (iv) paper-based drafts similar to those referred to in point (iii) and governed by the laws of Member States which are not party to the Geneva Convention of 7 June 1930 providing a uniform law for bills of exchange and promissory notes; 1(10) point 6 lit. (b) ZAG 1(10)(6)(b) ZAG b) Paper based drafts in accordance with the Bills of Exchange Act or a similar paper based draft under the law of another Member State of the European Union or another State Party to the Agreement on the European Economic Area, Although the wording of 1(10)(6)(b)ZAG is different from the one of the Directive it still has the same meaning. Both the German provision and the Directive refer to similar paper based drafts which do not underlie the Geneva convention of 7 June 1930 providing uniform law for bills of exchange and promissory notes. Art. 3(g)(v) (v) paper-based vouchers; 1(10) point 6 lit. (c) ZAG 1(10)(6)(c) ZAG c) paper-based vouchers, The provision of the Directive is transposed literally by 1(10)(6)(c) due to the same wording of both provisions. Art. 3(g)(vi) (vi) paper-based traveller's cheques; or 1(10) point 6 lit. (d) ZAG 1(10)(6)(d) ZAG d) paper-based traveller's cheques; or The provision of the Directive is trans-posed literally by 1(10)(6)(d) due to the same wording of both provisions. 17