On 19 June 2018, Advocate General Tanchev issued his Opinion in the ING Austria case (case C-191/17) which brings further clarity on the definition of "payment account".
The definition of "payment account" is of crucial importance in relation PSD2 since account information service provides (AISPs) and payment initiation services providers (PISPs) (together referred to as Third Party Providers (TPPs)) are entitled to have access to payments accounts in order to provide their payment initiation services (PIS) and account information services (AIS).
The key issue raised in the matter relates to whether an online direct savings account falls within the definition of payment account, or not, if the holder of that savings account has no possibility to transfer funds to third parties (i.e. the user can only transfer funds to another account opened in his name, with the same payment service provider (PSP) or another PSP).
The conclusion of the Advocate General (AG) is that such an account does not qualify as a payment account.
The AG refers in his Opinion to the Payment Accounts Directive (PAD - Directive 2014/92) and indicates that "the requirements set out in [the PAD] for the notion of a ‘payment account’ should be taken into account for the interpretation of that notion in [PSD1/PSD2]" (paragraph 58), something that is also stated in the PAD: "The definitions contained in this Directive should be aligned as far as possible with those contained in other Union legislative acts, and in particular with those contained in [PSD1/PSD2] and [the SEPA Regulation]" (recital 14 of the PAD).
According to AG Tanchev, under the PAD and PSD1/PSD2, an account needs to meet three conditions in order to qualify as a payment account:
- the ability to place funds in the account,
- to withdraw cash from the account, and
- to execute and receive payment transactions, including credit transfers, to and from a third party. If an account, in particular a savings account like the one at stake in the ING Austria case does meet that third condition, according to AG Tanchev it does not qualify as a payment account under the PSD1/PSD2 (and the PAD).
The Opinion is not legally binding on the Court of Justice of the European Union (CJEU). However, it is followed by the CJEU in the vast majority of cases. We would expect the CJEU to render its judgement in approximately three to six months.
If the CJEU were to follow the AG’s Opinion (which is very likely), TPPs would not have a legal right under PSD2 to access savings accounts that don’t allow the payment service user (PSU) to make payments to third parties or receive payments from third parties - which, to our knowledge, is the case for the vast majority of savings accounts in the EEA. This would be blow to TPPs in terms of PSD2 regulated access to those accounts, in particular for AISPs who, in order to have a credible customer value proposition, need to allow aggregate the data related to savings accounts.
However, in our view, such a judgement would not mean that AISPs would not be entitled to have access to non-payment accounts (and in particular savings accounts that do not qualify as payment accounts), but this has to take place outside the framework of PSD2:
- either on the basis of "screen scraping" or alternatively "reverse engineering", potentially without the account servicing payment service provider (ASPSP) being aware that this access is taking place. ASPSPs that would seek to prevent that access (assuming this is technically possible) would, in our view, take the risk of potentially being found in breach of (EU or national Member States) competition laws. Or
- perhaps on the basis of the dedicated interfaces (generally referred to as "APIs") that most ASPSPs will make available to TPPs under PSD2 as from September 2019, but on a voluntary basis on the part of the ASPSPs; whether for a fee or for free - this is up to commercial agreements between TPPs and ASPSPs.
- In addition, France is currently considering the adoption of a national law granting TPPs access to non-payment accounts on the same basis as payments accounts. If the CJEU sides with the AG’s Opinion, we can expect that other EU Member States may decide to adopt similar national laws to the draft French law.
The Opinion of AG Tanchev is available here.
We will keep you informed of further developments in the case.
If you have any questions, please do not hesitate to get in touch with any member of the Bird & Bird international payments team - see the contacts in the EU below.