Circular 2/2019 of the Bank of Spain on the requirements for the Fee Information Document and Fee Statement, and payment account comparison websites, amending Circular 5/2012

OFFICIAL STATE GAZETTE No. 81 Thursday, April 4, 2019 Sec. I. Page 34676 I. GENERAL PROVISIONS BANK OF SPAIN 4955 Circular 2/2019, of March 29, of the Bank of Spain, on the requirements of the Fee Information Document and the Fee Statement, and the websites for comparing payment accounts, and which amends Circular 5/2012, of June 27, to credit institutions and payment service providers, on the transparency of banking services and responsibility in the granting of loans.

On November 25, 2017, Royal Decree-Law 19/2017, of November 24, on basic payment accounts, transfer of payment accounts, and comparability of fees, was published, which partially transposes Directive 2014/92/EU of the European Parliament and of the Council, of July 23, 2014, on the comparability of fees associated with payment accounts, the transfer of payment accounts, and access to basic payment accounts.

Both Directive 2014/92/EU and Royal Decree-Law 19/2017 provide, among the measures intended to improve the comparability of fees associated with payment accounts, the determination and publication of a list of standardized terminology for services, the provision of a Fee Information Document and a Fee Statement, and the establishment of websites for comparing the fees applied by payment service providers for services associated with payment accounts. They also contemplate the right of access to basic payment accounts and provide for the establishment of a harmonized procedure for the transfer of payment accounts, the main objective of which is to facilitate and expedite the change of payment service provider.

For its part, Order ECE/228/2019, of February 28, on basic payment accounts, procedure for the transfer of payment accounts, and requirements of comparison websites, was published on March 5, 2019.

Order ECE/228/2019 sets the maximum fee that entities may charge their clients for the provision of services included in basic payment accounts, as well as the procedure for calculating additional fees that entities may apply for use exceeding the limits provided for transfer services and direct debits. Likewise, it configures the detailed procedure that payment service providers must follow when providing the payment account transfer service, and establishes certain additional requirements applicable to operators of websites that allow comparing fees associated with payment accounts.

The approval of this circular is necessary as part of the regulatory development required to complete the process initiated with Royal Decree-Law 19/2017 and Order ECE/228/2019, in order to achieve an improvement in the transparency and comparability of the fees charged by different payment service providers for services associated with payment accounts. This circular also aims to give due compliance to the various mandates entrusted to the Bank of Spain, particularly those relating to comparison websites and certain fees associated with the basic payment account contract.

Chapter I of this circular determines its object and establishes that it defines the precise rules for the complete development of Royal Decree-Law 19/2017 and Order ECE/228/2019. This chapter also regulates the scope of application of the circular and indicates that it will apply, with the scope established in each case, to payment service providers and to operators of websites, other than the Bank of Spain, that allow comparing the fees that payment service providers apply for services associated with payment accounts. cve: BOE-A-2019-4955 Verifiable at http://www.boe.es

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Chapter II establishes the list of standardized terminology for the most representative services associated with payment accounts that the Bank of Spain must publish and keep updated, in accordance with Article 15 of Royal Decree-Law 19/2017. This set of terms incorporates the European standardized terminology collected in Commission Delegated Regulation (EU) 2018/32 of September 28, 2017, supplementing Directive 2014/92/EU as regards regulatory technical standards on standardized Union terminology applicable to the most representative services associated with a payment account. The complete list of the most representative services associated with a payment account, already published on the Bank of Spain's website, is incorporated as Annex 1 to this circular.

Chapter II also develops the requirements of Royal Decree-Law 19/2017 relating to the Fee Information Document and the Fee Statement.

On the one hand, Article 16 of Royal Decree-Law 19/2017 establishes that payment service providers must provide their clients or potential clients, free of charge and with sufficient advance notice, a Fee Information Document, in which the standardized terminology of the list of the most representative services associated with the payment account must appear, together with the fees applicable to each of said services, if the payment service provider offers them. Therefore, payment service providers must provide the corresponding Fee Information Document to all clients or potential clients, prior to the contracting of any of the payment accounts they offer.

For its part, Article 17 of Royal Decree-Law 19/2017 establishes that payment service providers must provide the client, free of charge and at least annually, a Fee Statement that includes the fees charged for all services associated with the client's payment account, during the period to which the document refers, as well as, where applicable, information relating to the interest rates applied and charged.

The standardized format that payment service providers must use when preparing both documents is regulated in Commission Implementing Regulation (EU) 2018/33 of September 28, 2017, establishing implementing technical standards regarding the standardized presentation format of the Fee Statement and its common symbol, and in Commission Implementing Regulation (EU) 2018/34 of September 28, 2017, establishing implementing technical standards regarding the standardized presentation format of the Fee Information Document and its common symbol. These rules include basic instructions, which focus mainly on formal aspects, but do not make special reference to the manner in which payment service providers must incorporate information relating to fees and expenses.

Thus, under the authorizations provided for in Articles 16.4 and 17.4 of Royal Decree-Law 19/2017, Chapter II contains a series of additional guidelines for completion that seek to ensure that payment service providers prepare both documents following harmonized principles that take into account the peculiarities of the national market and the usual typology of accounts. The aim of this measure is to guarantee the comparability of the standardized documents prepared by all payment service providers and to facilitate their understanding by clients. Annex 2 of this circular specifies in greater detail the completion requirements of the Fee Information Document provided for in the body of the circular.

Likewise, under Article 16.4 of Royal Decree-Law 19/2017, Chapter II of this circular also contemplates certain obligations relating to the publication of the Fee Information Document, together with the list of the most representative services associated with a payment account.

Finally, Chapter II configures the way to guarantee the comparability of the Fee Information Document with other pre-contractual and contractual information, as well as with any other communications relating to payment accounts that payment service providers must deliver to their clients. cve: BOE-A-2019-4955 Verifiable at http://www.boe.es

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These provisions would be supported by the general authorizations contained in the final third provision of Order EHA/2899/2011, of October 28, on transparency and client protection of banking services, and in the first final provision of Order EHA/1608/2010, of June 14, on the transparency of the conditions and information requirements applicable to payment services.

Chapter III aims to give effective compliance to the mandate contained in Article 18 of Royal Decree-Law 19/2017. This provision requires the Bank of Spain to establish a website, freely accessible, that allows comparing the fees that payment service providers apply, at least for the services included in the list of the most representative services associated with a payment account. It is intended that this website facilitate users' access to agile and rapid information on the fees that payment service providers charge for services associated with payment accounts.

Therefore, in order for the Bank of Spain to incorporate the necessary information in the comparison website, Chapter III establishes a periodic report of the amounts that payment service providers will charge for fees relating to the services included in the list of the most representative services associated with a payment account.

The configuration of this report is supported by the authorization provided for in the final twelfth provision of Royal Decree-Law 19/2018, of November 23, on payment services and other urgent measures in financial matters, and in the third additional provision of the same legislative text, which establishes the possibility for the Bank of Spain to require payment service providers, in the form and with the periodicity established by it, the information it deems necessary for the exercise of its functions, as the competent authority responsible for monitoring the proper compliance with provisions relating to payment services.

Chapter IV of the circular aims to give effective compliance to the mandate provided for in Article 19.1 of Royal Decree-Law 19/2017, as it fixes the content and format of the responsible declaration that operators other than the Bank of Spain who wish to establish websites that allow comparing fees linked to services associated with payment accounts must present, to the Bank of Spain itself, prior to the start of their activity.

Chapter IV also determines other information that these operators of comparison websites must make available to the Bank of Spain. Article 19 of Royal Decree-Law 19/2017 establishes that the Bank of Spain – which is also assigned the function of verifying compliance and maintenance of the requirements demanded – may require this information from these operators for the proper exercise of its functions. As this is a type of subject representing a novelty within the scope of the Bank of Spain's competencies, it is considered appropriate to detail the information they must make available to it, so that it can give due compliance to the verification function entrusted to it.

Chapter V provides that credit institutions communicate to the Bank of Spain certain information relating to requests for basic payment accounts that they receive. This chapter also determines that payment service providers remit to the Bank of Spain certain information relating to the payment account transfer service they must offer to their clients, in accordance with the regime provided for in Royal Decree-Law 19/2017 and Order ECE/228/2019. This information must be remitted during the month of June of each year and will refer to the period between January 1 and December 31 of the previous year.

These periodic reporting requirements stem from Article 27 of Directive 2014/92/EU, which establishes a periodic report of information to the European Commission, in order for it to assess the effectiveness and efficiency of the principles collected in the directive itself. The request for reporting relating to information on basic payment accounts would be supported by the general authorization contained in the third final provision of Order EHA/2899/2011. The report corresponding to the information relating to the payment account transfer service would be supported by the general authorization contained in the third final provision of Order ECE/228/2019 and in the final twelfth provision of Royal Decree-Law 19/2018, of November 23, in accordance with the third additional provision of the same legislative text. cve: BOE-A-2019-4955 Verifiable at http://www.boe.es

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Chapter V also determines that credit institutions must communicate to the Bank of Spain the average of the fees or expenses they have applied to their clients for the transfer service and for the direct debit service, during the twelve months immediately preceding the corresponding communication.

This request for information originates in Article 4.3 of Order ECE/228/2019, which entrusts the Bank of Spain with the quarterly publication, by entity, of said average fees or expenses. This measure aims to publicize the maximum fees that entities will be able to charge for the use of transfer and direct debit services that exceed the amount indicated in letter e) of Article 4.2 of Order ECE/228/2019.

Finally, the first final provision of this circular amends Circular 5/2012, of June 27, of the Bank of Spain, to credit institutions and payment service providers, on the transparency of banking services and responsibility in the granting of loans, in order to align the information requirements of this regulation with the new provisions of Royal Decree-Law 19/2017. This revision would aim to rationalize the transparency requirements that entities must comply with and eliminate duplicities, particularly those related to the transmission of standardized information to clients. The modifications introduced in Circular 5/2012 stem from the general authorization contained in the third final provision of Order EHA/2899/2011.

This circular adapts to the principles of necessity and efficacy required by Article 129.1 of Law 39/2015, of October 1, on the common administrative procedure of Public Administrations, as it contains the regulatory development required to complete the process of transposition of Directive 2014/92/EU initiated with Royal Decree-Law 19/2017 and with Order ECE/228/2019, and is the most adequate legal instrument to give effective compliance to the mandates entrusted to the Bank of Spain in both normative texts.

It also attends to the principles of proportionality, legal certainty, and efficiency established in the aforementioned law, since it provides the measures and requirements indispensable to comply with the mandates entrusted to the Bank of Spain in Royal Decree-Law 19/2017 and in Order ECE/228/2019. This circular aims to ensure the coherence of the legal framework applicable to payment service providers and contributes to the establishment of an integrated and clear regulatory set, which grants an adequate level of protection to their clients and avoids unnecessary burdens.

The principle of transparency in the elaboration of this circular is verified through prior public consultation with persons and entities potentially affected, and through the public hearing process. Both the consultation and the hearing have been carried out, during the process of elaboration of this circular, through its publication on the Bank of Spain's website, and the recipients of the norm, competent bodies, and interested parties in general have been given the opportunity to manifest their observations.

Consequently, in exercise of the powers granted, the Governing Council of the Bank of Spain, on the proposal of the Executive Commission, and in agreement with the Council of State, has approved this circular, which contains the following norms: cve: BOE-A-2019-4955 Verifiable at http://www.boe.es

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CHAPTER I Object and scope of application

Norm 1. Object.

1. This circular aims to dictate the precise rules for the development and execution of the provisions contained in Royal Decree-Law 19/2017, of November 24, on basic payment accounts, transfer of payment accounts, and comparability of fees (hereinafter, Royal Decree-Law 19/2017), and in Order ECE/228/2019, of February 28, on basic payment accounts, procedure for the transfer of payment accounts, and requirements of comparison websites (hereinafter, Order ECE/228/2019); in particular: a) the establishment of the list of the most representative services associated with a payment account provided for in Article 15 of Royal Decree-Law 19/2017; b) the determination of additional requirements relating to the Fee Information Document and the Fee Statement provided for in Articles 16 and 17 of Royal Decree-Law 19/2017; c) the provision of certain information obligations for the proper operation, by the Bank of Spain, in accordance with Article 18 of Royal Decree-Law 19/2017, of a website for comparing fees applied by payment service providers, for the services mentioned in Article 15 of Royal Decree-Law 19/2017; d) the definition of the terms of the responsible declaration, as well as the determination of certain information necessary for the proper fulfillment of the verification function provided for in the first paragraph of Article 19 of Royal Decree-Law 19/2017; e) the incorporation of certain reporting obligations relating to basic payment accounts, originally provided for in Circular 5/2012, of June 27, of the Bank of Spain, to credit institutions and payment service providers, on the transparency of banking services and responsibility in the granting of loans (hereinafter, Circular 5/2012); f) the determination of certain reporting obligations relating to the payment account transfer service provided for in Royal Decree-Law 19/2017 and in Order ECE/228/2019, in accordance with the third additional provision of Royal Decree-Law 19/2018, of November 23, on payment services and other urgent measures in financial matters (hereinafter, Royal Decree-Law 19/2018); g) the establishment of certain communication obligations of average fees or expenses that credit institutions have applied to their clients for the provision of the transfer service and the direct debit service, in accordance with the third paragraph of Article 4 of Order ECE/228/2019.
2. This circular also amends Circular 5/2012 to align its content with the new provisions introduced by Royal Decree-Law 19/2017 and by Order ECE/228/2019.

Norm 2. Scope of application.

1. Chapters II and III of this circular will apply to payment service providers that offer payment accounts to clients or potential clients.
2. Chapter IV of this circular will apply to operators other than the Bank of Spain who wish to establish a website that allows comparing the fees that payment service providers apply for services associated with payment accounts.
3. Chapter V of this circular will apply to credit institutions that offer payment accounts, regarding the reporting of information relating to basic payment accounts and the communication of average fees or expenses; and to payment service providers, regarding the reporting of information relating to the payment account transfer service.
4. The terms used in this circular shall be understood in accordance with the definitions established in Royal Decree-Law 19/2017.

CHAPTER II Comparability of fees associated with payment accounts

Norm 3. List of the most representative services associated with a payment account. The Annex 1 of this circular contains the list of the most representative services associated with a payment account, which integrates the standardized terms of Commission Delegated Regulation (EU) 2018/32 of September 28, 2017, supplementing Directive 2014/92/EU as regards regulatory technical standards on standardized Union terminology applicable to the most representative services associated with a payment account.

Norm 4. Fee Information Document.

1. Without prejudice to what is established in Royal Decree-Law 19/2018 and in the corresponding regulatory developments, payment service providers will provide the client or potential client, free of charge, and with sufficient advance notice with respect to the date of celebration of a payment account contract, a Fee Information Document, on paper or on another durable medium, in which the standardized terms relating to the services included in the list of the most representative services associated with a payment account must appear, together with the fees applicable to each of said services, in case they offer them.
2. As established in Article 16 of Royal Decree-Law 19/2017, the Fee Information Document must: a) be brief and independent; b) have a clear presentation and structure that allow easy reading; c) use characters of a legible size; d) in case the original has been prepared in color, not lose clarity if printed or photocopied in black and white; e) be drafted in the language agreed by the parties; f) be accurate, and not induce to error; g) express the amounts appearing in it in the currency of the payment account, or in another currency of the Union agreed between the parties; h) bear on the top of the first page the title "Fee Information Document", together with its common symbol, to allow differentiating it from other documents, and i) expressly indicate that it contains the fees applicable to the services offered. cve: BOE-A-2019-4955 Verifiable at http://www.boe.es