Circular 3/2016 of the Bank of Spain on ATM Withdrawal Commission Information

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Circular 3/2016, of March 21, of the Bank of Spain, to ATM-holding entities and card or payment instrument issuing entities, regarding information on commissions for cash withdrawals at ATMs. (BOE of March 29, 2016)

Royal Decree-Law 11/2015, of October 2, to regulate commissions for cash withdrawals at ATMs, modifies Law 16/2009, of November 13, on payment services, to add a second additional provision that implements a new model for charging commissions for cash withdrawals at ATMs using cards or payment instruments. The aforementioned regulation was validated, in accordance with what is provided in Article 86.2 of the Constitution, by agreement of the Congress of Deputies of October 14, 2015.

The new regulation establishes that entities may reach agreements to set the amount of the commission that the card or payment instrument issuing entity must pay to the ATM-holding entity. In the absence of agreements, the commission determined by the ATM holder with respect to the card or payment instrument issuing entity shall be the same throughout the national territory and shall not be discriminatory, without differences arising for equivalent services; furthermore, the commission may not distinguish based on the customers of the issuing entity and may only be reviewed annually.

In order to allow adequate monitoring of the agreements and decisions adopted in application of the new regulation established for this commission, the new second additional provision of Law 16/2009, in its section 6, provides that ATM-holding entities or card or payment instrument issuing entities inform the Bank of Spain of the commission to be paid by the issuing entities to the ATM-holding entities for cash withdrawals.

This circular fulfills the mandates received by the Bank of Spain from the aforementioned legal norm regarding the determination of the form, content, and periodicity of the information obligations cited in the previous paragraph.

Consequently, in exercise of the powers conferred upon it, the Governing Council of the Bank of Spain, upon proposal of the Executive Commission and in agreement with the Council of State, has approved this circular, which contains the following rules:

Rule 1.

Object.

This circular, in development of what is provided in section 6 of the second additional provision of Law 16/2009, of November 13, on payment services, aims to establish the information obligations regarding the commissions that ATM-holding entities receive from card or other payment instrument issuers for cash withdrawal operations carried out by the latter's customers at the former's ATMs located within the national territory.

Rule 2.

Scope of application.

The provisions of this circular shall apply to:

1. The following entities when they are holders of ATMs, in Spanish territory, suitable for use by customers of other card or payment instrument issuing entities in cash withdrawal operations (hereinafter, ATM-holding entities):

a) Credit institutions.

b) Payment institutions.

c) Electronic money institutions.

d) Credit finance establishments authorized to operate as hybrid payment institutions or hybrid electronic money institutions.

e) Branches in Spain of the entities indicated in letters a) to d) above that are authorized in a Member State of the European Union or in a third country.

2. Payment service providers, as defined in Article 2.9 of Law 16/2009, resident in Spain and authorized to issue cards or other payment instruments in Spanish territory, including branches in Spain of credit institutions that are authorized in a Member State of the European Union or in a third country (hereinafter, card or payment instrument issuing entities).

Rule 3.

Definitions.

For the purposes of this circular, the following shall be understood as:

a) "Commission for cash withdrawal": Any remuneration to be paid by the card or payment instrument issuing entity to the ATM-holding entity for cash withdrawals carried out by the customers of the card or payment instrument issuing entity at the ATMs of the ATM-holding entity located within the national territory.

b) "Card or payment instrument": A card or any personalized mechanism or mechanisms that allow its holder to make cash withdrawals at ATMs.

Rule 4.

Information to be sent to the Bank of Spain.

1. ATM-holding entities must send to the Bank of Spain, in the form established in Annex 1 of this circular, the following information:

– The commission for cash withdrawal to be received from card or payment instrument issuing entities with which agreements have been signed and entered into force.

– The commission for cash withdrawal to be received from card or payment instrument issuing entities with which no agreements have been signed.

2. Card or payment instrument issuing entities must send to the Bank of Spain, in the form established in Annex 2 of this circular, information regarding the commission for cash withdrawal to be paid to ATM-holding entities with which they have signed agreements that have entered into force.

3. During the first 10 business days of the month of January of each year, ATM-holding entities and card or payment instrument issuing entities must send the corresponding forms including the information as of December 31 of the previous year.

Additionally, entities must send the corresponding forms, duly updated, whenever a new agreement enters into force, a modification or termination of a current agreement occurs, or the commission established unilaterally by ATM-holding entities in the absence of an agreement is reviewed, within a period of 10 business days counting from the day following the occurrence of the event justifying the submission of the corresponding updated form. Exceptionally, when the entry into force of a new agreement, the termination or modification of a current agreement, or the review of the unilaterally fixed commission occurred in the 10 business days prior to December 31 and provided it remains in force until that day, entities may submit only the forms with the information as of December 31 provided for in the first paragraph of this section.

4. Entities that, after the entry into force of this circular, come to be included in its scope of application must communicate this circumstance to the Bank of Spain and send the corresponding forms within a period of 20 business days counting from the day following that in which the event justifying the submission of this information occurs.

5. The submission to the Bank of Spain of the forms included in the annexes referred to in this rule must be made via electronic transmission, in accordance with the technical specifications communicated for this purpose. The communication regarding inclusion in the scope of application of the circular shall be effected by written notice addressed to the Financial Information and CIR Department of the Bank of Spain.

Transitional Provision.

1. Within a maximum period of 10 business days from the entry into force of this circular, the entities mentioned in section 1 of Rule 2 must communicate to the Bank of Spain whether they are holders of ATMs in the national territory suitable for use in cash withdrawal operations carried out by customers of other entities. Within the same period, the entities mentioned in section 2 of Rule 2 of the circular must communicate to the Bank of Spain whether they issue cards or other payment instruments. Both communications shall be effected by written notice addressed to the Financial Information and CIR Department of the Bank of Spain.

2. Within a maximum period of 20 business days from the entry into force of this circular, entities included in its scope of application must send to the Bank of Spain the corresponding forms, duly completed with the information corresponding to the last calendar day of the month immediately preceding the entry into force of this circular.

Final Provision. Entry into force.

This circular shall enter into force the day following its publication in the "Official State Gazette" (Boletín Oficial del Estado).

ANNEX 1

ANNEX 2

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