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Circular 2/2022, of March 15, of the Bank of Spain, on rules for the submission to the Bank of Spain of payment statistics by payment service providers and payment system operators (BOE of March 18) [ 1 ]

[1] Includes error correction published in the BOE of April 13, 2022

Regulation (EU) 1409/2013 of the European Central Bank, of November 28, 2013, on payment statistics, establishes that the European Central Bank, in collaboration with national central banks, will collect information on payments and payment systems, in order to perform the functions of the European System of Central Banks and to monitor the evolution of payment markets in the Member States.

Various provisions of Regulation (EU) 1409/2013 have been developed through Circular 2/2015, of May 22, of the Bank of Spain, on rules for the submission to this body of payment and payment system statistics collected in Regulation (EU) 1409/2013 of the European Central Bank, of November 28, 2013, on payment statistics by payment service providers and payment system operators. This is the case with what is provided in Article 3, paragraph 2, of Regulation (EU) 1409/2013, according to which national central banks will establish, in accordance with national specificities, the procedures for submitting information that the actual reporting population must follow. Likewise, in accordance with Article 6, paragraph 2, of the same regulation, national central banks must decide when and with what frequency they need to receive data from reporting agents in order to meet the deadline for transmitting information to the European Central Bank.

Subsequent to Circular 2/2015, Regulation (EU) 1409/2013 has been modified by Regulation (EU) 2020/2011 of the European Central Bank, of December 1, 2020, modifying Regulation (EU) 1409/2013 on payment statistics. These modifications have affected aspects such as the statistical information to be presented by the actual reporting population, exemptions from the obligation to submit information, or the deadlines for transmitting information. The references made in this circular to Regulation (EU) 1409/2013 must therefore be understood as referring to the version of this regulation after its modification by Regulation (EU) 2020/2011, unless otherwise expressly established in this circular.

The new regulation introduced in Regulation (EU) 1409/2013 justifies the adoption of a new circular that replaces Circular 2/2015. In accordance with the foregoing, and in compliance with what is provided in Article 3, paragraph 2, Article 4, paragraph 2, and Article 6, paragraph 2, of Regulation (EU) 1409/2013, this circular establishes rules on:

a) The procedure for submitting statistical information to the Bank of Spain by reporting agents.

b) The frequency of the statistical information to be submitted to the Bank of Spain.

c) The power of the Bank of Spain to exempt certain reporting agents from complying with statistical information submission obligations.

Royal Decree-Law 19/2018, of November 23, on payment services and other urgent measures in financial matters, provides in its Article 67, paragraph 4, that payment service providers will provide the Bank of Spain, in the manner and with the frequency determined by it, at least annually, statistical data on fraud related to different payment means. This provision incorporates into our internal legal order what is provided in Article 96, paragraph 6, of Directive 2015/2366 of the European Parliament and of the Council, of November 25, 2015, on payment services in the internal market, which has been developed through the Guidelines of the European Banking Authority on data reporting requirements for fraud, of July 18, 2018 (EBA/GL/2018/05), modified by the Guidelines of January 22, 2020 (EBA/GL/2020/01). For its part, the third additional provision of Royal Decree-Law 19/2018 establishes that payment service providers will communicate to the Bank of Spain, in the form and frequency established by it, the information that it deems necessary for the exercise of its functions as the national competent authority responsible for monitoring the proper compliance with provisions relating to payment services. Likewise, the twelfth final provision of Royal Decree-Law 19/2018 determines that the Bank of Spain may issue the development provisions that are necessary to guarantee the proper application of those provisions of said royal decree-law in which it is expressly recognized as the national authority regarding payment services; these provisions will be understood, in any case, without prejudice to the provisions adopted by the institutions and bodies of the European Union in application of Directive (EU) 2015/2366 of the European Parliament and of the Council, of November 25, 2015.

This circular determines the form and frequency with which payment service providers must provide the Bank of Spain with the statistical data on fraud related to different payment means referred to in Article 67, paragraph 4, of Royal Decree-Law 19/2018, in accordance with what is provided in said article and in the third additional provision of the same royal decree-law. Given that the statistical data on fraud related to different payment means referred to in said Article 67, paragraph 4, substantially coincide with part of the statistical information specified in Regulation (EU) 1409/2013, payment service providers will provide said data to the Bank of Spain by submitting the coincident statistical information under the terms and cases provided for in said regulation and in accordance with the rules established in this circular. However, in cases where a parent company consolidates, in its statistical information on fraudulent payment operations, the operations of its subsidiaries that are payment service providers in accordance with Annex I, Part 1.3, paragraph 3.a), of Regulation (EU) 1409/2013, said parent and subsidiaries will also present, individually, their statistical data on fraud related to different payment means, in compliance with Article 67.4 of Royal Decree-Law 19/2018 and in accordance with the rules established in this circular.

This circular allows satisfying the principles of necessity, effectiveness, proportionality, legal certainty, and efficiency required by paragraph 1 of Article 129 of Law 39/2015, of October 1, on the common administrative procedure of Public Administrations, through the development and specification of the obligations incumbent on the reporting population resulting from Regulation (EU) 1409/2013 and the determination of the form and frequency with which payment service providers must provide the Bank of Spain with the statistical data referred to in Article 67.4 of Royal Decree-Law 19/2018. In this way, a stable, predictable, and clear regulation is offered, in addition to being adjusted to European Union Law, which attends to the aforementioned principles.

This circular also allows compliance with the principles of transparency, through the prior public consultation of potential affected parties, established by Article 133 of Law 39/2015, and of public hearing of interested parties, so that both form part of the processing process of this circular.

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

Rule 1. Scope of application (reporting agents).

This circular will be applicable to the following reporting agents:

a) Payment service providers, as defined in Article 3, paragraph 32, of Royal Decree-Law 19/2018, established in Spain, and

b) Payment system operators, as defined in Article 1, paragraph d), of Regulation (EU) 1409/2013, established in Spain.

Both will form the actual reporting population for the purposes of this circular.

Rule 2. Scope of the obligation to submit information.

1. Reporting agents will submit the statistical information specified in Regulation (EU) 1409/2013 under the terms and cases provided for in said regulation and in accordance with the rules established in this circular.

2. The statistical data on fraud related to different payment means referred to in Article 67.4 of Royal Decree-Law 19/2018 will be understood as provided to the Bank of Spain with the submission by payment service providers of the corresponding statistical information in accordance with the preceding paragraph 1.

Notwithstanding the foregoing, when a parent company consolidates in its statistical information on fraudulent payment operations the operations of its subsidiaries that are payment service providers in accordance with what is provided in Annex I, Part 1.3, paragraph 3.a), of Regulation (EU) 1409/2013, said parent and subsidiaries will also present, individually, their statistical data on fraud related to different payment means, in compliance with what is provided in Article 67.4 of Royal Decree-Law 19/2018 and in accordance with the rules established in this circular.

3. The Bank of Spain may request the information or complementary clarifications it deems necessary, for the purpose of ensuring compliance with the obligations referred to in the preceding paragraphs 1 and 2.

Rule 3. Submission of information to the Bank of Spain.

1. Reporting agents will submit the statistical information specified in Regulation (EU) 1409/2013, by telematic means, to the Payment Systems Department of the Bank of Spain, in accordance with the formats, conditions, and requirements established in the technical development applications of this circular.

2. Payment service providers that are parent and subsidiaries referred to in the second paragraph of Rule 2.2 will submit the statistical data on fraud related to different payment means in compliance with what is provided in Article 67.4 of Royal Decree-Law 19/2018, by telematic means, to the Payment Systems Department of the Bank of Spain, in accordance with the formats, conditions, and requirements established in the technical development applications of this circular.

3. Notwithstanding the foregoing, the Bank of Spain may determine that reporting agents do not have to submit information of which it already has possession through other statistical information collection mechanisms, under the terms and conditions, and with the scope established in the technical applications, which will be published on the Bank of Spain's website.

Rule 4. Frequency and form of information.

1. The statistical information specified in Regulation (EU) 1409/2013 will be transmitted to the Bank of Spain by the reporting agents corresponding in each case, with the following frequency:

a) Quarterly: The statistical information from Table 9 of Annex III of Regulation (EU) 1409/2013 will be transmitted no later than the last business day of the month following the end of the relevant quarter.

b) Semi-annual: The statistical information from Tables 1, 2, 3, 4a, 5a, 6, 7, and 8 of Annex III of Regulation (EU) 1409/2013, for the period from January to June, will be transmitted no later than the fifteenth day of the month of September following the end of the first semester to which the information refers. The statistical information from July to December will be transmitted no later than the fifteenth day of the month of March following the end of the second semester to which the information refers.

c) Annual: The statistical information from Tables 4b and 5b of Annex III of Regulation (EU) 1409/2013 will be transmitted, with a semi-annual breakdown, no later than the fifteenth day of the month of March following the end of the year to which the information refers.

2. Payment service providers that are parent and subsidiaries referred to in the second paragraph of Rule 2.2 will submit to the Bank of Spain the statistical data on fraud related to different payment means in compliance with what is provided in Article 67.4 of Royal Decree-Law 19/2018, with the following frequency and form:

a) Semi-annual: The statistical information from Tables 4b and 5b of Annex III of Regulation (EU) 1409/2013, for the period from January to June, will be transmitted no later than the fifteenth day of the month of September following the end of the first semester to which the information refers. The statistical information from July to December will be transmitted no later than the fifteenth day of the month of March following the end of the second semester to which the information refers.

b) Annual: The statistical information from Tables 4b and 5b of Annex III of Regulation (EU) 1409/2013 will be transmitted, with a semi-annual breakdown, no later than the fifteenth day of the month of March following the end of the year to which the information refers.

Rule 5. Exemptions from information obligations and notifications of inactivity.

1. In accordance with Article 4 of Regulation (EU) 1409/2013, the Bank of Spain may exempt from compliance with the statistical information submission obligations referred to in Article 3, paragraph 1, of Regulation (EU) 1409/2013 natural or legal persons providing payment services benefiting from the exemption regime provided for in Article 14 of Royal Decree-Law 19/2018, provided that the conditions established in Article 4, paragraph 3, of said regulation are met, and in accordance with the procedure established for this purpose in the technical development applications of this circular. Persons to whom an exemption has been granted will submit statistical information in accordance with Tables 4b and 5b of Annex III of Regulation (EU) 1409/2013.

2. In the event that no payment services contained in Annex III of Regulation (EU) 1409/2013 have been provided or no activity that is subject to information in accordance with said Annex III has been developed, the payment service provider's obligation will be limited to notifying said circumstance to the Bank of Spain in the manner established in the technical development applications of this circular.

Rule 6. First submission of quarterly, semi-annual, and annual statistical information.

1. The submission to the Bank of Spain by reporting agents of the quarterly and semi-annual statistical information specified in Regulation (EU) 1409/2013 will begin with the submission of the quarterly data of the first quarter of 2022 no later than the last business day of April 2022, and with the submission of the semi-annual data of the first semester of 2022 no later than the fifteenth day of September 2022.

2. The submission to the Bank of Spain, by payment service providers that are parent and subsidiaries referred to in the second paragraph of Rule 2.2, of the statistical data on fraud related to different payment means in compliance with what is provided in Article 67.4 of Royal Decree-Law 19/2018 will begin with the submission of the semi-annual data of the first semester of 2022 no later than the fifteenth day of September 2022, and with the submission of the annual data of 2022, with a semi-annual breakdown, no later than the fifteenth day of March 2023.

3. The submission to the Bank of Spain by reporting agents to whom an exemption has been granted in accordance with Rule 5 of this circular will begin with the submission of the annual data of 2022, with a semi-annual breakdown, no later than the fifteenth day of March 2023.

Single Transitional Provision. Obligations regarding statistical data up to December 31, 2021.

Obligations regarding statistical data corresponding to the period ending on December 31, 2021, will be governed by Regulation (EU) 1409/2013, in its wording prior to the modification made by Regulation (EU) 2020/2011, and by Circular 2/2015.

Single Repealing Provision. Repeal of Circular 2/2015.

Circular 2/2015, of May 22, of the Bank of Spain, on rules for the submission to the Bank of Spain of payment and payment system statistics collected in Regulation (EU) 1409/2013 of the European Central Bank, of November 28, 2013, on payment statistics by payment service providers and payment system operators, is hereby repealed.

Single Final Provision. Entry into force.

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

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