Order ECE/228/2019, of 28 February, on basic payment accounts, payment account transfer procedures and requirements for comparison websites

OFFICIAL STATE GAZETTE No. 55 Tuesday 5 March 2019 Sec. I. Page 21041 I. GENERAL PROVISIONS MINISTRY OF ECONOMY AND BUSINESS 3113 Order ECE/228/2019, of 28 February, on basic payment accounts, payment account transfer procedures and requirements for comparison websites. Royal Decree-Law 19/2017, of 24 November, on basic payment accounts, transfer of payment accounts and fee comparability (the Royal Decree-Law) transposes into our legal system the content of Directive 2014/92/EU of the European Parliament and of the Council of 23 July 2014 on the comparability of fees related to payment accounts, the transfer of payment accounts and access to payment accounts with basic features. Pursuant to the Royal Decree-Law, Chapter I of this Order establishes that the regulation concerning the services, maximum fees, advertising and information on basic payment accounts applies exclusively to credit institutions. However, it may be advisable to evaluate in the future the use made by consumers of basic payment accounts and the convenience of extending the obligation to provide such services to other types of payment service providers distinct from credit institutions, provided they can provide the payment services required by Directive 2014/92/EU. To this end, this Order provides for the preparation of a report within 12 months. On the other hand, it is established that the regulation on the transfer of payment accounts applies to payment service providers and that the one regarding additional requirements for comparison websites applies to any natural or legal person intending to establish a website that allows comparing the fees applied by payment service providers. The Order addresses various issues regulated in the Royal Decree-Law that require the approval of a ministerial order to achieve full operability of the system designed in the Royal Decree-Law. In particular, the Royal Decree-Law contains four authorizations set out in its Articles 9.2, 10.1, 13.6 and 19.2(h), for the head of the Ministry of Economy and Business to complete the regulation included in the Royal Decree-Law. The first of these issues, the content of which is included in Chapter II of this Order, is the establishment of the maximum fee that institutions may charge for the services included in the basic payment account contract, based on the criteria set out in Article 9.3 of the Royal Decree-Law. The main services are regulated in Article 8.1 of the Royal Decree-Law. Their terminology and definitions must be adapted to what is provided in the list of most representative services associated with a payment account published on the Bank of Spain website. In setting the maximum fee to be charged to the client, public policy is configured with two levels depending on the group to which it applies. A first level is the ordinary fee, established generally for those persons who meet the requirements to have the right to access the opening of a basic payment account, as provided in Article 3 of the Royal Decree-Law, and who do not fall under any of the denial circumstances in Article 4 of that law. The specific amount has been constructed following the criteria fixed in Article 9.3 of the Royal Decree-Law, also taking into account the fee trends that credit institutions have been communicating to the Bank of Spain for similar products, all of this including a sufficient number of transfer or direct debit operations within the European Union to cover the consumer's personal purposes, given the current behavior of consumers and usual practice. Likewise, it has been taken into consideration in the calculation that such fees must be reasonable, in accordance with what Article 9.3 establishes. cve: BOE-A-2019-3113 Verifiable at http://www.boe.es

OFFICIAL STATE GAZETTE No. 55 Tuesday 5 March 2019 Sec. I. Page 21042 Parallel to this, a second level of fee is established in Article 9.4 of the Royal Decree-Law, which is more advantageous than the previous one, for that group of persons in a situation of vulnerability or risk of financial exclusion. Pursuant to this provision, the criteria for determining this group cannot be set out in a ministerial order, but must be established in a rule with the rank of royal decree approved by the Government. This same chapter refers to the measures that institutions must apply to make potential clients aware of basic payment accounts, the services provided and the fees, important elements for facilitating the dissemination of knowledge about these accounts. The third issue addressed by the Order in its Chapter III is the description of the rules and procedures that payment service providers must follow in the process of executing the account transfer service. Such transfer will be free of charge for the client. Chapter IV also includes the additional requirements that payment account comparison websites must meet in order to achieve an adequate level of independence, objectivity and transparency, in accordance with Article 19.2 of the Royal Decree-Law. The text also includes four additional provisions and four final provisions. The first additional provision explicitly states the inclusion of the Order's regulation, with the exception of what is provided in Article 10.4, within the rules of order and discipline, a condition necessary to extend the Bank of Spain's competence in supervision and the adoption of corrective measures regarding them. The second additional provision establishes the compatibility in the simultaneous delivery of the fee statement relating to payment accounts and the annual sending of the rest of the fee and expense information for the entire range of services provided by the institution, something that rationalizes and reduces costs for the institution in the delivery processes without reducing the level of information the client receives. The third additional provision empowers the Bank of Spain, as the national competent authority for the supervision of credit financial institutions, to establish and modify the accounting rules and the models to which the financial statements of credit financial institutions, as well as consolidated financial statements, must be subject. The fourth additional provision foresees the preparation of an evaluation report by the Ministry of Economy and Business within 12 months from the entry into force of the Order. The first and second final provisions establish, respectively, the competent title and the partial incorporation into our legal system of European Union Law. The third final provision allows the Bank of Spain to establish the particularities that may prove necessary for the full application of the regime established in this Order. Finally, the fourth final provision establishes the entry into force. Law 39/2015, of 1 October, on the Common Administrative Procedure of Public Administrations, requires that rules respond to the principles of necessity, effectiveness, proportionality, legal certainty, transparency, and efficiency. Regarding the principle of necessity, this Order is the optimal instrument to carry out the partial transposition in regulatory rank of Directive 2014/92/EU of the European Parliament and of the Council of 23 July 2014 on the comparability of fees related to payment accounts, the transfer of payment accounts and access to payment accounts with basic features. In relation to the principle of efficiency, this Order does not impose any additional administrative burden that is not strictly necessary to comply with the obligations derived from the Royal Decree-Law that it develops. Regarding the principle of proportionality, this Order complies with it by maintaining a balance between the level of protection of banking clients and the need to provide an adequate and agile legal framework. cve: BOE-A-2019-3113 Verifiable at http://www.boe.es

OFFICIAL STATE GAZETTE No. 55 Tuesday 5 March 2019 Sec. I. Page 21043 The principle of legal certainty is reinforced by this Order, given that, respecting the principle of normative hierarchy, it develops the regulation established by the Royal Decree-Law. In application of the principle of transparency, both in the public consultation phase and in the public hearing phase, interested parties had access to both the supporting document and the structured project on the website of the Ministry of Economy and Business. Numerous observations were received in both procedures, which were taken into account in the preparation of this text. This Order is issued in exercise of the authorizations expressly conferred on the head of the Ministry of Economy and Business in Articles 9.2, 10.1, 13.6 and 19.2(h) of Royal Decree-Law 19/2017, of 24 November, and Article 13.2 of Law 5/2015, of 27 April, on the promotion of business financing. In virtue thereof, in accordance with the Council of State, I order: CHAPTER I General Provisions Article 1. Purpose.

1. This Order aims to establish the development provisions of Royal Decree-Law 19/2017, of 24 November, on basic payment accounts, transfer of payment accounts and fee comparability, relating to maximum fees, advertising, information and certain aspects of the regime for basic payment accounts, the procedure applicable to payment account transfers by payment service providers in Spain, and the facilitation of cross-border opening of payment accounts in another Member State of the European Union, as well as the establishment of additional requirements for payment account fee comparison websites.
2. For the purposes of this ministerial Order, in accordance with what is established in Royal Decree-Law 19/2017, of 24 November, a payment account is understood as an account opened in the name of one or several payment service users and used in the execution of payment transactions. The status of a payment account shall not apply to instruments whose purpose is to reflect the accounting of fixed-term deposits or savings accounts; credit card accounts, in which funds are only credited for the exclusive purpose of paying the credit card debt; loans or credits, whether or not secured by real guarantees, or e-money accounts. Article 2. Scope of application.
3. Chapter II shall apply to those credit institutions that have been offering payment accounts in Spain to natural persons acting for a purpose unrelated to their commercial, business, trade or professional activity.
4. Chapter III shall apply to those payment service providers that have been offering payment accounts in Spain to natural persons acting for a purpose unrelated to their commercial, business, trade or professional activity.
5. Chapter IV shall apply to any natural or legal person intending to establish a website that allows comparing the fees applied by payment service providers. cve: BOE-A-2019-3113 Verifiable at http://www.boe.es

OFFICIAL STATE GAZETTE No. 55 Tuesday 5 March 2019 Sec. I. Page 21044 CHAPTER II Services, maximum fees, advertising and information on basic payment accounts Article 3. Use of basic payment account services. The use of basic payment accounts by clients shall follow the principles of good faith and reasonable use, and may not cover: a) the use of payment services that, due to their frequency, nature or characteristics, are manifestly different from those corresponding to a client, or b) their use for professional purposes other than those corresponding to a consumer. Article 4. Maximum fees or expenses.

1. For the provision of all services included in the basic payment account, the institution shall not charge any fee, nor pass on costs or charge expenses to the client, except as provided in this Article.
2. The institution may charge the client a maximum, single and combined monthly fee of no more than €3 for the provision of the following services: a) account opening, use and closure. b) deposit of funds in euros. c) cash withdrawals in euros at the institution's offices or ATMs located in Spain or in other Member States of the European Union. d) payment transactions using a debit or prepaid card, including online payments within the European Union. e) up to 120 annual payment transactions in euros within the European Union consisting of payments made in execution of direct debits and transfers, including payments made in execution of standing orders, at the institution's offices and through the institution's online services when the credit institution has them available.
3. Fees or expenses for transactions that exceed any of the amounts indicated in paragraph 2.e) shall not exceed, on an annual basis, the average fees or expenses applied by the institution for each type of transaction. These average fees or expenses shall be published quarterly by the Bank of Spain.
4. The Bank of Spain may update every 2 years the maximum monthly fee indicated in paragraph 2, based on the evolution of the criteria established in Article 9.3 of Royal Decree-Law 19/2017, of 24 November, throughout that period.
5. The institution may pass on to the client the fees or expenses that the client must pay to a third entity as a result of what is provided in the second additional provision of Royal Decree-Law 19/2018, of 23 November, on payment services and other urgent measures in the financial field. Article 5. Execution of the basic payment account contract.
6. The basic payment account shall be subject to the regime provided in the contract signed between the institution and the client, within the regulatory framework established in Royal Decree-Law 19/2017, of 24 November, this Order, Royal Decree-Law 19/2018, of 23 November, and its development rules, and the rest of the rules that are applicable.
7. The institution shall subject the opening and operation of the basic payment account to the institution's regulations, policies and procedures applicable in accordance with anti-money laundering and counter-terrorist financing regulations. cve: BOE-A-2019-3113 Verifiable at http://www.boe.es

OFFICIAL STATE GAZETTE No. 55 Tuesday 5 March 2019 Sec. I. Page 21045 Article 6. Submission to the financial dispute resolution system. The institution's refusal to open a basic payment account, its unjustified cancellation or any dispute arising in relation to a basic payment account may be the subject of a claim by the client in accordance with what is provided in the first additional provision of Law 7/2017, of 2 November, which incorporates into the Spanish legal system Directive 2013/11/EU of the European Parliament and of the Council of 21 May 2013 on alternative dispute resolution for consumer disputes. Article 7. Use of standardized terminology in payment account services. The terms and definitions used in the general and contractual information regarding the services collected in Article 4.2 of this Order and in Article 8.1 of Royal Decree-Law 19/2017, of 24 November, shall be adapted to the standardized terminology that, in accordance with Article 15 of Royal Decree-Law 19/2017, of 24 November, must be published and kept up to date by the Bank of Spain. Article 8. General information on basic payment account services.

1. Credit institutions offering payment accounts shall approve, execute and evaluate the impact of specific procedures aimed at raising awareness of the basic payment account and its conditions among their clients or potential clients. In particular, they shall make known free of charge in all their establishments open to the public, at least on their notice boards, on their websites, and in the other distribution channels from which banking product information is offered to natural persons acting for a purpose unrelated to their commercial, business, trade or professional activity, the existence and the contracting method of the basic payment account, its minimum services, the conditions and the fees applied to said services. In particular, they must provide, at least, the following information and assistance regarding it, relating to the "basic payment account" product: a) the existence of basic payment accounts, as well as the right held by any potential client who lacks another payment account in Spain where the services indicated in Article 8 of Royal Decree-Law 19/2017, of 24 November, are provided, to obtain, under the conditions established in said Royal Decree-Law and this Order, the services associated with a basic payment account; b) the characteristics and description of each of the services included in the basic payment account. c) that it is not mandatory to acquire other products or services from the institution to have a basic payment account; d) the fees that apply in accordance with Article 4.2; e) the procedure to follow for opening a basic payment account, including, in particular, the information and documentation to be presented; and f) the client's possibility of using the alternative dispute resolution system, in accordance with what is provided in the first additional provision of Law 7/2017, of 2 November.
2. The procedures indicated in the previous paragraph shall include specific measures aimed at raising awareness of the basic payment account among vulnerable consumers, those with mobile residence or who do not have a bank account, and, in particular, the more advantageous conditions regarding fees that are established in development of Article 9.4 of Royal Decree-Law 19/2017, of 24 November. cve: BOE-A-2019-3113 Verifiable at http://www.boe.es

OFFICIAL STATE GAZETTE No. 55 Tuesday 5 March 2019 Sec. I. Page 21046 CHAPTER III Transfer of payment accounts Article 9. Request to initiate the procedure for the provision of the payment account transfer service.

1. The payment account transfer service between different payment service providers operating in Spain, or within the same provider, shall be initiated by the receiving payment service provider at the express request of the client and shall be free of charge for the client and for the receiving payment service provider. In the event that there are two or more account holders, the initiation of the transfer service must be expressly requested by all of them.
2. The payment service provider shall make available to clients a payment account transfer request form that includes, at least, the following general information: a) the functions of the transmitting and receiving payment service providers, respectively, in each phase of the account transfer process, as specified in Articles 10, 11 and 12; b) the maximum timeframe for carrying out the different phases; c) the conditions that the client may establish for the execution of the account transfer; d) any information that will be requested from the client, and e) the alternative dispute resolution procedures provided for in the first additional provision of Law 7/2017, of 2 November. This form shall be available in all offices of the payment service provider and on its website for download, visible in the space designated for individuals, and shall be provided to clients on paper or another durable medium free of charge upon request. Furthermore, payment service providers that offer services through telematic means shall establish the necessary mechanisms so that the payment account transfer procedure can be completed remotely.
3. The request form to be completed by the client shall collect: a) the execution date from which standing transfer orders and direct debits must be charged to the payment account opened or maintained with the receiving payment service provider, which must be at least six business days after the date on which the duly completed form is delivered to the receiving payment service provider by all holders; b) which of the actions provided for in Articles 10 and 11 must be carried out by the receiving and transmitting payment service providers, respectively; c) incoming transfers, standing credit transfer orders and direct debit mandates to which the transfer must apply; d) whether the account subject to transfer should be cancelled or not, as well as the associated payment methods, products and services, if any. Article 10. Actions of the receiving payment service provider.
4. Within two business days from receipt of the payment account transfer service request, the receiving payment service provider shall request the transmitting payment service provider to carry out the following actions, in accordance with the instructions received from the client: a) transmission to the receiving payment service provider, and to the client when expressly requested, of a list recording existing standing transfer orders and available information on direct debit mandates subject to transfer; b) transmission to the receiving payment service provider, and to the client, when expressly requested, of available information on periodic incoming transfers and direct debits issued by the creditor executed against the client's payment account in the preceding 13 months; c) when the transmitting payment service provider does not have an automatic forwarding system for incoming transfers and direct debits to the payment account the client has open with the receiving payment service provider, the cessation of acceptance of direct debits and incoming transfers with effect from the date specified in the authorization; d) cancellation of standing orders with effect from the date specified in the authorization; e) transfer of any remaining credit balance to the payment account that the cve: BOE-A-2019-3113 Verifiable at http://www.boe.es