Order ECE/1263/2019 on Transparency of Conditions and Information Requirements for Payment Services

I. GENERAL PROVISIONS
MINISTRY OF ECONOMY AND ENTERPRISE
18677 Order ECE/1263/2019, of December 26, on the transparency of the conditions and information requirements applicable to payment services, and amending Order ECO/734/2004, of March 11, on the departments and customer service units and the customer ombudsman of financial entities, and Order EHA/2899/2011, of October 28, on transparency and customer protection in banking services.

Chapter I. General Provisions.
Article 1. Purpose.
Article 2. Scope of application.
Article 3. Legal regime.
Article 4. Currency of operations and currency exchange.
Article 5. Information regarding additional costs or reductions for the use of a specific payment instrument.
Article 6. Special provisions regarding information requirements for low-value payment instruments.

Chapter II. Singular Payment Operations.
Article 7. Concept and scope of application.
Article 8. General prior information regarding singular payment operations.
Article 9. Information and conditions regarding singular payment operations.
Article 10. Information for the payer upon receipt of the payment order.
Article 11. Information for the payee upon execution of a singular payment operation.
Article 12. Information required from the payment initiation service provider, after the initiation of a payment order.

Chapter III. Framework Contracts.
Article 13. General prior information before the conclusion of a framework contract.
Article 14. Information and conditions regarding the framework contract.
Article 15. Accessibility of the information and conditions of the framework contract.
Article 16. Prior information regarding payment operations subject to a framework contract.
Article 17. Information for the payer regarding payment operations subject to a framework contract.
Article 18. Information for the payee regarding payment operations subject to a framework contract.
Article 19. Method of transmitting information and conditions regarding the modification of the framework contract conditions.
Article 20. Method of transmitting information and conditions regarding the termination of the framework contract.

Additional Provision First. Regime applicable to certain operations and contracts.
Additional Provision Second. Accounting and auditing.
Additional Provision Third. Obligation to inform consumers of their rights.
Transitory Provision Only. Transitional regime for framework contracts.

OFFICIAL STATE GAZETTE
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Repealing Provision Only. Repeal of legislation.
Final Provision First. Competential Title.
Final Provision Second. Amendment of Order ECO/734/2004, of March 11, on the departments and customer service units and the customer ombudsman of financial entities.
Final Provision Third. Amendment of Order EHA/2899/2011, of October 28, on transparency and customer protection in banking services.
Final Provision Fourth. Incorporation of European Union Law.
Final Provision Fifth. Regulatory authorization.
Final Provision Sixth. Entry into force.

I
The approval of Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC, of 13 November (hereinafter, the Directive), came to reform the regulation in the integrated single market for European retail payments. Said Directive was partially transposed by Royal Decree-Law 19/2018, of 23 November, on payment services and other urgent measures in financial matters, making it necessary to adopt the development rules of said Royal Decree-Law for its complete transposition. Thus, through Royal Decree 736/2019, of 20 December, on the legal regime of payment services and payment entities, and amending Royal Decree 778/2012, of 4 May, on the legal regime of electronic money entities, and Royal Decree 84/2015, of 13 February, developing Law 10/2014, of 26 June, on the ordering, supervision and solvency of credit institutions, key aspects of the Directive have been regulated, such as the legal regime of payment entities. It is now appropriate to regulate the transparency of the conditions and information requirements applicable to payment services. These elements of regulation are fundamental to guaranteeing the confidence of payment service users, a necessary condition for the correct functioning of commercial traffic. Likewise, adequate transparency regarding the conditions applied to payment services fosters competition and, therefore, reduces the costs of commercial transactions derived from the use of these services.

Royal Decree-Law 19/2018, of 23 November, has established the general rules applicable to the conditions and information requirements, and has even regulated in more depth some relevant elements, such as information costs, the burden of proof regarding compliance with information requirements, and the modification and termination of framework contracts. To complete this scheme, its Article 29 referred to the determination by the person holding the Ministry of Economy and Enterprise of the specific information requirements and other conditions applicable to payment operations, whether singular or regulated by a framework contract, the exceptions to the general information regime for low-value payment instruments and electronic money, as well as the minimum content of the framework contract and the information brochure, along with their dissemination modalities. Therefore, the approval of this ministerial order is necessary to regulate these aspects.

II
This ministerial order deals with two main aspects: on the one hand, the information requirements applicable to singular payment operations, and on the other, those applicable to framework contracts and operations associated with said contracts. This encompasses not only the obligations applicable to traditional payment service providers, but also the specific ones for new payment service providers, such as account information service providers, and those providing payment initiation services. This legislation is mandatory for both parties, provider and user, provided that the user is a consumer or – and here lies the novelty compared to the current regime – a micro-enterprise. Other users different from the aforementioned may agree with the payment service provider that this ministerial order does not apply in whole or in part. It also addresses the necessary coordination with certain provisions of Order EHA/2899/2011, of 28 October, on transparency and customer protection in banking services, insofar as both regulate similar situations.

This ministerial order consists of twenty articles, grouped into three chapters, three additional provisions, one transitory provision, one repealing provision, and six final provisions.

Chapter I refers to general provisions. The purpose of this order is the regulation of the transparency of the conditions and information requirements applicable to payment services, in accordance with what is established in Royal Decree-Law 19/2018, of 23 November. Along with the legal regime and scope of application, it collects the regulation of both singular payment operations and those subject to a framework contract, specifying on the one hand, those applicable to the currency of operations and the information requirements applicable to currency exchange services, and on the other, the information regarding additional costs or reductions that payment entities must offer for the use of a specific payment instrument. Finally, the ministerial order defines which payment instruments should be considered low-value, establishing a special regime of information obligations for them. As in Royal Decree-Law 19/2018, of 23 November, a specific regime is established for the authorization and execution of payment orders through low-value instruments; in this ministerial order, a series of specificities in the information obligations applicable to low-value payment instruments are established.

Chapter II collects the information obligations to which payment service providers are subject in singular payment operations. These providers must make certain information available to the user before the latter is bound in any way with the former. In the same way, they must facilitate or make available to both the payer and the payee a series of data, immediately after the receipt of the payment order or the execution of the operation. Likewise, in addition to all this information and conditions, the ministerial order also regulates the peculiarities of the obligations of payment initiation service providers. These must provide additional information to the payer and the payee, immediately after the initiation of the payment order.

Chapter III, on the other hand, collects the information obligations regarding framework contracts, defined in Royal Decree-Law 19/2018, of 23 November. As in the execution of singular payment operations, a minimum information that must be provided to the user necessarily, prior to any contractual binding and with sufficient advance notice, is established. This information, as well as the rest of the contract conditions, will be delivered to the user at any time during the contractual relationship, at their request. Furthermore, in the case of specific operations subject to a framework contract and at the user's request, explicit information must be provided regarding the maximum execution time of said operation and the costs to be paid. Other specific information obligations towards the payer and the payee of payment operations are also established. The chapter closes with the specification of the terms in which the modification and termination of framework contracts by payment service providers must occur.

Additional Provision First provides, in accordance with Article 8 of Law 22/2007, of 11 July, on the distance marketing of financial services intended for consumers, the application of certain articles of this ministerial order as a special rule, instead of the corresponding ones of the cited law, regarding the distance marketing of payment services.

Additional Provision Second authorizes the Bank of Spain to establish and modify the accounting rules and the models to which the financial statements of payment entities and electronic money entities must adhere. For this purpose, prior consultation with the Accounting and Auditing Institute (ICAC) will be mandatory. Additionally, it collects the auditing regime applicable to payment and electronic money entities and the obligation they have to present separately the accounting related to payment services and the other activities they are authorized to provide.

Additional Provision Third collects the obligation to inform consumers of their rights, delivering for this purpose the electronic brochure oriented towards the consumer that, in accordance with Article 106 of the Directive, the European Commission must elaborate.

The Only Transitory Provision collects the transitional regime for framework contracts that were subscribed prior to the entry into force of this ministerial order.

The Only Repealing Provision repeals Order EHA/1608/2010, of 14 June, on the transparency of the conditions and information requirements applicable to payment services, which it replaces.

Final Provision First collects the competential titles, stating that this ministerial order is issued under the competential titles collected in Articles 149.1.6th, 11th, and 13th of the Spanish Constitution.

Final Provision Second modifies Order ECO/734/2004, of 11 March, on the departments and customer service units and the customer ombudsman of financial entities, to include among the entities subject to it credit institutions, payment entities, and entities adhering to what is established in Articles 14 and 15 of Royal Decree-Law 19/2018, of 23 November, electronic money entities, as well as to authorize the Bank of Spain to modulate its requirements according to the size, structure, nature, dimension, and complexity of the activities developed by the entities.

Final Provision Third modifies Article 27.1.d) of Order EHA/2899/2011, of 28 October, to align the definition of the official rate established in said section with the adjustments to the EURIBOR methodology made by its Administrator (European Money Markets Institute). These adjustments respond to the need to adapt the index to the requirements of Regulation (EU) 2016/1011 of the European Parliament and of the Council, of 8 June 2016, on indices used as reference in financial instruments and financial contracts or to measure the profitability of investment funds, and amending Directives 2008/48/EC and 2014/17/EU and Regulation (EU) No 596/2014, and have been carried out without the national authority supervising said index (Autorité des Services et Marchés Financiers belga) considering it necessary to apply what is provided in Article 28 of said Regulation, which means that these adjustments do not affect the continuity of the index. This same provision modifies Article 34 of Order EHA/2899/2011, of 28 October, in order to update the reference to the transparency regulation applicable to payment services.

Final Provision Fourth contains the reference to the incorporation of European Union law, and the fifth authorizes the Bank of Spain to issue the rules and acts necessary for the development and execution of this ministerial order.

Finally, Final Provision Sixth collects the provision for entry into force.

III
This ministerial order responds to the principles of necessity, effectiveness, proportionality, legal certainty, transparency, and efficiency, as required by Law 39/2015, of 1 October, on the Common Administrative Procedure of Public Administrations. With regard to the principles of necessity and effectiveness, this ministerial order is the optimal instrument to carry out the regulatory development of the regulation contained in Royal Decree-Law 19/2018, of 23 November, and Royal Decree 736/2019, of 20 December.

As for the principle of proportionality, this ministerial order maintains the necessary balance between establishing an adequate, agile legal framework that favors the good functioning of payment service providers, on the one hand, and guaranteeing that they maintain adequate levels of transparency and protection of payment service users, on the other.

The principle of legal certainty is reinforced by this ministerial order, insofar as, by virtue of Royal Decree-Law 19/2018, of 23 November, account information service providers and payment initiation service providers have undergone a significant change in their legal regime by being considered payment service providers. In this way, the knowledge and understanding of transparency and user protection rules for payment services is improved by both these entities and the providers of said services, facilitating their interpretation and application compared to the alternative of a modifying text.

In application of the principle of transparency, in the elaboration procedure of this ministerial order, what is established in Law 50/1997, of 27 November, of the Government, and in Law 39/2015, of 1 October, has been taken into account. In this way, it has been submitted to the public consultation procedure provided for in Article 133.1 of Law 39/2015, of 1 October, as well as in Article 26.2 of Law 50/1997, of 27 November, and to the hearing and public information procedure provided for in Article 133.2 of Law 39/2015, of 1 October, thus enabling the active participation of potential recipients. In both phases, numerous observations have been received which have been taken into account in the elaboration of this text. Likewise, numerous reports have been requested, among which those of the Accounting and Auditing Institute (ICAC), the Bank of Spain, and the Council of Consumers and Users stand out. For the foregoing, the principle of transparency is considered fulfilled.

Finally, regarding the principle of efficiency, this ministerial order does not impose unnecessary or accessory administrative burdens, and its development has occurred with the greatest possible speed.

This ministerial order is issued by virtue of the authorizations for regulatory development established by Royal Decree-Law 19/2018, of 23 November, and Royal Decree 736/2019, of 20 December.

By virtue thereof, in agreement with the Council of State, I order:

CHAPTER I
General Provisions

Article 1. Purpose.

1. The purpose of this order is the regulation of the transparency of the contracting conditions and the information requirements exigible in the provision of payment services, in accordance with what is established in Title II of Royal Decree-Law 19/2018, of 23 November, on payment services and other urgent measures in financial matters.
2. The provisions of this ministerial order are understood without prejudice to the provisions derived from European Union Law that establish additional requirements in prior information matters that are applicable.

Article 2. Scope of application.

1. This order shall apply to singular payment operations, framework contracts, and payment operations subject to said framework contracts.

OFFICIAL STATE GAZETTE
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2. When the payment service user is not a consumer, nor a micro-enterprise, according to the definitions of Articles 3.8 and 3.25, respectively, of Royal Decree-Law 19/2018, of 23 November, the parties in the operations and contracts mentioned in the previous section may agree that this order does not apply to them, in whole or in part.
3. What is provided in this order shall not be exigible when a payment service provider provides a specific payment service user only the account information service, except what is established in Articles 9 and 14, insofar as it is applicable to said service.

Article 3. Legal regime.
The transparency of the contracting conditions and the information requirements exigible in the provision of payment services shall be governed by what is provided in Royal Decree-Law 19/2018, of 23 November, in this order, and in Articles 3.2, 3.3, 3.4, 5, 8.1, 8.3, 8.5, and 9 of Order EHA/2899/2011, of 28 October, on transparency and customer protection in banking services. Article 8.4 of Order EHA/2899/2011, of 28 October, shall be applicable to payment services provided by payment service providers in execution of a framework contract.

Article 4. Currency of operations and currency exchange.

1. Payments shall be made in the currency agreed upon by the parties.
2. When, in an ATM, at the point of sale, or by the beneficiary themselves, a currency exchange service is offered prior to the start of the payment operation, the party offering the currency exchange service to the payer must inform them in a breakdown of all costs and commissions, as well as the exchange rate that will be used for the conversion of the payment operation.
   The execution of the currency exchange service under these conditions cannot be carried out without the prior express consent of the payer.
3. Payment service providers that offer the currency exchange services referred to in the previous section shall establish and make public, in the manner established by the Bank of Spain, the exchange rates, commissions, and costs, even minimal ones, applicable to said operations.

Article 5. Information regarding additional costs or reductions for the use of a specific payment instrument.

1. When, for the purposes of using a specific payment instrument, the beneficiary offers a reduction in the price for its use, they shall inform the payer before the payment operation begins.
2. When, for the purposes of using a specific payment instrument, the payment service provider or another party intervening in the operation requires the payment of additional costs, they shall inform the payment service user before the payment operation begins, without prejudice to what is established in Article 4.3 of Order EHA/2899/2011, of 28 October.
3. The payer shall only be obliged to pay the costs indicated in section 2 if their total amount is made known to them before the start of the payment operation.
4. The information referred to in the previous sections shall be provided to the payment service user in the following terms:
   a) The information and conditions shall be communicated to the user in easily accessible and understandable terms, especially for persons with disabilities, in a clear and objective manner, following the rules marked by the principle of universal design, immediately before the payment operation begins. b) The amount of the additional cost or the reduction linked to the use of the payment instrument shall be expressly specified. c) The final complete amount of the payment operation with the additional cost or reduction, and without them, shall be expressly specified.
5. Likewise, those obliged to offer...