Opinion of the European Economic and Social Committee on the Proposal for a Regulation of the European Parliament and of the Council on cross-border payments in the Community

COM(2008) 640 final — 2008/0194 (COD)

2009/C 228/11

On 30 October 2008 the Council decided to consult the European Economic and Social Committee, under Article 95 of the Treaty establishing the European Community, on the

The Section for the Single Market, Production and Consumption, which was responsible for preparing the Committee’s work on the subject, adopted its opinion on 11 March 2009. The rapporteur was Mr BURANI.

At its 452nd plenary session, held on 24 and 25 March 2009 (meeting of 24 March 2009), the European Economic and Social Committee adopted the following opinion by 178 votes to three, with one abstention.

1.   Conclusions and recommendations

2.   Introduction

3.   General comments

4.   Specific comments

4.1   Article 1(3) excludes from the regulation payments made by payment service providers for their own account. Services provided for other payment service providers should also be excluded. The Commission has stated that the provisions should be understood in that way. That being the case, the EESC would suggest that the wording should be clearer and believes that it would be counterproductive were the freedom to provide services directly between professionals not extended to other professionals using professional intermediary services.

4.2   Article 2(1) specifies that the regulation refers exclusively to electronic means of payment: paper-based payment instruments such as cheques and drafts are therefore excluded. The EESC agrees with this decision, but would point out that the differences in commission applied in the various countries for these forms of payment, which are now in decline, are too great to be justified on the grounds simply of cost. In some countries for instance, high charges may appear to be designed not only to cover costs, but also to dissuade people from continuing to use paper-based means of payment in the electronic age: this is a measure that the EESC supports.

4.2.1   Article 2 should include a paragraph to clarify the concept of ‘electronic payment’ referred to in paragraph 1. In view of the cost of mixing techniques and in line with established practice, the new paragraph should state explicitly that electronic payment should not involve paper-based procedures.

4.3   Article 1(2) introduces an innovation: the application of the regulation to cross-border payments up to a level of EUR 50 000 will include all electronic payment instruments, including direct debits. The EESC does have some reservations regarding the latter instrument.

4.3.1   The SEPA system for direct debits is different from the individual national systems and is more complex and sophisticated. Bringing the price of international direct debits into line with national prices could undermine the principle according to which a product or service cannot be sold below cost price. Furthermore, credit institutions often offer their own clients the direct-debit system, used by companies but not individual consumers, at favourable rates for promotional reasons. The conditions for national transactions are calculated to cover costs with low margins but cannot be extended to the more costly international transactions. The EESC would suggest that direct debits should be temporarily excluded from the regulation, with the proviso that they can be introduced if an independent expert report shows that there is no risk of distorting prices and competition.

4.3.2   In any event, in the interests of the basic principle of transparency, the Commission ought to publish its survey, in particular details on national and international costs, and clearly indicate how and on the basis of which sources and using which methodologies the information was collected and processed. In the absence of this information, it is difficult to take a proper stance without it appearing to be preconceived and unbalanced.

4.3.3   In addition, the EESC would draw attention to the fact that the new regulation should enter into force on 1 November 2009. This deadline may prove too short for medium- and long-term economic plans to be drawn up. Legal certainty regarding the Multilateral Interchange Fee (MIF) is an essential prerequisite for the drafting of these plans.

4.4   Article 3 confirms the principle established by the regulation currently in force: charges on cross-border payments must be the same as those that every service provider applies for the corresponding domestic transactions. The rule laid down in 2001 appears to have been satisfactorily observed, but a survey in the field would suggest that there is a serious divergence in many countries between the charges on transfers in euros and those on other currencies. This is discrimination against citizens living outside the euro area.

4.5   Article 5 introduces an important innovation: the obligation to report transfers of up to EUR 50 000 is removed as of 1 January 2010 and of any amount as of 1 January 2012. This requirement, intended as a means of collecting the data necessary for balance of payments accounting, was a source of confusion and was costly. The Member States will be able to collect the information via other systems. The EESC thoroughly approves of this provision.

4.6   Article 6 states that Member States are to appoint the authorities responsible for ensuring the regulation is applied: this preexisting requirement generally seems to be observed. More significant is the rule set out in Article 7, which states that Member States must set up procedures for dealing with complaints and the out-of-court settlement of disputes, providing the public with adequate information. These tasks may be taken on by new ad hoc or existing bodies. The EESC agrees, but only for countries where such structures do not yet exist, warning against the danger of creating new structures with responsibilities that overlap with those of existing structures. It would point out that, in any case, little is known of the workings of these bodies or, more importantly, of the number, nature and outcome of cases dealt with. The lack of complete and transparent information makes it difficult to carry out a serious study of the nature and real number of cases of non-fulfilment.

4.7   Article 10 provides for Member States to impose ‘effective, proportionate and dissuasive’ penalties on those who do not observe the obligations imposed by the regulation, informing the Commission of the provisions made. In this respect as in the previous point, the interested parties must receive adequate information, if for no other reason than to assess the importance given by each Member State to observance of the regulation.

4.8   Article 11 extends to Member States outside the euro area the possibility of applying the regulation to their own currency. This would do away with the inconveniences and discrimination highlighted by the EESC in point 4.6. It would, appear, however that the reaction of the various Member States to this proposal has been somewhat lukewarm when not entirely absent. The EESC would prefer not to comment on this aspect, but calls on the Commission to think carefully about the supposed popularity of certain options.

4.9   The regulation should enter into force on 1 November 2009. The Commission is to present a report on the working of the IBAN and BIC codes by 31 December 2012 and a report on the application of the regulation by 31 December 2015. The EESC has no comment to make here, other than to repeat the requests made in points 4.6 and 4.7 regarding more comprehensive information for the interested parties.