Payment instrument in the regulations on payment services

IN THE PRACTICE OF PROVIDING PAYMENT SERVICES AND SUPERVISION OVER PAYMENT SERVICE PROVIDERS, THE NOTION OF PAYMENT INSTRUMENT POSES SIGNIFICANT INTERPRETATION PROBLEMS. MISAPPLICATION OF THESE PROVISIONS MAY LEAD TO FAR-REACHING CONSEQUENCES, INCLUDING THE INCORRECT ESTABLISHMENT OF A CRIMINAL SANCTION.

The above applies in particular to those payment service providers, like national payment institutions or small payment institutions, that have a right to render payment services not globally (all payment services), but with an indication of the specific payment services they are entitled to provide.

Provisions

Although the literal content of the provisions of both PSD1 and PSD2 is not explicit, the purpose and hierarchical structure of the provisions leave no doubt as to the intentions of the European legislator and the Polish legislator and the correct interpretation of the provisions in this regard.

The term payment instrument is used in the Act and the Directive in two forms:

  • as an independent payment service based on a specific payment instrument that initiates a payment transaction dedicated to that instrument, and
  • as an ordering mechanism for any payment transaction, including any payment transaction other than an instrument transaction.

The instrument is in the form of the independent payment service when the payment service based on the instrument constitutes an end-to-end service, i.e. it requires the use (occurrence) of an instrument on both the payee and payer side for its execution and provides specific rules necessary for the initiation and execution of transactions. A pay card may be one of the examples. To pay with a pay card, the card must be used at least once against the recipient (acceptor). BLIK is another example, but only as a method of payment for the acceptor, that is, where the transaction is initiated by or through the recipients.

Interpretation

The private law provisions of the Payment Services Act refer to the instrument in the sense of the transaction ordering mechanism. For example, the provisions on liability for unauthorized transactions resulting from the use of the payment instrument (Article 46(2) of the Act) cover both the use of the pay card and an e-banking application by an unauthorized person.

The public law provisions on the separate payment service “issuance of a payment instrument” refer to the instrument as the independent payment service when no other payment service is provided than the execution of a transaction with that instrument. As a result, the criminal sanction for the provision of services without authorization or without being recorded in a register refers to the provision of the independent payment service based on the payment instrument and not to the facilitation of the ordering of a credit transfer or other electronic communication transaction. Furthermore, the provisions on schemes, including the public law powers of the National Bank of Poland, apply to the issuance of the instrument as the independent payment mechanism, not to the wire transfer offered by the provider of an application allowing such wire transfer over the Internet.

Service initiating payment transaction

The qualification of the service initiating a payment transaction from a payment account under the regulations on payment instruments will be included in the analysis in this area.

 

Payment instrument in the regulations on payment services

Payment instrument in the regulations on payment services

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