TRANSPOSITION OF THE PSD2 IN AUSTRIA
3. Member state options
The PSD2 is based on the concept of full harmonization;
however, the directive contains several provisions that allow national law-makers to deviate from its rules (Art 107 PSD2). The most important member state options that have or have not been exercised in Austria will be summarized in the following.
12 FMA, FMA extends implementation period for strong customer authentication for card payments in e-commerce, https://www.fma.gv.at/en/fma-extends- implementation-period-for-strong-customer-authentication-for-card-payments-in-e-commerce/ (accessed 30 January 2020).
13 EBA, Opinion of the European Banking Authority on the deadline for the migration to SCA for e-commerce card-based payment transactions EBA-Op-2019-11, available at https://eba.europa.eu/eba-publishes-opinion-on-the-deadline-and- process-for-completing-the-migration-to-strong-customer-authentication-sca-for-e-commerce-card-based-payment (accessed 30 January 2020).
14 FMA, FMA extends deadline for application of strong customer authentication for card payments in e-commerce transactions to 31.12.2020, https://www.fma.gv.at/en/fma-extends-deadline-for-application-of-strong- customer-authentication-for-card-payments-in-e-commerce-transactions-to-31-12-2020/ (accessed 30 January 2020).
15 General rules on the operation and the internal structure of the FMA are contained in the Finanzmarktaufsichtsbehördengesetz – FMABG BGBl I 2001/97.
Transposition of the PSD 2 in Austria
3.1.Surcharging
Based on Art 62(5) PSD2, the second sentence of § 56(3) ZaDiG 2018 specifies that payees may not request charges for the use of a specific payment instrument.16 Thus, the provision contains a general prohibition from applying a surcharge in relation to the use of a specific payment instrument. Since the member state option of Art 62(5) PSD2 was fully exercised, a separate transposition of Art 62(4) was not necessary;17 this is because Art 62(4) only refers to charges requested by the payee for the use of those payments instruments to which the regulation on interchange fees or those payment services to which the SEPA-Regulation apply, while Austria, based on the authorization in Art 62(5), decided to prohibit charges for specific payment instruments in general. For this reason, it was, furthermore, not necessary to separately transpose Art 19 Directive 2011/83/EU (Consumer Rights Directive)18 that prohibits traders from charging consumers fees for the “use of a given means of payment” that “exceed the cost borne by the trader for the use of such means”.19 The general prohibition of surcharging had already been implemented prior to the PSD2 in § 27(6) ZaDiG 2009 (based on Art 52(3) PDS 1).20 At the same time – and in compliance with the mandatory provision
16 The original text reads: “Die Erhebung von Entgelten durch den Zahlungsempfänger im Falle der Nutzung eines bestimmten Zahlungsinstrumentes ist unzulässig.“ See on the background of the provision Weilinger/Knauder in Weilinger (ed.), ZaDiG (2017 update) § 27 at 21 et seq.
17 ErläutRV 11 BlgNR 26. GP 16, available at https://www.parlament.gv.at/
PAKT/VHG/XXVI/I/I_00011/fname_679296.pdf (accessed 30 January 2020).
18 Directive 2011/83/EU of the European Parliament and of the Council of 25 October 2011 on consumer rights, amending Council Directive 93/13/EEC and Directive 1999/44/EC of the European Parliament and of the Council and repealing Council Directive 85/577/EEC and Directive 97/7/EC of the European Parliament and of the Council, OJ 2011, L 304, 64-88.
19 ErläutRV 89 BlgNR 25. GP 7, available at https://www.parlament.gv.at/
PAKT/VHG/XXV/I/I_00089/fname_343429.pdf (accessed 30 January 2020).
20 ErläutRV 207 BlgNR 24. GP 34; ErläutRV 11 BlgNR 26. GP 16; see on this provision ECJ 9. 4. 2014, C-616/11.
of Art 62(3) PSD2 – the first sentence of § 56(3) ZaDiG 2018 permits payees to provide for incentives (e.g., discounts) for the use of certain payment instruments and PSPs may not prevent payees from doing so.
3.2. Payer’s liability for unauthorized payment transactions
The last subparagraph of Article 74(1) PSD2 allows member states to reduce the payer’s liability in case of losses resulting from unauthorized payment transactions. This option was exercised in § 68(4) ZaDiG 2018.21 This rule provides that, under certain circumstances, the PSP must bear parts of the losses (“Schadensteilung”) in cases where the payer has neither acted fraudulently nor intentionally failed to fulfill its obligations under Art 69 PSD2 (§ 63 ZaDiG 2018). In order to determine the respective liability of the payer and the PSP, the nature of the personalized security credentials and the specific circumstances under which the payment instrument was lost, stolen or misappropriated must be taken into account. Additionally, § 68(1) ZaDiG 2018 confines the liability of the payer (referred to in the first sentence of Art 74(1) PSD2 – maximum threshold of 50 EUR) to cases where he or she acted with slight negligence.22
3.3. Derogations for low value payment instruments and Electronic money Low value payment instruments receive special treatment compared to other payment instruments. Art 42 and 63 PSD2 provide for derogations from the rules contained in title III and title IV of the directive; for the purpose of both articles, a low value payment instrument is a framework-contract-based payment instrument that “concern only individual
21 ErläutRV 11 BlgNR 26. GP 19.
22 See Koch, Prüfung und Bearbeitung eines Überweisungsauftrags durch den beauftragten Zahlungsdienstleister nach ZaDiG 2018/PSD II, Österreichisches Bankarchiv 2019, 106 (111).
Transposition of the PSD 2 in Austria
payment transactions that do not exceed 30 EUR or that either have a spending limit of 150 EUR or store funds that do not exceed 150 EUR at any time” (Art 42(1), cf. Art 63(1) PSD2).23 Art 42(2) and 63(2) PSD2 permit the member states or their competent authorities to alter these amounts in respect of national payment transactions and Austria has done so in § 35(5) and § 57(2) ZaDiG 2018.24 Accordingly, the relevant amounts for such transactions are set at 60 EUR concerning individual payment transactions, 300 EUR in relation to spending limits and 400 EUR with regard to prepaid instruments. As regards Electronic money (Art 63(3) PSD2), the ZaDiG 2018 introduces a threshold value of 400 EUR (§ 57(3) ZaDiG 2018).
3.4. Alternative dispute resolution
Based on Art 61(2) PSD2, Austria decided to confine the alternative dispute resolution measures set forth in Art 102 PSD2 to payment service users that are consumers.25 Accordingly, the platform referred to in § 98 ZaDiG 2018 is not competent to deal with disputes arising between PSPs and non-consumers. This platform is called the Common Dispute Resolution Body of the Austrian Banking Industry (Gemeinsame Schlichtungsstelle der Österreichischen Kreditwirtschaft) which was founded by the Austrian Chamber of Commerce.26
3.5.Microenterprises and small payment institutions
The ZaDiG 2018 does not exercise the option contained in Art 38(2) and Art 61(3) to extend the protection for consumers under Title III and Title IV to microenterprises (Art 4(36) PSD2).27 In a similar
23 The definitions are practically identical.
24 ErläutRV 11 BlgNR 26. GP 17.
25 ErläutRV 11 BlgNR 26. GP 23 f.
26 https://www.bankenschlichtung.at/ (accessed 30 January 2020).
27 ErläutRV 11 BlgNR 26. GP 13, 16.
fashion, the Austrian legislator refrained from introducing exceptions from the rules on authorization and supervision with regard to “small payment institutions” (Art 32 PSD2). However, § 23a FMABG (that was introduced in 2020) provides for a “regulatory sandbox”. The aim of the provision is to foster innovative business models.