评估PSD2授权制度与监管策略（英）.pdf

EBI Working Paper Series Daniel Fo&Antonio Davola Assessing the authorization regime under PSD2 13/02/2024 2024 no.164 Electronic copy available at:https:/ 2016-2023 European Banking Institute e.V.,Frankfurt am Main Germany(“EBI”)The European Banking Institute is a eingetragener Verein(e.V.)under German law(21 of German Civil Code)registered in Frankfurt am Main,Germany.EBI is a non-profit organisation established exclusively and directly for charitable purposes gemeinnutzig within the meaning of Steuerbegunstigte Zwecke in the German tax administration code(Abgabenordnung).All rights reserved.The European Banking Institute The European Banking Institute based in Frankfurt is an international centre for banking studies resulting from the joint venture of Europes preeminent academic institutions which have decided to share and coordinate their commitments and structure their research activities in order to provide the highest quality legal,economic and accounting studies in the field of banking regulation,banking supervision and banking resolution in Europe.The European Banking Institute is structured to promote the dialogue between scholars,regulators,supervisors,industry representatives and advisors in relation to issues concerning the regulation and supervision of financial institutions and financial markets from a legal,economic and any other related viewpoint.The Academic Members of EBI are the following:1.Universiteit van Amsterdam,Amsterdam,The Netherlands 2.Universiteit Antwerpen,Antwerp,Belgium 3.Alma Mater Studiorum Universit di Bologna,Bologna,Italy 4.Academia de Studii Economice din Bucureti(ASE),Bucharest,Romania 5.Universitt Bonn,Bonn,Germany 6.Trinity College,Dublin,Ireland 7.The University of Edinburgh,Edinburgh,Scotland 8.Goethe-Universitt,Frankfurt,Germany 9.Frankfurt School of Finance&Management,Frankfurt,Germany 10.Universiteit Gent,Ghent,Belgium 11.Helsingin yliopisto(University of Helsinki,Helsinki,Finland)12.Universiteit Leiden,Leiden,The Netherlands 13.KU Leuven University,Leuven,Belgium 14.Universidade Catlica Portuguesa,Lisbon,Portugal 15.Universidade de Lisboa,Lisbon,Portugal 16.Univerze v Ljubljani(University of Ljubljana,Ljubljana,Slovenia)17.Queen Mary University of London,London,United Kingdom 18.Universit du Luxembourg,Luxembourg 19.Universidad Carlos III de Madrid,Madrid,Spain 20.Universidad Autnoma Madrid,Madrid,Spain 21.Universidad Complutense de Madrid/CUNEF,Madrid,Spain 22.Johannes Gutenberg University Mainz(JGU),Mainz,Germany 23.University of Malta,Malta 24.Universit Cattolica del Sacro Cuore,Milan,Italy 25.(University of Cyprus,Nicosia,Cyprus)26.Radboud Universiteit,Nijmegen,The Netherlands 27.BI Norwegian Business School,Oslo,Norway 28.Universit Panthon-Sorbonne(Paris 1),Paris,France 29.Universit Panthon-Assas(Paris 2),Paris,France 30.(University of Piraeus,Athens,Greece)31.Stockholms Universitet(University of Stockholm,Stockholm,Sweden)32.Tartu likool(University of Tartu,Tartu,Estonia)33.Universitt Wien,Wien,Austria 34.Uniwersytet Wrocawski(University of Wrocaw,Wrocaw,Poland)35.Universitt Zrich(University of Zrich,Zrich,Switzerland)Supervisory Board of the European Banking Institute:Thomas Gstaedtner,President of the Supervisory Board of the European Banking Institute Enrico Leone,Chancellor of the European Banking Institute EBI Working Paper Series EBI Working Paper Series are a project of the European Banking Institute e.V.EBI Working Paper Series represent a selection of academic researches into the area of banking regulation,banking supervision and banking in general which have been drafted by professors and researchers of EBI Academic Members and selected by the Editorial Board.Editorial Board Wolf-Georg Ringe(chair),Thierry Bonneau,Guido Ferrarini,Christos Hadjiemmanuil,Peter Mlbert,Ignacio Tirado,Eddy Wymeersch Electronic copy available at:https:/ 1 Assessing the authorization regime under PSD2:do(different)supervisory practices prevent the achievement of a level playing field in the EU?DANIEL FO&ANTONIO DAVOLA*Abstract The research aims at empirically investigating whether a correlation can be identified between the presence of payment institutions and e-money institutions authorized in each Member State and the restrictiveness of the supervisory practices of individual NCAs.In particular,the analysis is aimed at ascertaining whether the same risks,same rules,same supervision principle can be deemed to be fulfilled within the European payment services sector and-if not-what countermeasures can be taken to re-establish compliance with it.Building on the data available in the Peer review on authorizations under PSD2 Report published by the EBA,the research inspects the impact of different supervisory policies together with elements such as the overall“FinTech friendliness”of the considered Member States on the amount of authorization granted in different Member States,and tries to identify whether the different variables considered are likely to have an impact in terms of potential supervisory arbitrage,henceforth reducing the effectiveness of the harmonization interventions in the Single Market.This will be functional to identify those areas in which procedural harmonization might be advisable,as well as to pinpoint weaknesses in the level playing field model,as it is currently implemented.Keywords:Payment Services;Authorisation;PSD2;Level playing field;Supervision;National Authorities.Summary:I.Introduction II.Regulatory competition III.Analyzing the impact on supervisory practices on the development of the Member States payment services market IV.Substantive and procedural authorization requirements under PSD2 V.Data,methodology and hypotheses VI.Analysis of the impact of supervisory practices on the number of authorisations granted by each Member States VII.Main findings and concluding remarks.*Daniel Fo is Post-Doctoral Researcher in Economic Law at University of Milan“Luigi Bocconi”;Antonio Davola is Assistant Professor in Economic Law at University of Bari“Aldo Moro”.The Authors contributed equally to the paper;Daniel Fo contributed mostly to Sections 2,3 and 6.Antonio Davola contributed mostly to Section 4 and 5.The authors contributed equally to Sections 1 and 7.Electronic copy available at:https:/ 2 I.Introduction The Payment Services Directive 2(Directive UE 2015/2366 PSD2)provides for a comprehensive regulation of payment services1.The Directive finds its roots in the observation that the technological innovation and the development of the digital environment have a significant impact on the payment sector,allowing for the introduction of new services and for new subjects to enter the market.In particular,as some of the new entities that entered in the digital payment service market have been seen as operating outside of the scope of the previously existing regime(PSD2),a new regulatory framework was needed so to ensure the stability of the payment industry and the level playing field among market players.Currently,PSD2-regulated payment services include traditional services as well as more innovative ones(e.g.account information and payment initiation services,which are expression of the open banking ecosystem);both the categories of services can only be provided by Payment Institutions(PIs)-in addition to banks and e-money institutions(EMIs)3,post office giro institutions,the ECB and national central banks,Member States or their regional or local authorities being the activity reserved.With reference to the obligations arising from the PSD2,the Directive embraces a maximum harmonisation model in order to minimize differences in transposition across Member States.Nonetheless,within the EU countries,not all member States have transposed the Directive in identical terms;this has been influenced first and foremost by national traditions and the regulatory frameworks already in place and-probably to a lesser extent-by the level of maturity of the Fintech ecosystem in each country4,being as of today most payment services digital.In this regard,it should be pointed out that by adopting a broad notion of fintech5,all those financial services that have digital elements or that are more in general provided through digital platforms are 1 For an in-depth analysis of the subject see Bank of Italy,Competition and Payment Services Conference Papers Banca dItalia,Rome,16-17 June 2022 Collection of contributions and writings by Vincenza Profeta,Quaderni di Ricerca Giuridica della Consulenza Legale,Number 93 December 2022;G.Gimigliano M.Bozina Beros(edited by),The payment services directive II.A commentary.Edgar commentaries in financial law,2021;L.Jeng,Open Banking,Oxford University Press,2021;Bank of Italy,Psd2 e Open Banking:nuovi modelli di business e rischi emergenti,November 2021;J.Casanova-M.Savoie-A.Twist,Regulation of payment systems,in J.Casanova-M.Savoie(edited by),Payment Services.Law and Practice,Elgar Financial Law and Practice series,2022.2 Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market,OJ L 319,5.12.2007,p.136(Date of end of validity:12/01/2018).3 According to the Article 4(4)of PSD2 a payment institution is a legal person that has been granted authorisation in accordance with Article 11 to provide and execute payment services throughout the Union;instead,an electronic money institution is defined in defined in Article 2(1)of EMD2 as a legal person that has been granted authorisation under Title II to issue electronic money.4 The hypothesis is suggested,inter alia,in I.Romnova et al.,The Payment Services Directive II and Competitiveness:The Perspective of European Fintech Companies,in European Research Studies Journal Volume XXI,Issue 2,2018,3-22.5 For the purposes of the analysis conducted here,we embrace the broader notion of fintech according to which FinTech refers to the all applications of technology to finance(see D.W.Arner-J.Barberis-R.P.Buckley,The Evolution of FinTech:A New Post-Crisis Paradigm?,2016,available at https:/ Paradigm).However,it should be noted that others adopt a stricter notion of fintech according to which“FinTech is defined as technology-enabled innovation in financial services that could result in new business models,applications,processes or products with an associated material effect Electronic copy available at:https:/ 3 included6.Yet,it is generally acknowledged that,in the future,even those spaces which are not yet definitively conquered by fintech will likely be progressively filled and,thus,that fintech attractiveness will further arise as a substantive driver in assessing the environment within through which payment services can be offered.In such an environment,Member States National Competent Authorities(NCAs)are in charge of verifying that market actors operating under PSD2-regulated services do respect all the requirements that the Directive mandates.Their authorization is,therefore,a substantive enabler to enter and operate in the payment service sector,as well as an essential tool to allow for harmonization across the Single Market.II.Regulatory competition The allocation of competencies at the NCAs level may result in discrepancies in treatment and thus firms can engage in regulatory arbitrage.7 The working hypothesis,as emerging from the data discussed below,is that different Member States do offer indeed different conditions(in relation to supervision,being the regulatory discipline largely homogeneous throughout the European Union)and economic actors base their decisions as to where to seek authorization,considering where supervisory authorities adopt less restrictive approaches.In this regard,it is observed that there a number of service providers decide to establish their registered office(and thus apply for authorisation)in countries where they carry out a minimal part of their activities,even in the absence of a distinctive connection between that country and the promoters of the entrepreneurial venture.In the same vein,it is not uncommon for entities regulated under the PSD2 to offer a reduced number of services in the home country compared to those offered in other Member States.In fact,a sizeable number of firms authorised in specific countries are largely cross-border in nature and generate a significant percentage of their revenues abroad8.This can be observed even more clearly with regard to“fintech related”service providers(e.g.third party providers:AISPs and PISPs9).One of the reasons that might explain it is actually the less stringent approach of the supervisory authorities in these countries.on the provision of financial services”(FSB,Financial Stability Implications from FinTech Supervisory and Regulatory Issues that Merit Authorities Attention,June 27th 2017,7).6 It should however be specified that among payment services,there are some in which the fintech component is more prominent,while others belong to the more traditional services category(e.g.,credit cards,money remittance,etc.)that are by the way in most cases provided using technological tools.7 European Banking Authority,Opinion of the European Banking Authority on its technical advice on the review of Directive(EU)2015/2366 on payment services in the internal market(PSD2),EBA/Op/2022/06,June 23rd 2022,at 6,18,30.8 In this sector,this often happens without even the need to set up branches,as operations are mostly digital and online.9 Account Information Service Providers(AISPs)and Payment Initiation Service Providers(PISPs)are PSD2-regulated entities that offer technology-driven services that are instrumental to the traditional funds transfer services.Electronic copy available at:https:/ Thus,prima facie,there appears to exist an issue of heterogeneity of approaches by NCAs,resulting in competition between jurisdictions within the European single market(which should instead be characterised by homogeneity).Naturally,should this preliminary hypothesis-also highlighted by empirical evidence10-be confirmed,this fragmentation needs to be addressed.This would either prompt a greater harmonisation of rules(including on enforcement,eliminating any residual discretion in operating methods by the NCAs)or a further centralisation of competences,with direct supervision attributed to European authorities,as already occurs in other areas of financial supervision(e.g.the Single Supervisory Mechanism in the banking supervision).The first solution,however,risks being ineffective,as the main discrepancies among the NCAs are primarily not attributable to the application of different rules,but to the valuative approach employed.As long as the supervisory competences are attributed at national level,the EU hardly can intervene on the specificities of national procedural rules and areas of technical discretion.Therefore,the problem lurks in the folds of the system.The second solution-further centralization of supervisory competences at European level-faces resistance fro