It depends on the restrictions on depositing, transferring and withdrawing funds in and from the accounts whether the savings accounts qualify as payment accounts – to which account information or payment initiation service providers (third parties) must be allowed access in accordance with Articles 66 and 67 of PSD2. Savings accounts that allow unrestricted funds transfers to other accounts qualify as payment accounts (see Notes).
In the Netherlands, most savings accounts have one or more fixed contra accounts. At present we are unable to provide a decisive answer on whether savings accounts with a fixed contra account allow unrestricted funds transfer, and hence qualify as payment accounts to which access must be provided. On 4 October 2018, the Court of Justice of the European Union (CJEU) ruled that savings accounts with a fixed contra account were not to be regarded as payment accounts. Seeing that the CJEU issued its ruling under PSD1, it is unclear how it will play out under PSD2, notably whether account information and payment initiation service providers should be allowed access to savings accounts with a fixed contra account.
During the parliamentary consideration of the proposal for implementing PSD2, the Minister announced his intention to put the question of whether savings accounts with a fixed contra account are to be regarded as payment accounts under PSD2 to the Commission. This is important in view of creating a level playing field. Like the Minister, we await the Commission's opinion.
We acknowledge the European legislature's PSD2 objectives, such as promoting competition in the payments market and promoting new payment services. From that perspective – but without wanting to run ahead of the Commission's decision – we can understand that providers of savings accounts with a fixed contra account would wish to allow account information service providers to access the accounts of individual account holders, subject to their consent. Savings accounts providers may do so on the basis of agreements with the third parties in question – provided they are clear about this towards their account holders.
We also wish to point out that competition rules may apply to the question whether access must be provided to third parties. Restricting such access may be in violation of competition rules. This could also apply to savings accounts with a fixed contra account. In the Netherlands, the Authority for Consumers & Markets (ACM) oversees compliance with these rules.
Section 1:1 of the Financial Supervision Act (Wet op het financieel toezicht – Wft) defines a payment account as an account in the name of one or more payment service users that is used to effect payment transactions. Section 1:1 of the Wft subsequently defines the term payment transaction as the depositing, transferring or withdrawing of funds, irrespective of whether there are any underlying obligations between the payer and the payee.
In 2008, the European Commission stated in a Q&A document that savings accounts qualify as payment accounts if the holder can deposit, transfer and withdraw funds without any additional intervention or consent from his payment service provider.
Possible restrictions that prevent the holder from freely depositing and withdrawing funds are:
- The payment service provider applies administrative charges or contractually defined penalties for depositing, transferring or withdrawing funds.
- Depositing funds requires administrative action (e.g. concluding a new agreement)
- Depositing, transferring or withdrawing of funds is limited to e.g. a specific number of times or to specific periods.
Fixed-term deposits for instance do not qualify as payment accounts, according to the Commission, since it is not possible to withdraw funds from such accounts instantly and without restrictions.
In its Q&A document, the European Commission did not address the question of whether savings accounts with one or more fixed contra accounts qualify as payment accounts.
The definition of a payment account has not changed in PSD2. However, new payment services and new types of payment accounts have emerged that warrant extending the definition of payment account. According to the European Commission, the objective of PSD2 must serve as a guiding principle in answering the question of whether an account qualifies as a payment account under PSD2. However, PSD2 itself does not clarify whether savings accounts with a fixed contra account qualify as payment accounts. Pending the court ruling in case C-191/17, the European Commission has not yet explicitly issued an opinion on this question.