Question ID
2024_7199
Legal act
Directive 2015/2366/EU (PSD2)
Topic
Security measures for operational and security risks
Article
10
Paragraph
1
Subparagraph
a
COM Delegated or Implementing Acts/RTS/ITS/GLs/Recommendations
Not applicable
Article/Paragraph
not found
Type of submitter
Credit institution
Subject matter
non-discrimination in implementing PSD2 for safeguarding mechanisms
Question

The PSD2 includes important provisions regarding safeguarding accounts for payment institutions (PIs) and electronic money institutions (EMIs). These accounts shall be additionally protected by the credit institutions providing them so they should be free from seizure and the funds kept at them shall not be considered the property of a PI or an EMI in case of bankruptcy of the safeguarding account holder.

These provisions have been transposed into the law of the Republic of Poland effective in December 2018.

However, according to the transposition, these safeguarding accounts provide these protections (freedom from seizure and not being considered the property of the bankrupt holder) only to the Polish PIs and Polish EMIs (so called “home” PIs and EMIs). 

The law has been so formulated that the safeguarding accounts opened in Poland for the non-Polish (yet EEA-based), properly notified to Poland PIs or EMIs do not enjoy these protections.
 

Is this the proper transposition of the PSD2 provisions of safeguarding accounts or is this the example of the incorrect transposition resulting in the market discrimination of the PIs and EMIs which are not based in Poland?

Background on the question

The Polish implementation of the PSD2 in the local "Payment Services Act" mentions that the safeguarding account should be free from seizure and the funds kept at them shall not be considered the property of a PI or an EMI in case of bankruptcy of the safeguarding account holder only if this is a "home Payment Institution" or "home EMI" which means the PI or EMI registered and licensed in Poland. There is no mention in the Act allowing to protect the safeguarding account opened in Poland for a non-Polish PI or EMI.

Submission date
Rejected publishing date
Rationale for rejection

This question has been rejected because it is out of scope of the Q&A process /tool and does not relate to the legislative acts referred to in Article 1(2) of the EBA Regulation and their associated delegated and implementing acts, guidelines and recommendations. 

The Single Rule Book Q&A tool has been established to provide explanations and non-binding interpretations on questions relating to the practical application or implementation of the provisions of legislative acts referred to in Article 1(2) of the EBA’s founding Regulation, as well as associated delegated and implementing acts, and guidelines and recommendations, adopted under these legislative acts.

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Status
Rejected question