47 Amendments of Jean-Paul GAUZÈS related to 2013/0264(COD)
Amendment 142 #
Proposal for a directive
Recital 12
Recital 12
(12) Feedback from the market shows that the payment activities covered by the limited network exception often comprise massive payment volumes and values and offer to consumers hundreds or thousands of different products and services, which does not fit the purpose of the limited network exemption as provided for in Directive 2007/64/EC. That implies greater risks and no legal protection for payment service users, in particular for consumers and clear disadvantages for regulated market actors. A more precise description of a limited network, in line with Directive 2009/110/EC, is necessary in order to limit those risks. A payment instrument should thus be considered to be used within such a limited network if it can be used only either for the purchase of goods and services in a specific store or chain of stores, or for a limited range of goods or services, regardless of the geographical location of the point of sale. Such instruments could include, for instance, the following including their virtual equivalents: store cards, petrol cards, membership cards, public transport cards, parking tickets, ticketing, meal vouchers or vouchers for specific services, which are sometimes subject to a specific tax or labour legal framework designed to promote the use of such instruments to meet the objectives laid down in social legislation. Where such a specific-purpose instrument develops into a general purpose instrument, the exemption from the scope of this Directive should no longer apply. Instruments which can be used for purchases in stores of listed merchants should not be exempted from the scope of this Directive as such instruments are typically designed for a network of service providers which is continuously growing. The exemption should apply in combination with the obligation of potential payment service providers to notify activities falling within the scope of the definition of a limited network.
Amendment 229 #
Proposal for a directive
Article 3 – paragraph 1 – point k
Article 3 – paragraph 1 – point k
(k) services based on specific instruments that are designed to address precise needs that can be used only in a limited way, because they allow the specific instrument holdercan be used only to acquire goods or services only in the premises ofused by the issuer or within a limited network of service providers under direct commercial agreement with a professional issuer or because they can be used onlyunder a commercial agreement with the issuer within a limited network of service providers; or services that can be used only to effect payment transactions in order to acquire a limited range of goods orand services;
Amendment 234 #
Proposal for a directive
Article 3 – paragraph 1 – point l
Article 3 – paragraph 1 – point l
Amendment 240 #
Proposal for a directive
Article 3 – paragraph 1 – point n
Article 3 – paragraph 1 – point n
(n) payment transactions between a parent undertaking and its subsidiary or between subsidiaries of the same parent undertakings belonging to a group within the meaning of Article 4(35), without any intermediary intervention by a payment service provider other than an undertaking belonging to the same group.
Amendment 247 #
Proposal for a directive
Article 4 – paragraph 1 – point 21
Article 4 – paragraph 1 – point 21
21. ‘authentication’ means a procedure which allows the payment service provider to verify the identity of a user of a specific payment instrument, including the use of its personalised security features or the checking of personalised identity documentsfication of a natural person acting on his or her own behalf or on behalf of a legal person, in particular using personalised security features made available to him or her;
Amendment 252 #
Proposal for a directive
Article 4 – paragraph 1 – point 21 a (new)
Article 4 – paragraph 1 – point 21 a (new)
21a. 'authentication of the payment transaction' means a procedure which allows the payment service provider to verify the use of a specific payment instrument, including its personalised security features.
Amendment 256 #
Proposal for a directive
Article 4 – paragraph 1 – point 22
Article 4 – paragraph 1 – point 22
22. ‘strong customer authentication’ means a procedure for the validation of the identification of a natural or legal person based on the use of two or more elements categorised as knowledge, possession and inherence that are independent, in that the breach of one does not compromise the reliability of the others and is designed in such a way as to protect the confidentiality of the authentication data.
Amendment 262 #
Proposal for a directive
Article 4 – paragraph 1 – point 31
Article 4 – paragraph 1 – point 31
31. ‘direct debit’ means a payment service for debiting a payer's payment account, where a payment transactionorder is initiated by the payee on the basis of the payer's consent given to the payee, to the payee's payment service provider or to the payer's own payment service provider;
Amendment 266 #
Proposal for a directive
Article 4 – paragraph 1 – point 32
Article 4 – paragraph 1 – point 32
32. ‘'payment initiation service’' means a payment service enabling access to aprovided by a third party payment accountservice provided by a third partyr, with the aim of initiating payment orders at the request and on behalf of a user of payment service provider, ws, where eithere the payer can beis actively involved in the payment initiation or the third party payment service provider’s software is used, or where payment instruments can be used by the payer or the payee to transmit the payer’s credentialsment order to the account servicing payment service provider;
Amendment 328 #
Proposal for a directive
Article 40
Article 40
Where a payment order is initiated by the third party payment service provider’s own system, it shall in case of fraud or dispute make available to the payer and the account servicing payment service provider evidence that the order has been initiated, in particular the reference of the transactionorders and the authorisation information.
Amendment 330 #
Proposal for a directive
Article 41 – paragraph 1 – introductory part
Article 41 – paragraph 1 – introductory part
Immediately after receipt of the payment order, the payer's payment service provider shall provide or make available to the payer, in the same way as provided for in Article 37(1), the following data if they are available to him in person:
Amendment 332 #
Proposal for a directive
Article 41 – paragraph 1 a (new)
Article 41 – paragraph 1 a (new)
1a. The payer shall immediately take note of the data received from or made available by his payment service provider.
Amendment 333 #
Proposal for a directive
Article 42 – paragraph 1 – introductory part
Article 42 – paragraph 1 – introductory part
Immediately after the execution of the payment transaction, the payee’'s payment service provider shall provide or make available to the payee, in the same way as provided for in Article 37(1), all of the following data if they are available to him in person:
Amendment 334 #
Proposal for a directive
Article 42 – paragraph 1 a (new)
Article 42 – paragraph 1 a (new)
1a. The payee shall immediately take note of the data received from or made available by his payment service provider.
Amendment 335 #
Proposal for a directive
Article 45 – paragraph 1 – point 2 – point c
Article 45 – paragraph 1 – point 2 – point c
(c) the form of and procedure for giving consent to initiate a payment order or execute a payment transaction and withdrawal of such consent in accordance with Articles 57 and 71;
Amendment 343 #
Proposal for a directive
Article 50 – paragraph 3
Article 50 – paragraph 3
3. However, Member States may require payment service providers to provide or make available information on paper once a month free of charge. The payer shall immediately take note of the information received from or made available by his payment service provider.
Amendment 346 #
Proposal for a directive
Article 51 – paragraph 3
Article 51 – paragraph 3
3. However, Member States may require payment service providers to provide or make available information on paper once a month free of charge. The payee shall immediately take note of the information received from or made available by his payment service provider.
Amendment 383 #
Proposal for a directive
Article 57 – paragraph 2 – subparagraph 1
Article 57 – paragraph 2 – subparagraph 1
Consent to execute a payment transaction or a series of payment transactions shall be given in the form agreed between the payer and the payment service provider. Consent may also be given directly or indirectly via the payee. Consent to execute a payment transaction shall also be considered given where the payer authorises a third party payment service provider to initiate the payment transactionorder with the account servicing payment service provider which has authorised the third party payment service provider to do so.
Amendment 396 #
Proposal for a directive
Article 58 – paragraph 2 – point a
Article 58 – paragraph 2 – point a
(a) to ensure that the personalised security features which the third party payment service provider has supplied tof the payment service user are not accessible to other parties;
Amendment 401 #
Proposal for a directive
Article 58 – paragraph 2 – point b
Article 58 – paragraph 2 – point b
(b) to authenticate itself in an unequivocal manner towards the account servicing payment service provider(s) of the account owner. towards the account servicing payment service provider(s), at the request of the payment service user, using the personalised security features which have been supplied to it by the account servicing payment service provider at the request of the payment service user and in accordance with the conditions stipulated between the account servicing payment service provider and the third party payment service provider.
Amendment 408 #
Proposal for a directive
Article 58 – paragraph 2 – point c
Article 58 – paragraph 2 – point c
(c) not to store sensitive payment data or personalised security credentialfeatures of the payment service user.
Amendment 414 #
Proposal for a directive
Article 58 – paragraph 3
Article 58 – paragraph 3
3. Where, for a payment initiation service, the account servicing payment service provider has received the payer’s payment order through the services of a third party payment service provider, it shall immediately notify the latter of the receipt of the payment order as soon as possible and provide information on the availability of sufficientpresence at that time of funds fcorresponding to the specified payment transactionorder.
Amendment 424 #
Proposal for a directive
Article 59 – title
Article 59 – title
Amendment 425 #
Proposal for a directive
Article 59 – paragraph 1
Article 59 – paragraph 1
1. Member States shall ensure that a payer has the right, in order to obtain payment services, to make use of a third party payment instrument issuer to obtain payment card serviceother than the one servicing the payment account to be debited by the payment transaction initiated by the use of these payment instruments.
Amendment 428 #
Proposal for a directive
Article 59 – paragraph 2
Article 59 – paragraph 2
2. IfProvided that the payer has given consent to a third party payment instrument issuer which has provided the payer withsupplied the payment service provider servicing the debited account with evidence of his consent to a payment instrument toissuer obtaining information on the availability of sufficient funds for a specified payment transaction on a specifiedexistence of funds corresponding to the amount of a payment transaction executed by the payment instrument he has issued, on a payment account hselected by the payer, the account servicing payment service provider of the specified payment account shall provide such information to the third partyissuer of the payment instrument issuerused to execute that transaction immediately upon receipt of the payer's payment order initiated by that payment instrument.
Amendment 430 #
Proposal for a directive
Article 59 – paragraph 3
Article 59 – paragraph 3
3. Account servicing payment service providers shall treat payment orders transmitted through the services of a third partythat payment instrument issuer without any discrimination for other than objective reasons in terms of timing and priority in respect of payment orders transmitted directly by the payer personally, on condition that the payer has supplied evidence of his consent to the account servicing payment service provider.
Amendment 446 #
Proposal for a directive
Article 64 – paragraph 1 – subparagraph 1
Article 64 – paragraph 1 – subparagraph 1
Member States shall require that, where a payment service user denies having authorised an executed payment transaction or claims that the payment transaction was not correctly executed, it is for the payment service provider and, if involved and as appropriate, thewhere a third party payment service provider is involved, for the latter to the extent of its involvement, to prove that the payment transaction was authenticated, accurately recorded, entered in the accounts and not affected by a technical breakdown or some other deficiency.
Amendment 448 #
Proposal for a directive
Article 64 – paragraph 1 – subparagraph 2
Article 64 – paragraph 1 – subparagraph 2
If the payment transaction has been initiatedservice user initiates the payment transaction through a third party payment service provider, the burden shall be on the latter to prove that the payment transactionit authenticated and accurately recorded the payment order and that the payment order was not affected by a technical breakdown or other deficiencies linked to the payment service it is in charge of.
Amendment 452 #
Proposal for a directive
Article 64 – paragraph 2
Article 64 – paragraph 2
2. Where a payment service user denies having authorised an executed payment transaction, the use of a payment instrument recorded by the payment service provider, including the third party payment service provider as appropriate, shall in itself not necessarily be sufficient to prove either that the payment transaction was authorised by the payer or that the payer acted fraudulently or failed with intent or gross negligence to fulfil one or more of the obligations under Article 61Does not affect English version. Linguistic correction to French text.
Amendment 453 #
Proposal for a directive
Article 64 – paragraph 2 a (new)
Article 64 – paragraph 2 a (new)
2a. The payment service user shall supply such evidence as is in his possession.
Amendment 454 #
Proposal for a directive
Article 65 – paragraph 1
Article 65 – paragraph 1
1. Member States shall ensure that, without prejudice to Article 63, in the case of an unauthorised payment transaction, the payer's payment service provider refunds to the payer immediately the amount of the unauthorised payment transaction and, where applicable, taking into account the value date initially applied, restores the debited payment account to the state in which it would have been had the unauthorised payment transaction not taken place. This shall also ensure that the credit value date for, subject to the following conditions: a) if the payment service provider can, prima facie, rule out the payer’s having acted fraudulently, it shall refund the amount immediately; b) should there be a strong suspicion of fraud by the payer’s, the payment accservice provider may carry ount shall ban investigation within a time limit appropriate nto later than the date the amount had been debited. the circumstances and refund the amount if the payer is not found liable; c) in other cases, the payer shall be reimbursed immediately and shall agree to his account being debited if the payment service provider’s investigation establishes that he is liable.
Amendment 461 #
Proposal for a directive
Article 65 – paragraph 2
Article 65 – paragraph 2
2. Where a third party payment service provider is involved, the account servicing payment service provider shall refund the amount of the unauthorised payment transaction and, where applicable, restore the debited payment account to the state in which it would have been had the unauthorised payment transaction not taken place. Financial compensation to the account servicing payment service provider by the third party payment service provider may be applicable, except in the case referred to in Article 65(4).
Amendment 463 #
Proposal for a directive
Article 65 – paragraph 3 a (new)
Article 65 – paragraph 3 a (new)
3a. The payment service provider shall refund to the payer the amount of the unauthorised payment transaction and, where appropriate, an amount in respect of any injury suffered by the payer as a result of the unauthorised payment transaction, if the account servicing payment service provider can show that it executed the payment transaction in accordance with instructions given by the third party payment service provider and that the latter authenticated itself in accordance with Article 58(2).
Amendment 464 #
Proposal for a directive
Article 65 – paragraph 3 b (new)
Article 65 – paragraph 3 b (new)
3b. The third party payment service provider shall refund to the payer the amount of the unauthorised transaction and, where appropriate, an amount in respect of any injury suffered by the payer as a result of the transaction, should the transaction have resulted from failure or negligence by the third party payment service provider.
Amendment 496 #
Proposal for a directive
Article 67 – paragraph 1 – subparagraph 4
Article 67 – paragraph 1 – subparagraph 4
For direct debits the payer has an unconditional right for refund within the time limits set in Artframework contract between the payer and his payment servicle 68, except where the payee has already fulfilled the contractual obligations and the services have already been received or the goods have already been consumed by the payer. At the payment service provider’s request, the payee shall bear the burden to prove that theprovider may stipulate that the payer has a right for refund within the time limits set in Article 68, even where the two conditions referred to in the thirdfirst subparagraph are not met.
Amendment 510 #
Proposal for a directive
Article 70 – paragraph 1 a (new)
Article 70 – paragraph 1 a (new)
1a. If the payment service provider notifies the third party payment service provider of the refusal of the payment order initiated by the latter on behalf of the payment service user, the payment service provider shall be deemed to have carried out the notification referred to in Article 70(1). The third party payment service provider shall notify the payment service user of such refusal.
Amendment 511 #
Proposal for a directive
Article 71 – paragraph 2
Article 71 – paragraph 2
2. Where the payment transactionorder is initiated by a third party payment service provider on behalf of the payer or by or through the payee, the payer may not revoke the payment order after giving consent to the third party payment service provider to initiate the payment transactionorder or transmitting the payment order or giving consent to execute the payment transaction to the payee.
Amendment 517 #
Proposal for a directive
Article 76 – paragraph 1
Article 76 – paragraph 1
Where a consumer places cash on a payment account with that payment service provider in the currency of that payment account, the payment service provider shall ensure that the amount is made available and value dated immediately after the point of time of the receipt of the fundsayment service provider has checked the cash in accordance with the applicable European and national legislation. Where the payment service user is not a consumer, the amount shall be made available and value dated at the latest on the next business day after the receipt of the fundscash has been checked by the payment service provider in accordance with the applicable European and national legislation.
Amendment 520 #
Proposal for a directive
Article 80 – paragraph 1 – subparagraph 2
Article 80 – paragraph 1 – subparagraph 2
Where a payment order is initiated by the payer through a third party payment service provider, the third party payment service provider shall, without prejudice to Article 63, Article 79(2) and (3), and Article 83, be liable to the payer for correct execution of the payment transaction, unless it can prove to the payer and, where relevant, to the payer’s account servicing payment service provider that the payment initiationorder was received by the payer’s account servicing payment service provider in accordance with Article 69. In that case, the payer’s account servicing payment service provider shall be liable to the payee for the correct execution of the payment transaction under the conditions set out in the first subparagraph.
Amendment 521 #
Proposal for a directive
Article 80 – paragraph 1 – subparagraph 3
Article 80 – paragraph 1 – subparagraph 3
Where the payer's payment service provider or a third party payment service provider is liable under the first or the second subparagraph, ithe relevant payment service provider shall without undue delay refund to the payer the amount of the non-executed or defective payment transaction, and, where applicable, taking into account the value date initially applied, restore the debited payment account to the state in which it would have been had the defective payment transaction not taken place. TWhe credit value date for the payer’s payment account shall be no lre the third party payment service provider is liable under the second subparagraph, it shall without undue delay refund to the payer the amount of the non-executed or defective payment transaction and, where applicable, compensater than the date the amount had been debitede payer for the consequences of the non-execution or defective execution of the payment transaction.
Amendment 522 #
Proposal for a directive
Article 80 – paragraph 1 – subparagraph 4
Article 80 – paragraph 1 – subparagraph 4
Amendment 523 #
Proposal for a directive
Article 80 – paragraph 1 – subparagraph 5
Article 80 – paragraph 1 – subparagraph 5
Where the payee's payment service provider is liable under the first subparagraph, it shall immediately place the amount of the payment transaction at the payee's disposal and, where applicable, credit the corresponding amount to the payee's payment account. The amount shall be value dated no later than the date the amount should have been value dated in case of correct execution, taking into account the value date which should have been applied.
Amendment 524 #
Proposal for a directive
Article 80 – paragraph 1 – subparagraph 6
Article 80 – paragraph 1 – subparagraph 6
In the case of a non-executed or defectively executed payment transaction where the payment order is initiated by the payer, the payer's payment service provider shall regardless of liability under this paragraph, on request, make immediate efforts to trace the payment transaction and notify the payer of the outcome. This shall be free of charge for the payer.
Amendment 525 #
Proposal for a directive
Article 80 – paragraph 1 a (new)
Article 80 – paragraph 1 a (new)
1a. Where the transaction was defectively executed, the payment service provider and the payment service user may agree that the amount refunded shall correspond to the difference between the precise amount of the payment transaction and the amount executed.
Amendment 526 #
Proposal for a directive
Article 82 – paragraph 1
Article 82 – paragraph 1
1. Where the liability of a payment service provider under Article 80 is attributable to another payment service provider or to an intermediary, that payment service provider or intermediary shall compensate the first payment service provider for any losses incurred or sums paid under Article 80. This shall include compensation where any of the payment service providers fail to use strong customer authentication.
Amendment 556 #
Proposal for a directive
Article 87 – paragraph 1
Article 87 – paragraph 1
1. Member States shall ensure that, from the date of issue referred to in paragraph 3, a payment service provider applies strong custompayment service user authentication when the payer initiates an electronic payment transaction unless distance payment order, except where a risk assessment, carried out in line with EBA guidelines, leads to the distance transaction being made secure by tools other than strong authentication. Those EBA guidelines shallow define the conditions for specific exemptions based on the risk involved in the provided distance payment service. This obligation also applies to a third party payment service provider when initiating a distance payment transaction on behalf of the payer. The account servicing payment service provider shall allow the third party payment service provider to rely on the authentication methods of the former when acting on behalf of the payment service user.
Amendment 560 #
Proposal for a directive
Article 87 – paragraph 2
Article 87 – paragraph 2
2. Where a payment service provider provides services referred to in point 7 of Annex I, it shall authenticate itself towards the account servicing payment service provider of the account owner in accordance with the conditions agreed between the two payment service providers.