Introduction

The new EU Payment Services Directive (PSD II 2015/2366/EC) came into force on January 13 2016. It is an update and dissolution of the Payment Services Directive (2007/64/EC) and is aimed at ensuring consumer protection, as well as creating a level playing field for all market participants.

All EU member states, including Germany, must incorporate the directive into their respective national laws by January 13 2018.

Germany

Parliament passed the Act on the Implementation of Directive 2015/2366/EC of the European Parliament on June 1 2017. All requirements concerning civil law are mainly implemented within the Civil Code. As the European legislature intends a full harmonisation throughout the European Union, the PSD II is almost incorporated word for word. The Federal Council must still approve the act for it to be promulgated. However, in view of full harmonisation, the Federal Council is unlikely to object.

A large part of the act's provisions refer to the supervisory activities of the competent authority in the EU member states. In Germany, this is the Federal Financial Supervisory Authority.

Consumer protection in aviation industry

Security risks relating to electronic payments have increased, while the role of electronic payments is constantly rising in a community which is heading towards a cashless daily routine. This is due to the complexity of electronic payments and the wide range of payment services which call for increased transparency for consumers.

The act is trying to fulfil this aim by raising the prerequisites for customer authorisation. Because of the German implementation of PSD II, payment service providers must now adjust to new standards.

To achieve a level playing field for all market participants, the act will also have a considerable impact on the aviation industry. Nowadays, online bookings via credit card are airlines' daily business, and surcharging goes hand in hand with online bookings.

In this context, a 'surcharge' describes a fee for payment transactions by the debtor when using a specific payment instrument or method of payment. This fee is generally raised to the amount which is in turn charged to the payment recipient by the payment service provider for the acceptance of cashless currency. This means that consumers often end up paying more for their flights than was designated by the airline, which is a significant lack of transparency.

EU Regulation 2015/751/EC (December 9 2015) initiated the process of reducing these credit and debit card fees to 0.3% and 0.2% respectively of the transaction value per payment transaction. However, there was much confusion regarding the surcharge as it was admitted in some member states and banned in others. The act is bringing light and harmonisation to Germany's surcharging process. According to Article 62(4) of PSD II, member states should ensure that the payment receiver will not request charges for the use of cashless currency. This is implemented by the act in a new version of Section 270a of the Civil Code, which bans surcharging for all particularly popular cashless payment methods in Germany (eg, card payment procedures, the Single Euro Payments Area (SEPA) Core Direct Debit Scheme, the SEPA Business to Business Direct Debit Scheme and SEPA transfers). Therefore, entrepreneurs can no longer shift any fees that they are charged to the debtor.

Airlines will not be entitled to charge consumers for booking flights via credit card online once the act is in force.

Comment

In line with the development of cashless currency being among the most frequently used payment methods, Parliament passed the act to facilitate the use of electronic payment methods.

On the one hand, the act includes higher security standards for electronic payment in order to protect the consumer. On the other hand, it bans any charges towards consumers for the use of credit cards (eg, the online booking of a flight). It thereby ensures the harmonisation for all market participants and has its finger on the pulse.

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For further information on this topic please contact Sophia Iwantscheff at Arnecke Sibeth Rechtsanwaelte by telephone (+49 69 97 98 85 0) or email (siwantscheff@arneckesibeth.com). The Arnecke Sibeth website can be accessed at www.arneckesibeth.com.