List of Q&As

Evidences / Records to be stored by ASPSP for PIS and AIS requests.

Shall ASPSP keep record of PIS requests received through a PISP and evidences on the authenticity and execution of these payment transactions when SCA is managed by ASPSP ?  Shall ASPSP keep record of the consent of the PSU and also of the AIS requests received through an AISP ? For both evidences is there any specific retention period ?

Legal act: Directive 2015/2366/EU (PSD2)

COM Delegated or Implementing Acts/RTS/ITS/GLs: Not applicable

ID: 2022_6526 | Topic: Strong customer authentication and common and secure communication (incl. access) | Date of submission: 22/07/2022

The question concerns the definition of payment services and in particular the definition of execution of payment transaction.

1. Is an (international) non-profit association, acting as netting centre in the framework of a multilateral netting agreement entered into between its members, that receives and forward funds to and from its members through a bank account opened in its name deemed to carry out payment services falling within the scope of Article 4 (3) of Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC ("PSD2") (e.g. the execution of payment transaction or money remittance)? 2. If the netting center is deemed to carry out payment services, can the netting centre rely on exclusion of Article 3(n) of PSD2, i.e. "payment transactions and related services between a parent undertaking and its subsidiary or between subsidiaries of the same parent undertaking, without any intermediary intervention by a payment service provider other than an undertaking belonging to the same group"?

Legal act: Directive 2015/2366/EU (PSD2)

COM Delegated or Implementing Acts/RTS/ITS/GLs: Not applicable

ID: 2022_6489 | Topic: Authorisation and registration | Date of submission: 21/06/2022

Reading of the term "means of payment"

What are the 'means of payment' in the LNE Guidelines (guidelines 1.6 and 1.7)? Does the term refer to the technological level of a physical device or a digital carrier, which may accommodate several payment instruments, such as plastic card (chip or magnetic stripe), a mobile phone, a wallet, an app, a wearable, a tablet, a PC or even a specific storage location on an external server? Please provide examples of 'other means of payment' that are relevant in practice from the EBA's perspective. How is the definition of payment instrument according to Article 4(14) PSD2 to be read in the context of the LNE Guidelines? Is the interpretation of the adjective “card-based” (in combination with means of payment) in line with the same adjective in combination with payment instruments according to Article 2(20) of Regulation (EU) 2015/751 (“IFR”)?

Legal act: Directive 2015/2366/EU (PSD2)

COM Delegated or Implementing Acts/RTS/ITS/GLs: EBA/GL/2022/02 - Guidelines on the limited network exclusion

ID: 2022_6481 | Topic: Other topics | Date of submission: 14/06/2022

Treatment of credit risk exposure for credit institutions accessing the overnight deposit facility via a national central bank

Should a credit institution accessing the overnight deposit facility via a national central bank (NCB) treat its credit exposure as being to the relevant NCB pursuant to Capital Requirements Regulation (CRR) Article 114(4), or to the European Central Bank (ECB) pursuant to CRR Article 114(3)?

Legal act: Regulation (EU) No 575/2013 (CRR)

COM Delegated or Implementing Acts/RTS/ITS/GLs: Not applicable

ID: 2022_6467 | Topic: Credit risk | Date of submission: 26/05/2022

SCA for token replacement

Is SCA required for the replacement of a tokenized card happening in the background without any ‘action by the payer’ under Article 97(1)(c) PSD2 in the following cases: Expiry of the token and update of the token Replacement of the card, and the new card has a different BIN/Account Range (e.g., for product graduation, such as standard to gold, or simple BIN management) and/or different functionalities Technical and/or configuration changes to the issuer’s BIN configuration (such as migrating from 6 to 8 digit BINs) In all these cases, the existing tokenized credentials have been initially associated with SCA to the user under Article 24(2)(b) RTS, and this is solely a technical replacement of the token.

Legal act: Directive 2015/2366/EU (PSD2)

COM Delegated or Implementing Acts/RTS/ITS/GLs: Regulation (EU) 2018/389 - RTS on strong customer authentication and secure communication

ID: 2022_6464 | Topic: Strong customer authentication and common and secure communication (incl. access) | Date of submission: 24/05/2022

Determination of the total deposit balance of "all the client's deposit accounts"

Assuming a natural person has a bank account at a bank as a private individual. At the same time the individual is a (co)-owner of a legal entity, which qualifies as an SME, and the legal entity has a business account at the same bank. Shall the accounts of both the private individual and the legal entity be aggregated when checking the total deposit balance against the threshold of EUR 500,000? If so, how would the bank determine the appropriate share of the account balance of the legal entity (SME) if the individual is only a co-owner (e.g. 100%, 50%, etc.)?  

Legal act: Regulation (EU) No 575/2013 (CRR)

COM Delegated or Implementing Acts/RTS/ITS/GLs: Delegated Regulation (EU) 2015/61 - DR with regard to liquidity coverage requirement

ID: 2022_6460 | Topic: Liquidity risk | Date of submission: 23/05/2022

Scope of Prudential consolidation

Which is the applicability of Article 22 CRR for successive subsidiaries of a Significant Institution (SI) in the SSM and rest of EU, when the subsidiary in a third country as referred in Article 22 CRR is held by the subsidiary in the SSM or rest of the EU that is the last in the chain of the successive subsidiaries of the SI?

Legal act: Regulation (EU) No 575/2013 (CRR)

COM Delegated or Implementing Acts/RTS/ITS/GLs: Not applicable

ID: 2022_6454 | Topic: Other issues | Date of submission: 17/05/2022

Defining the risk factor for third-country investment firms in K-TCD calculation

Should the third-country investment firms be classified as investment firms or other counterparties for the purposes of defining the risk factor per counterparty type pursuant to Article 26 of the IFR?

Legal act: Regulation (EU) 2019/2033 (IFR)

COM Delegated or Implementing Acts/RTS/ITS/GLs: Not applicable

ID: 2022_6450 | Topic: K-factor requirements | Date of submission: 16/05/2022

Valuation of ASA: financial instruments with a negative fair value

What should be the treatment of the financial instruments with a negative fair value for the purposes of the measurement of client financial instruments safeguarded and administred (ASA)?

Legal act: Regulation (EU) 2019/2033 (IFR)

COM Delegated or Implementing Acts/RTS/ITS/GLs: Not applicable

ID: 2022_6449 | Topic: K-factor requirements | Date of submission: 16/05/2022

Annex VI - Agentes/distributors

Please clarify whether under Directive 2015/2366, in the exchange of notifications between NCAs, Annex VI of the Commission Delegated Regulation (EU) 2017/2055 should be sent concerning each new agent/distributor or only for the first agent/distributor acting on behalf of a payment/e-money institution.

Legal act: Directive 2015/2366/EU (PSD2)

COM Delegated or Implementing Acts/RTS/ITS/GLs: Regulation (EU) 2017/2055 - RTS on passporting under PSD2

ID: 2022_6437 | Topic: Passporting | Date of submission: 03/05/2022

Application of Articles 52 and 54 of Regulation No. 575/2013 (CRR) at consolidated level

How should the consolidated level of AT1 instruments where the issuer is a 100% fully owned subsidiary of an EU institution where the subsidiary is established in a third country and has not been designated in accordance with Article 12 of Directive 2014/59/EU (BRRD) as part of a resolution group the resolution entity of which is established in the Union be treated?

Legal act: Regulation (EU) No 575/2013 (CRR)

COM Delegated or Implementing Acts/RTS/ITS/GLs: Not applicable

ID: 2022_6436 | Topic: Other issues | Date of submission: 29/04/2022

EMI's application of negative interest rates to its clients

Is an electronic money institution (EMI) allowed to apply negative interest rates to its clients (electronic money holders)?

Legal act: Directive 2009/110/EC (EMD)

COM Delegated or Implementing Acts/RTS/ITS/GLs: Not applicable

ID: 2022_6421 | Topic: Not applicable | Date of submission: 12/04/2022

Definition and scope of Asset Under Management

Are assets for which the investment firm provides account aggregation services (outside of the MiFID authorisation scope) to be included in the AUM calculation?  

Legal act: Regulation (EU) 2019/2033 (IFR)

COM Delegated or Implementing Acts/RTS/ITS/GLs: Not applicable

ID: 2022_6418 | Topic: K-factor requirements | Date of submission: 31/03/2022

Deduction of share buy-backs included in dividend policies as foreseeable dividends

If an institution has a distribution policy stating that a percentage of its profits will be paid out in form of share buy-backs, shall those be considered as foreseeable dividends and deducted in the context of inclusion of interim / year-end profits in CET1 capital (assuming that no permission under Article 77 CRR is granted for the share buy-back at the moment of the inclusion of the interim profits which would result in a deduction of amount of the share buy-back)?

Legal act: Regulation (EU) No 575/2013 (CRR)

COM Delegated or Implementing Acts/RTS/ITS/GLs: Regulation (EU) No 241/2014 - RTS for Own Funds requirements for institutions

ID: 2022_6411 | Topic: Own funds | Date of submission: 25/03/2022

EAD value for CVA calculation

Is the the EADiTotal in paragraph 1 gross of or net of incurred CVA. The definition provided by the regulation states that the effect of the collateral should be included but there is no reference as towards the incurred CVA regognised by the Bank as a write-down which under article 273 par.6 is applied in the calculation of the CCR RWA. "EAD total i = the total counterparty credit risk exposure value of counterparty ‘i’ (summed across its netting sets) including the effect of collateral in accordance with the methods set out in Sections 3 to 6 of Title II, Chapter 6 as applicable to the calculation of the own funds requirements for counterparty credit risk for that counterparty. An institution using one of the methods set out in Sections 3 and 4 of Title II, Chapter 6, may use as the fully adjusted exposure value in accordance with Article 223(5)."

Legal act: Regulation (EU) No 575/2013 (CRR)

COM Delegated or Implementing Acts/RTS/ITS/GLs: Not applicable

ID: 2022_6404 | Topic: Market risk | Date of submission: 23/03/2022

Deduction of indirect holdings of own funds instruments in insurance and reinsurance undertakings which are subsidiaries of insurance holding company from own funds

Should indirect holdings of own funds instruments in insurance and reinsurance undertakings which are subsidiaries of insurance holding company be subject to the exemption provided for in Article 15a(2)(a) of Commission delegated regulation No 241/2014?

Legal act: Regulation (EU) No 575/2013 (CRR)

COM Delegated or Implementing Acts/RTS/ITS/GLs: Regulation (EU) No 241/2014 - RTS for Own Funds requirements for institutions

ID: 2022_6398 | Topic: Own funds | Date of submission: 14/03/2022

API functionality

Is it allowed to use a dedicated PSD2 interface by a TPP that identifies itself with an eIDAS certificate for purposes other than those specified in Article 30(1)(b) - (c) of the RTS on strong customer authentication (SCA) and secure communication?

Legal act: Directive 2015/2366/EU (PSD2)

COM Delegated or Implementing Acts/RTS/ITS/GLs: Regulation (EU) 2018/389 - RTS on strong customer authentication and secure communication

ID: 2022_6392 | Topic: Strong customer authentication and common and secure communication (incl. access) | Date of submission: 10/03/2022

Paper-based postal money orders as defined by the Universal Postal Union

1. Should postal transfers as defined by the Universal Postal Union, which are not made in paper form but by electronic means, be excluded from the scope of PSD2?     2. If postal transfers, as defined by the Universal Postal Union, in both electronic and paper format, are inseparable from the postal operator’s accounting system, should also paper-based postal transfers not fall outside the scope of PSD2?     3. Should such transfers be excluded from the scope of PSD2 in either case, or agree that the payment institution is not entitled to credit those funds to the payment service customers’ funds accounts where the money of the payment service users is kept separate?     4. Can a payment institution that is also a postal service provider simultaneously provide both PSD2 regulated services and services related to payments but outside the scope of PSD2?

Legal act: Directive 2015/2366/EU (PSD2)

COM Delegated or Implementing Acts/RTS/ITS/GLs: Not applicable

ID: 2022_6391 | Topic: Other topics | Date of submission: 09/03/2022

Definition of 'past due' for the purpose of the LCR

What is the definition of  'past due' for the purpose of calculation of liquidity inflows under Article 32(1) of Delegated Regulation (EU) 2015/61 in the LCR? Does the regulation allows for grace periods when determining monies due that are past due?

Legal act: Regulation (EU) No 575/2013 (CRR)

COM Delegated or Implementing Acts/RTS/ITS/GLs: Delegated Regulation (EU) 2015/61 - DR with regard to liquidity coverage requirement

ID: 2022_6386 | Topic: Liquidity risk | Date of submission: 25/02/2022

IFR reporting

What would be an example of how firms should read Article 20(1)  IFR?   

Legal act: Regulation (EU) 2019/2033 (IFR)

COM Delegated or Implementing Acts/RTS/ITS/GLs: Not applicable

ID: 2022_6384 | Topic: Supervisory Reporting (IFR) | Date of submission: 22/02/2022