On 15 July 2021, the European Banking Authority (EBA) issued a consultation paper on draft guidelines that set out its view on the application of the limited network exclusion requirements, which certain payment instruments might benefit from, as laid down in the revised Payment Services Directive (PSD2).

Article 3(k) of the PSD2 specifies that the ‘Directive does not apply to services based on specific payment instruments that can be used only in a limited way, that meet specified conditions.’

Article 37(2) of the PSD2 prescribes that ‘Member States shall require that service providers carrying out either of the activities referred to in points (i) and (ii) of point (k) of Article 3 or carrying out both activities, for which the total value of payment transactions executed over the preceding 12 months exceeds the amount of EUR 1 million, send a notification to competent authorities containing a description of the services offered, specifying under which exclusion referred to in point (k)(i) and (ii) of Article 3 the activity is considered to be carried out.’

Following the publication of the PSD2, the EBA and the European Commission received a number of queries on the interpretation and application of the exclusion under Article 3(k) of the PSD2 and the related notification requirements in Article 37 of the PSD2. Having assessed these queries the Commission is of the view that the implementation and application of the requirements diverges between Member States.

In line with its statutory objective of contributing to the convergence of supervisory practices, the EBA has arrived at the view that it should issue own-initiative guidelines aimed at bringing about convergence on a number of issues related to the application of Article 3(k) and 37(2) of the PSD2.

The deadline for comments on the consultation paper is 15 October 2021.