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Implementation of the Payment Services Directive

Sweden has, a bit late for some reason, now implemented the Payment Services Directive 2007/64/EC (the Directive). The Ministry of Finance, which is responsible for the implementation of the Payment Services Directive, presented a draft Government bill (lagrådsremiss) on March 9 2010. On June 22 2010, the parliament decided to adopt the new Payment Services Act (Lag (2010:751) om betaltjänster – the Act). It entered into force on August 1 2010.

The Act is similar to the Payment Services Directive in both framework and content. The legislator's intent is clearly stipulated in the preparatory work; the Act shall deviate as little as possible from the Payment Services Directive and gold-plating shall be avoided as much as possible. In the Act, the member states are given options regarding some of the articles. In the Swedish legislation, certain options have been used.

The most prominent example of the options chosen is Article 52.3 in which a member state can choose to prohibit a payee to charge any fees against the payer when using a payment instrument; including surcharging of credit cards. This choice of the legislator has caused some confusion and created some ambiguities as the preparatory work is somewhat indistinct and unclear in this matter.

In the preparatory works (Proposal 2009/10:220), it is stated not only that Sweden opted for a prohibition, but also that companies within the European Union could not contract out of the prohibition against surcharging. The question was raised by the Swedish Consumer Agency, which had received multiple complaints as consumers were charged when paying by credit card for airline travels. The position of the Swedish Consumers Agency has changed, since the Swedish law entered into force, from arguing that Swedish consumers paying by credit/debit cards cannot be surcharged (with some minor exceptions) to the position that a consumer can be charged in certain situations.

The Swedish Consumers Agency's reasoning is that surcharging for payment by credit/debit card is to be considered as part of a contract of carriage and that the parties (in reality the airline) can chose which law is applicable in accordance with Article 5 of the Rome Convention (Rome I).

It shall be noted that the prohibition for surcharging is in respect of consumers only. Fees, information requirements when performing payment services and the rights and obligations under the Act in relation to the provision and use of payment services, can be excluded from agreements in respect of non-consumers.

A separate act on the implementation of Article 61 in the Directive regarding payers' liability for unauthorised payment transactions (Lag (2010:738) om obehöriga transaktioner med betalningsinstrument) entered into force on August 1 2010 replacing 34§ of the Consumer Credit Act (Konsumentkreditlag (1992:830)). The scope of the act is extended to payment instruments other than debit and credit cards. Where an unauthorised transaction results from use of a personal code, such as a PIN-code, the payer shall bear losses up to an amount of kr1,200 ($180). Where the unauthorised transaction results from gross negligence on the side of the payer, this limit does not apply, although a maximum limit of kr12,000 is set for consumers. In case of fraud or other blameworthy circumstances, a consumer may have to bear the whole cost.

As the Swedish Payment Services Act has only been in force for a short time, some more clarification issues will presumably arise and it will be interesting to follow this new legislation´s development and any case-law that might follow.

Kelly Moroney

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