What has happened?
On 19 June 2018, the Dutch government published a memorandum of reply (nota naar aanleiding van het verslag) and a memorandum of amendment (nota van wijziging).
What does this mean?
The memorandum of reply includes responses of the Ministry of Finance to the questions raised during the parliamentary discussions on the draft implementing regulations on PSD2.
These questions mainly related to privacy and the protection of personal data:
- The Ministry of Finance clarified that the processing of personal data of payment service providers must meet the requirements of both the GDPR and PSD2. Certain additional data protection provisions as included in PSD2 apply in addition to the data protection provisions of the GDPR.
- Section 94(2) of PSD2 states that payment service providers shall only access, process and retain personal data required for the provision of their payment services with the explicit consent of the payment service user. The Ministry of Finance clarified that as this permission requirement is closely related to the GDPR, it is desirable that the Dutch Data Protection Authority (Autoriteit Persoonsgegevens) (instead of DNB) will monitor this requirement. The memorandum of amendment appoints the Dutch Data Protection Authority as supervising authority in respect of Section 94(2) PSD2 accordingly.
The memorandum of amendment includes certain amendments and additions to the draft implementing regulations on PSD2 in the Netherlands, in which the privacy aspects are better safeguarded.
Furthermore, it is relevant to note that the Dutch government added certain provisions in respect of a payment services agent.
The question whether a payment services provider located in another Member State is authorised to provide payment services in the Netherlands through a payment services agent is subject to DNB's approval.
What happens now?
The (revised) Dutch draft implementing regulations are still pending to be approved by the Dutch Lower Parliament (Tweede Kamer).
After adoption by the Dutch (Lower) Parliament, the draft implementation legislation will be submitted to the Dutch (Higher) Parliament (Eerste Kamer), which is the final step of the implementation procedure.
Developments in Spain, Luxembourg and Poland
The process for the final approval of the draft Bill on the Payment Services Market (implementing PSD2) is also moving forward in Spain.
Last month, the Spanish Council of Ministers finally approved the draft Bill after the public hearing phase.
No changes have been introduced since the last version of the Bill.
The Bill is now expected to go to both chambers of the Spanish Parliament (Congreso and Senado) for its final approval during the second half of this year.
After it has been passed by the Spanish Parliament and published in the Official Gazette, market operators will be granted another three-month transitional period to adapt to the new obligations set out in the final Act.
Luxembourg also took a major step towards the implementation of PSD2, with the State Councl (Conseil d'Etat) releasing its opinion on the PSD2 darft law on 26 June 2018.
It is now up to the parliamentary commission to amend the draft law accordingly.
There has also been progress in Poland.
On 20 June 2018, the Polish Act implementing PSD2 entered into force.
For a comprehensive and interactive look at all European and UK legal provisions relating to PSD2, together with latest news and insight from the Hogan Lovells Team, take a look at our PSD2 Toolkit.