Changes to #MIF Regulation

Worth noting that the text of the Merchant Interchange Fees Regulation dated 16 January 2015 differs substantively from the version published on 31 October 2014 and considered by MEPs on 17 December. Troubling that no mark-up has been provided. However, I have done the work and updated my previous summary accordingly.

MEPs Agree To Cap Card Fees (#MIFs)

Based on the recent deal amongst MEPs, it looks like the Merchant Interchange Fees (MIF) Regulation will sail through the EU Parliamentary process in early 2015.

Card Scheme MIF Regulation [Updated 20 Jan 2015]

In addition to a new Payment Services Directive (PSD2), the Beurocrats have been busy on a Regulation aimed at payment card transactions - mainly to cap merchant interchange fees, but also to introduce some 'business rules' (MIF Regulation). Unlike PSD2, the MIF regulation will take effect directly in each member state, rather than having to be implemented into national law first. The caps on fees described below apply from 6 months after the regulation enters into force, while the grace period for the business rules is 12 months after the regulation enters into force. The MIF regulation must be reviewed by the Commission four years after entering into force, with any recommendation to amend the fee cap. Underlining and strike-through reflects changes made to the MIF Regulation since October 2014.

Capping fees:

The January 2015 version of the MIF Regulation (updating the October 2014 version) caps the hidden interchange fees that card issuers receive from merchant acquirers for cross-border all debit card transactions at 0.2%. However, for domestic debit card transactions, Member States may apply either a lower cap per transaction and a fixed maximum fee amount, or allow payment service providers (PSPs) to apply a per transaction fee of up to €0.05 in combination with a maximum percentage rate of no more than 0.2%, provided that the interchange fees of the payment card scheme does not exceed the fee is capped at a weighted average of 0.2% of the annual transaction value of the domestic debit card for all transactions within each payment card a scheme, or 0.2% per transaction. But for 5 years, Member States may allow PSPs to apply to domestic debit card transactions a weighted average interchange fee of up to 0.2% of the annual average transaction value of all domestic debit card transactions within each payment card scheme, or a lower weighted average if they wish.

The interchange fee for each credit card transaction is to be capped at 0.3%, although member states can reduce this for domestic transactions.

If domestic payment transactions are not distinguishable as debit or credit card transactions by the payment card scheme, the provisions on debit cards or debit card transactions apply. However, for 1 year after the fee caps apply, Member States may rule that up to 30% of the indistinguishable transactions are considered to be credit card transactions to which the credit card cap shall apply.

At these levels, the authorities believe that retailers should not be allowed to impose additional charges for use of cards that are subject to the caps (such 'surcharging' is controlled by PSD2). However, cards issued to businesses ('commercial cards') and those issued by 'three party payment schemes' (like Amex) are exempt from the caps. That's because businesses are thought to be able to fend for themselves (unlike consumers); and in a three party scheme all fees are charged by the scheme operator, so both the consumer and the merchant know who's paying what to whom. In those cases, then, the merchants can charge for the pain of accepting such cards and it's up to the scheme operators whether to lower their fees. But there are certain limits to the exemption for three party schemes.

In addition, the caps will not apply to 'limited network' payment instruments (like gift cards) which:

• allow the holder to acquire goods or services only within a limited network of service providers under direct commercial agreement with a professional issuer; or
• can only be used to acquire a very limited range of goods or services; or
• instruments valid only in a single Member State provided at the request of an undertaking or public sector entity and regulated by a national or regional public authority for specific social or tax purposes to acquire specific goods or services from suppliers having a commercial agreement with the issuer.

Confusingly, however, there's a similar exemption under PSD2 which carries an additional limitation that “The same instrument cannot be used to make payment transactions to acquire goods and services within more than one limited network or to acquire an unlimited range of goods and services”. So it's conceivable that a scheme may be exempt from the need to be authorised under PSD2, yet have its interchange fees regulated under the MIF Regulation.

Business Rules:

The MIF Regulation has some additional 'business rules':

1. there can't be any territorial licensing restrictions on scheme membership within the EU;
2. card schemes (other than three party schemes) must: ensure their system is technically interoperable with other systems of processing entities within the EU; must separateensure the rule-making entity is independent from entities providing payment processing and other services; eliminate cross-subsidies among scheme services; and not make any one service conditional on taking or providing another;
3. all card schemes must:

• allow 'co-badging', so that a single card can be accepted under multiple schemes;
• enable co-branded instruments on the same card, if possible, but give clear and objective information on the different instruments and their characteristics;
• not discriminate between issuers or acquirers concerning co-badging of payment brands or applications or in terms of reporting, fees or other obligations, routing of transactions or by using mechanisms that limit the choice of application by payer and payee when using a co-badged instrument (though prioritising is okay);
• not charge fees on a blended basis for different card types, unless requested;
• not insist that all their types of cards are honoured if a merchant only wants to accept some of them (and so must enable customers to readily distinguish between the different types of cards offered by the scheme);
• not prevent retailers ‘steering’ customers toward using a preferred payment method, without prejudice to rules under the PSD or the consumer rights directive.

While the MIF Regulation is reasonable advanced, the UK Payment Systems Regulator (PSR) recently warned that if the adoption of the MIF Regulation is delayed, or the implementation of its domestic fee caps is deferred from the caps on cross-border interchange fees, it will consider taking action in advance of the Regulation; and that it may still consider whether it is appropriate to take any further action even if the MIF Regulation is adopted.

In other words, official trust in card schemes is low.

Payment Systems Regulator Publishes Regulatory Proposals

It's all go in the payments world at the moment. The EU is trying to hammer out a new payment services directive (PSD2), while the UK's new Payment Systems Regulator (PSR) is setting up shop ahead of its official launch in April 2015.

The PSR has just announced the results of a joint market study with Ofcom on the level of innovation in the payments sector, which casts doubt on certain aspects of PSD2.

In addition, the PSR has published its response to an earlier consultation on its proposed rules for regulating payment systems. The term "payment system" is defined very broadly as:

“a system which is operated by one or more persons in the course of business for the purpose of enabling persons to make transfers of funds, and includes a system which is designed to facilitate the transfer of funds using another payment system.”

The intention behind the rules are to:

• set a new approach to industry strategy development - a new 'Payments Strategy Forum';
• change the governance and control of payment systems to ensure greater transparency and representation of users in decision making, avoidance of conflicts of interest, publication of board minutes and compliance reports to the PSR;
• make it easier for participants of all sizes to access payment systems – directly or indirectly;
• action on interchange if EC regulation is delayed; and
• require system operators to discuss significant developments with the PSR in advance and on an on-going basis.

If the rules still aren't to your liking, you have until 12 January to kick up a fuss.

FCA Wants Your Input On Payment Systems Regulation

Are bad payment systems causing you needless expense, anxiety, sleepless nights, depression or hair loss? Save on therapy bills by contacting the Financial Conduct Authority - free of charge!

That's right. From now until 15 April you can unburden yourself to a professional just by answering the following questions:*

"Question 1: Do you have any views on which payment systems should be considered for designation? If this includes parties other than the UK payment systems listed..., please explain why.

Question 2: Where do you believe competition is effective or ineffective within UK payment systems? 

Question 3: At which level(s) is there potential for competition to drive benefits for service-users, in terms of costs, quality or innovation?

Question 4: What are the main factors impeding more effective competition at each level?

Question 5: What functions do you think need to be performed collaboratively in the industry? How best can this be achieved?

Question 6: Do you think the current ownership structure creates problems? If so, please explain your concerns with the current structure.

Question 7: How might the regulator address any issues with the current ownership structure? Please explain how any remedy, including any alternate model, might address any or all of the issues you have identified and also highlight any potential concerns associated with such alternate ownership.

Question 8: Do you have any concerns about the current governance of UK payment systems?

Question 9: What do you believe is the appropriate governance structure for UK payment systems?

Question 10: How do you access UK payment systems? Please provide details (e.g. direct or indirect, the conditions, fees and requirements for access etc.) for each payment system you have access to and any concerns you may have with your current arrangements. If you do not currently have access to UK payment systems, please provide details on how you participate within the UK payment industry, and detail any concerns or constraints you may have in this regard.

Question 11: For the access you described above (in question 10), are the access terms and conditions (including fees) fair and reasonable? If not, please provide details.

Question 12: Does the access arrangement you currently have limit your ability to compete or impact on the service - users’ experience in any way?

Question 13: If you access payment systems indirectly through a sponsoring agreement with a direct member bank, do you have sufficient choice in sponsoring banks? Would you prefer to access payment systems directly? What do you see as the benefits and risks of doing so?

Question 14: Do you act as a sponsoring bank, providing indirect access to any payment system participant in the UK (please provide details for each payment system you provide access to)? If yes: To whom do you provide indirect access? What are the major risks and costs associated with providing such indirect access? On what basis do you choose whether to provide indirect access? Are there any barriers to becoming a sponsoring bank?

Question 15: What changes to access rules and conditions would you like to see? Are there any alternative routes to gain access to payment systems that you believe should be developed (e.g. a second tier membership to payment system operators)?

Question 16: Do you have any other comments regarding access?

Question 17: What improvements or changes do you believe are required in the provision and use of infrastructure in the UK? We would also be interested in your views on the cost of such changes, for you or for the industry as a whole. What considerations, if any, need to be considered regarding the impact of any changes or improvements on the resilience and re liability of payments systems?

Question 18: What changes, if any, are needed regarding messaging standards in the UK? For example, would the adoption of ISO20022 standards alleviate any concerns or improve any constraints you experience? What timeframe and considerations would need to be taken into account in adopting new standards?

Question 19: What solutions can be developed to increase competition in the provision of infrastructure and/or managed services to support the technical and operational functions of agency banks partici pating in UK payment systems? How can this be achieved, and what will the impact and benefits of this be to your business?

Question 20: Are incentives to innovate clear under current arrangements? Please also include any concerns you may have regarding fee arrangements and the impact of changing fee structures (such as changes to interchange fees).

Question 21: Do any factors limit your ability or incentives, either collectively or unilaterally, to innovate within UK payment systems?

Question 22: What changes, if any, are needed to facilitate a greater pace of innovation in UK banking and payments? Please refer to your previous answers where relevant.

Question 23: What do you believe are the benefits and limitations of collectively driven innovation vs. unilateral innovation?

Question 24: Do you have any other comments or concerns you would like to highlight?

Question 25: What, if any, are the significant benefits you see regulation bringing?

Question 26: What, if any, are the risks arising from regulation of payment systems?

Question 27: How do you think regulation might affect your business and your participation in UK payment systems?

*Conditions apply. Your answers and any supporting material must be sent under an approved cover sheet set out in Annex 1 to the address shown in Annex 2. The FCA's new web page on payment services regulation is here.