Spain has partially implemented the Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market (PSD2) with the approval of the Royal Decree-Law 19/2018, dated 23 November, on payment services and other financial urgent measures (RD-Law 19/2018).
According to Article 4.k) (1) and (2) of the RD-Law 19/2018 (as set out in Article 3.k) (1) and (2) of PSD2), activities excluded from the application of this rule are those “services based on specific payment instruments that can be used only in a limited way, that meet one of the following conditions:
- Instruments allowing the holder to acquire goods or services only in the premises of the issuer or within a limited network of service providers under direct commercial agreement with a professional issuer.
- Instruments which can be used only to acquire a very limited range of goods or services”.
Notwithstanding that these activities are excluded from the application of the RD-Law 19/2018, Article 6 of such rule establishes an obligation for payment service providers which carry out the above activities to notify, within the first quarter of each calendar year, if they have carried out payment transactions in the preceding 12 months for a total average monthly value that exceeds the amount of EUR1 million. At European level this obligation to notify is known as the Limited Network Exclusion (LNE) notification and in Spain the first time this obligation arises is in the Q1 of 2020.
The obligation to notify of Article 6 of RD-Law 19/2018 derives from the implementation of Article 37.2 of PSD2. According to the literal wording of Article 37.2, in the official English version it can be observed that the obligation arises when the total value of the payment transactions, executed in the preceding 12 months, exceeds EUR1 million. In other words, a company is obliged to notify the relevant regulator when the total value of payment transactions exceeds EUR1 million over a period of 12 months. However, the official Spanish version of PSD2, due to an incorrect translation, indicates that the obligation to notify arises when the total monthly average value exceeds EUR1 million in the preceding 12 months. Therefore, this means that the notification threshold for Spain ceases to be EUR1 million over a 12-month period but a monthly average of EUR1 million, implying a minimum threshold of EUR 12 million during the 12 months period.
The Spanish legislator, by using the official Spanish version of PSD2 and ignoring the mistake in the translation, has implemented the criterion of the total monthly average value. Consequently, Bank of Spain, as receiving authority of the LNE notification, shall only require such notification to companies that exceed the thresholds indicated above (i.e. when the total monthly average value of the payment transactions exceeds EUR1 million in the preceding 12 months).
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