PSD2, Online and Mobile Payments : What Transparency for the Future of Payments?

The contribution analyses the EU regulatory framework for retail online and mobile payment services, in particular with regard to the additional transparency, clarity and legal certainty established by the PDS2, compared to the PSD1, on certain key aspects, such as: the scope of the EU law on the matter; the legitimate pricing practices and customers' information duties; the terms of execution of payment transactions. Specific attention is reserved to the analysis of the advantages and issues relating to the implementation of the innovative security and communications requirements lately established by the EU law for Internet and mobile payments, namely the Strong Customer Authentication (SCA), the need for a dynamic-linking and the new communication standards. In this respect one the conclusions of the analysis is that such security and communications requirements are actually to be regarded also as dual-purposes obligation, i.e. they are not only an additional security measure, but rather also very peculiar transparency measures. On a more general level it is also highlighted a paradox consisting in the fact that while the PSD2 and relating EU Delegated acts pursue the objective of enhancing transparency, clarity and legal certainty on the matter, however they end up establishing a very detailed legal framework which results to be somehow too much rule-based and prescriptive, so giving rise to numerous issues as to its correct and harmonized implementation. This is also confirmed by the fact that the EBA had to play an active role and intervene frequently so as to ensure a common EU approach to the application of PSD2 regulatory framework by publishing formal opinions, guidelines and a vast number of Q&As which have increasingly become a kind of informal source of EU law on the matter, so making the resulting regulatory framework even more complex, multi-layered and detailed though. For example, the EBA had to acknowledge that certain issues and concerns exist regarding the state of preparedness of some actors in the payment services value-chain to the new SCA requirements, primarily with regard to e-commerce merchants, and therefore communicated that “on an exceptional basis and in order to avoid unintended negative consequences for some payment service users" a certain supervisory flexibility or an "enforcement moratorium" on SCA requirements had to be allowed temporarily at national level