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It depends on the restrictions on depositing, transferring and withdrawing funds in and from the accounts whether the savings accounts qualify as payment accounts – to which account information or payment initiation service providers (third parties) must be allowed access in accordance with Articles 66 and 67 of PSD2. Savings accounts that allow unrestricted funds transfers to other accounts qualify as payment accounts (see Notes).
In the Netherlands, most savings accounts have one or more fixed contra accounts. On 4 October 2018, the Court of Justice of the European Union (CJEU) ruled that savings accounts with a fixed contra account were not to be regarded as payment accounts. This ruling was made on the basis of PSD1. In the meantime, the European Commission has made it clear to the Dutch Ministry of Finance that this Court ruling – with the caveat that ultimately only the European Court can give a definitive interpretation – also applies under PSD2, as the definition of "payment account" in Article 4(12) of PSD2 remains the same as in Article 4(14) of PSD 1. Savings accounts with one or more fixed contra accounts are therefore not covered by PSD2, according to the European Commission. DNB and the AFM will follow this position.
Providers of savings accounts with a fixed contra account can allow account information service providers, subject to the consent of the individual account holders, to access savings accounts outside PSD2. Savings accounts providers may do so on the basis of agreements with the third parties in question – provided they are clear about this towards their account holders.
We wish to point out, however, that competition rules may apply to the question whether access must be provided to third parties. Restricting such access may be in violation of competition rules. This could also apply to savings accounts with a fixed contra account. In the Netherlands, the Authority for Consumers & Markets (ACM) oversees compliance with these rules.
Finally, we remind market parties that the General Data Protection Regulation (GDPR) must be complied with when processing personal data including personal data related to savings accounts. In the Netherlands, the Dutch Data ProtectionAuthority (AP) supervises compliance with these rules.
Section 1:1 of the Financial Supervision Act (Wet op het financieel toezicht – Wft) defines a payment account as an account in the name of one or more payment service users that is used to effect payment transactions. Section 1:1 of the Wft subsequently defines the term payment transaction as the depositing, transferring or withdrawing of funds, irrespective of whether there are any underlying obligations between the payer and the payee.
In 2008, the European Commission stated in a Q&A document that savings accounts qualify as payment accounts if the holder can deposit, transfer and withdraw funds without any additional intervention or consent from his payment service provider.
Possible restrictions that prevent the holder from freely depositing and withdrawing funds are:
- The payment service provider applies administrative charges or contractually defined penalties for depositing, transferring or withdrawing funds.
- Depositing funds requires administrative action (e.g. concluding a new agreement)
- Depositing, transferring or withdrawing of funds is limited to e.g. a specific number of times or to specific periods.
Fixed-term deposits for instance do not qualify as payment accounts, according to the Commission, since it is not possible to withdraw funds from such accounts instantly and without restrictions.