# PSD3 Article 9 — Safeguarding requirements

Textual state: amended_substantial. 587 words changed; 1 paragraph added

- Current text: Council final compromise text (Council document 8222/26) — not yet law.
- Compared against: COM(2023) 366 final — superseded.
- Classification is mechanical; method: https://paymentslaw.eu/method/
- Editorial review state: not_assessed. Markers are curated and selective, not a complete assessment.

Word-level diff, proposal → compromise: `{+text+}` was inserted, `[-text-]` was deleted.

## Paragraph 1

1. Member States shall require a payment institution which provides payment services as referred to in Annex I, points (1) to (5), or [-electronic money services, -]{+point (8), +}to safeguard all funds {+other than electronic money tokens +}it has received from payment service users or through another payment service provider for the execution of payment transactions, or where applicable the funds received in exchange for electronic money that has been issued, in [-either -]{+one or more +}of the following ways: (a) {+the payment institution shall ensure that +}those funds [-shall not be -]{+as soon as possible are no longer +}commingled [-at any time -]with the funds of any natural or legal person other than the payment service users on whose behalf the funds are held; (b) those funds shall be covered by an insurance policy or some other comparable guarantee from an insurance company or a credit [-institution, -]{+institution authorised in a Member State, +}which does not belong to the same group as the payment institution itself, for an amount equivalent to the amount that would have been segregated in the absence of the insurance policy or other comparable guarantee, payable in the event that the payment institution is unable to meet its financial obligations. For the purposes of the first subparagraph, point (a), where the payment institution still holds the funds and has not yet by the end of the business day following the day when the funds have been received, delivered those funds to the payee or transferred those funds to another payment service [-provider, -]{+provider in order to complete +}the {+transfer of the funds to the payee, the +}payment institution shall do either of the following: (a) deposit those funds either in a separate account in a credit institution authorised in a Member State, or at a central bank at the discretion of that central bank; (b) invest those funds in secure, liquid low-risk assets, as determined by the competent authorities of the home Member State; [-Payment -]{+For the purposes of the first subparagraph, point (a), Member States and payment +}institutions shall [-insulate -]{+ensure that +}those funds {+are insulated +}in accordance with national law in the interest of the payment service users against the claims of other creditors of the payment institution, in particular in the event of insolvency. {+By way of derogation from the second subparagraph, point (a), Member States may allow payment institutions to deposit those funds in a separate account in a post office giro institution referred to in Article 2, paragraph 1, point (b), of [Regulation XXX (PSR)], provided that that post office giro institution is established in a Member State and is supervised and subject to prudential requirements comparable to those applied to credit institutions. For the purposes of the first subparagraph, payment institutions shall ensure that they safeguard the amount that corresponds to the claim against the payment institution of the payment service user arising from the provision of payment services. Payment institutions shall inform their payment service users in a clear and transparent manner how funds of the individual user are safeguarded, the insolvency law of which Member State is applicable, and in which Member State a claim is to be raised in the event of the insolvency of the payment institution. By way of derogation from subparagraph 1, and without prejudice to paragraph 4 of this Article, where a payment institution issues electronic money tokens, it shall safeguard the funds received in exchange for the electronic money tokens in accordance with the methods set out in Article 54 of Regulation (EU) 2023/1114.+}

## New paragraph 1a

{+1a. Funds of payment service users held by a payment institution in settlement accounts with payment systems designated under the Directive 98/26/EC shall be considered as compliant with the requirements set out in paragraph 1 if those funds are not commingled with the funds of any natural or legal person other than payment service users. Member States shall ensure, without prejudice to requirements of Directive 98/26/EC, that funds of payment service users held in settlement accounts with payment systems are insulated in accordance with national law in the interest of payment service users against the claims of other creditors of the payment institution, in particular in the event of its insolvency. The first subparagraph shall apply only to those payment systems where the funds used for settlement are ultimately held in credit institutions or central banks.+}

## Paragraph 2

2. [-Payment -]{+Where payment +}institutions {+use the safeguarding method set out in paragraph 1, first subparagraph, point (a), they +}shall [-avoid -]{+avoid, where appropriate, +}concentration risk to safeguarded [-customer funds by ensuring that the same safeguarding method is not used for the totality of their safeguarded customer -]{+payment service users' +}funds. In particular, they shall endeavour not to safeguard all [-consumer -]{+payment service users' +}funds with one credit institution.

## Paragraph 3

3. Where a payment institution is required to safeguard funds under paragraph 1 and a portion of those funds is to be used for future payment transactions with the remaining amount to be used for services other than payment services, that portion of the funds to be used for future payment transactions shall also be subject to the requirements of paragraph 1. Where that portion is variable or not known in advance, Member States shall allow payment institutions to apply this paragraph on the basis of a representative portion assumed to be used for payment services, provided that such a representative portion can be reasonably estimated on the basis of historical data to the satisfaction of the competent authorities.

## Paragraph 4

4. [-Where a payment institution provides electronic money services, funds -]{+Funds +}received for the purpose of issuing electronic money need not be safeguarded until the funds are credited to the payment institution’s payment account or are otherwise made available to the payment institution in accordance with the execution time requirements laid down in Regulation XXX [PSR]. In any event, such funds shall be safeguarded by no later than the end of the business day following the day when the funds have been received, after the issuance of electronic money. {+A payment institution issuing electronic money shall ensure that holders of that electronic money, both the payment service user having exchanged funds for electronic money and the beneficiary of a payment transaction in electronic money, are always entitled to redemption at par value and upon request, through the issuing payment institution.+}

## Paragraph 5

5. [-Where a payment institution provides electronic money services, for -]{+For +}the purpose of application of paragraph 1, secure, {+liquid, +}low-risk assets are asset items falling into one of the categories set out in Table 1 of Article 336(1) of Regulation (EU) No 575/2013 for which the specific risk capital charge is no higher than 1,6 %, but excluding other qualifying items as defined in Article 336(4) of that Regulation. For the purposes of paragraph 1, secure, {+liquid, +}low-risk assets are also units in an undertaking for collective investment in transferable securities (UCITS) which invests solely in assets as specified in the first subparagraph. In exceptional circumstances and with a proper justification, the competent authorities may, based on an evaluation of security, maturity, value or other risk elements of the assets as specified in the first and second subparagraphs, determine which of those assets shall not be considered as secure, low-risk assets for the purposes of paragraph 1.

## Paragraph 6

6. A payment institution shall inform the competent authorities in advance of any material change in measures taken for safeguarding of funds received for payment services provided and in case of [-electronic money services -]{+the payment service referred to +}in {+Annex I, point (8), in +}exchange for electronic money issued.

## Paragraph 7

7. The EBA shall develop regulatory technical standards on safeguarding requirements, laying down in particular safeguarding risk management frameworks for payment institutions to ensure protection of users’ funds, and including requirements on segregation, designation, reconciliation and calculation of [-safeguarding -]{+safeguarded funds. They shall in particular specify the circumstances in which it is appropriate to avoid concentration risks as referred to in paragraph 2 of this Article, taking into account the principle of proportionality, and requirements on segregation and reconciliation of payment service users' +}funds [-requirements. -]{+held in settlement accounts pursuant to paragraph 1a of this Article. +}The EBA shall submit those draft regulatory technical standards to the Commission by [ OP please insert the date= 1 year after the date of entry into force of this Directive]. Power is delegated to the Commission to adopt the regulatory technical standards referred to in the first subparagraph in accordance with Articles 10 to 14 of Regulation (EU) No 1093/2010.