---
instrument_id: psr
chunk_id: psr_t03_ch09
chunk_title: Product intervention powers by the EBA
path: "Title III RIGHTS AND OBLIGATIONS IN RELATION TO THE PROVISION AND USE OF PAYMENT SERVICES > Chapter 9"
source_class: operative_text
document_type: proposal
normative_weight: non_binding
legal_status: council_compromise_text
jurisdiction: EU
effective_period:
  from: null
  to: null
articles_contained:
  - 104
topics:
  - payments
  - payment_services
  - product_intervention
---

# Chapter 9 - Product intervention powers by the EBA

## Article 104 - EBA temporary intervention powers

1. In accordance with Article 9(5) of Regulation (EU) No 1093/2010, the EBA may, where the conditions in paragraphs 2 and 3 of this Article are fulfilled, temporarily prohibit or restrict in the Union, a certain type or a specific feature of a payment service or instrument. A prohibition or restriction may apply in circumstances, or be subject to exceptions, specified by the EBA.

2. The EBA shall take a decision under paragraph 1 only if all of the following conditions are fulfilled:

   (a) the proposed action addresses a significant number of payment services users or a threat to the orderly functioning of the payment or electronic money markets, and the integrity of those markets or to the stability of the whole or part of these markets in the Union;

   (b) regulatory requirements under Union law that are applicable to the relevant payments service or electronic money service do not address the threat;

   (c) a competent authority or competent authorities have not taken action to address the threat or the actions that have been taken do not adequately address the threat.

Where the conditions set out in the first subparagraph are fulfilled, the EBA may impose the prohibition or restriction referred to in paragraph 1 on a precautionary basis before a payment service or electronic money service has been offered or distributed to payment services users.

3. When taking action under this Article, the EBA shall ensure all of the following:

   (a) the action does not have a detrimental effect on the efficiency of the payments market or electronic money market or on payment service providers that is disproportionate to the benefits of the action;

   (b) the action does not create a risk of regulatory arbitrage, and

   (c) the action has been taken after consulting the relevant national competent authority.

4. Before deciding to take any action under this Article, the EBA shall notify competent authorities of the action it proposes.

5. The EBA shall publish on its website notice of any decision to take any action under this Article. The notice shall specify details of the prohibition or restriction and specify a time after the publication of the notice from which the measures will take effect, while also ensuring that notices on such decisions on natural persons are published only in anonymised version. A prohibition or restriction shall only apply to action taken after the measures take effect.

6. The EBA shall review a prohibition or restriction imposed under paragraph 1 at appropriate intervals and at least every 3 months. If the prohibition or restriction is not renewed after that 3 month period it shall expire.

7. Action adopted by the EBA under this Article shall prevail over any previous action taken by a competent authority.

8. The Commission shall adopt delegated acts in accordance with Article 106 to specify criteria and factors to be taken into account by the EBA in determining when there is a significant number of payment services users or a threat to the orderly functioning of the payment or electronic money markets, and the integrity of these markets or to the stability of the whole or part of these markets in the Union referred to in paragraph 2, point (a).

Those criteria and factors shall include:

   (a) the degree of complexity of a payment service or instrument or electronic money service or instrument and the relation to the type of users, including consumers, to whom they are offered;

   (b) the degree of riskiness, for consumers, of a payment service or instrument or electronic money service or instrument;

   (c) the possible use by fraudsters of the payment service or instrument or electronic money service or instrument;

   (d) the size or the level of uptake of the payment service or instrument or electronic money service or instrument;

   (e) the degree of innovation of a payment service or instrument or electronic money service or instrument.