Legal aspects e-mandates

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1 Legal aspects e-mandates European Payments Platform 2014 Euroforum Annemieke van der Beek Joris van Horzen 16 December 2014

2 SEPA mandates With a mandate the debtor authorizes (1) the creditor to collect payments by direct debit and (2) the bank to debit the debtor s bank account when a direct debit collection is presented; e-commerce and m-commerce business are unable to manage paper based mandates; E-mandates represent a highly interesting option for creditors, service providers and banks;

3 Creditor-driven mandate flow SDD schemes are based on a "creditor-driven" mandate flow; The debtor bank does not receive the mandate; The mandate is only verified by the debtor bank if the debtor makes a refund claim (after the first 8 weeks but before the 13 months from the debit date); Before 8 weeks: "no-questions-asked" refund right; The acceptance of an e-mandate is the debtor bank s call;

4 Verification Verification by the debtor bank of a paper-based mandate: Debtor bank will assess the handwritten signature on the mandate; Verification by the debtor bank of a an e-mandate: Debtor bank will have to assess the electronic signature an electronic signature has the same legal effect as a handwritten signature, provided that the method for authentication is secure; no real guidance on what is considered as secure authentication and no conclusive case law;

5 Legal framework PSD (article 7:522 of the Dutch Civil Code): direct debit must be authorised by the debtor; SEPA regulation: the expression of consent and authorization given by the payer to the payee and (directly or indirectly via the payee) to the payer s PSP to allow the payee to initiate a collection for debiting the payer s specified payment account and to allow the payer s PSP to comply with such instructions ; SDD scheme rules: the mandate may be an electronic document which is signed using a legally binding method of signature ; Annex VII of the SDD rulebook

6 Safe solutions method 1 There are 3 electronic methods of signatures which are generally considered as a legally binding method of signature by all debtor banks; Method 1: Using a qualified electronic signature (as defined by regulation 2014/910/EU) - 2-corner model has the same legal effect as a handwritten signature, requires a certificate-service-provider

7 Safe solutions - method 2 Method 2: Using a solution where the debtor bank is involved in the authorization process of the e-mandate); 3-or 4-corner model

8 Dutch Banks e-mandate solution 3 or 4-corner model Compliant with Annex VII of the SDD rulebook Dutch banks are developing a standard e-mandate solution that follows the 4-corner model, which distinguishes the following steps: 1. The debtor must first enter all the required data (including IBAN) and select its own bank on the creditor s website; 2. The creditor sends a request to the creditor bank s routing service. 3. The request is sent to the debtor bank (who will check correctness of IBAN).

9 Dutch Banks e-mandate solution 4. The debtor, who has been redirected to his own bank (ideal), is presented with an authorisation request. 5. The debtor confirms the authorisation request. This last step is essentially equivalent to the signing of a paper-based mandate. 6. The debtor bank verifies the debtor s confirmation. If correct, a confirmation will be sent to the debtor s browser; 7. The debtor bank delivers the "signed" e-mandate to the creditor bank s routing service 8. The creditor bank s routing service sends the signed" e-mandate to the creditor 9. The creditor will then confirm to the debtor that the mandate has been properly issued.

10 Dutch Banks e-mandate solution Advantages: Fully automated end-to-end processing of e-mandates; The e-mandate is agreed on in a secure way; No additional means of identification are necessary; The creditor will be automatically listed in the whitelist ; Pursuant to the SEPA regulation, a debtor may instruct its bank to only allow collections from a creditor identified in a 'white list'. In the event that the creditor is excluded from the 'white list', the payment will be rejected.

11 Dutch Banks e-mandate solution Disadvantages?: This is a domestic solution and not a cross-border solution Exclusive? Is the debtor bank free to decide which e- mandates (that are in conformity with the SDD rulebook) it will accept? Can a creditor decide that it only needs a 2 corner model e-mandate in case of small or recurrent payments? Fees?

12 Safe solutions method 3 Method 3: The other safe solution is involving of a trusted service provider (accepted or acting on behalf of the debtor bank), using features that allow a proper authentication of the debtor and ensure the integrity of the e-mandate in order to demonstrate that the mandate was duly authorized.

13 Risks for creditors What are the risks for creditors? if the creditor uses weak mandates it should accept the risk that, in case of an after eight-week refund claim, the money is likely to be debited from its account; However: there s still a payment obligation of the debtor pursuant to the underlying contract; the percentage of refunds is very limited; risk based approach: 2-corner solutions for low amounts and or 4-corner solutions for high amounts.

14 Report ERPB Report of the Euro Retail Payments Board (ERPB) Publish an country specific inventory of all identified national and pan-european legally binding methods of signature applicable for e-mandate solutions; It should be clarified which county s law applies when assessing if an e-mandate signature is valid or not; The service providers must be open to interoperability and if feasible make use of the technical description provided in annex VII of the SEPA Direct Debit scheme rulebooks

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