Open banking – when will it start?

Dr Marcin Olechowski and Dr Wojciech Iwański of Sołtysiński Kawecki & Szlęzak dive into the intertemporal conundrum that has created legal uncertainty around the launch date for open banking in Poland!

A cornerstone of the open banking revolution is the ability of third party providers (TPPs) to interface with the systems of account servicing payment service providers (ASPSPs) – usually traditional banks – in order to provide customers with certain services based on the accounts that ASPSPs manage.

In the European Union, the interfacing between TTPs and ASPSPs has been ushered in by the Second Payment Services Directive (EU Directive 2015/2366; PSD2). PSD2 requires ASPSPs to grant access to TPPs that operate either as payment initiation service providers (PISPs) or account information service providers (AISPs). The uniform solutions introduced by PSD2 replace a fragmented pre-existing regime where national regulations addressed the issue in a variety of ways.

In Poland, the new PSD2 regime was incorporated into the Payment Services Act (PSA) through the Amending Act of May 10 2018, which entered into force on June 20 2018 and provided for a general transition period until December 20 2018. At the same time, ASPSPs and TPPs are both required by the Regulatory Technical Standards set out in the Commission Delegated Regulation (EU) 2018/389 of November 27 2017 (RTS) to implement a number of security measures by September 14 2019.

This has resulted in some uncertainty as to which of those dates triggers the obligation for Polish ASPSPs to enable direct access for TPPs in accordance with PSD2 principles.

We argue in this article that the correct interpretation is that the obligation to allow TPPs direct access to client accounts will only arise when a given ASPSP is RTS-compliant, which should occur no later than September 14 2019.