Wednesday, March 04, 2015

ECBs renewed virtual currencies report: implications for the Third Payment Services Directive

This week the European Central Bank (ECB) revisits the subject of virtual currencies (VCS) in a renewed virtual currencies report with a further analysis. I have read the publication with interest to discover that the previous position on the subject essentially remains the same:
- virtual currencies don't come near money or legal tender concepts,
- the uptake of virtual currencies is still very limited
- the wait and see approach of the ECB will be continued.

The typical paragraph that summarises this approach is:
The usage of VCS for payments remains limited for now, which implies that there is not yet a material risk for any central bank tasks, including promoting the smooth operation of payment systems. However, a major incident with VCS and a subsequent loss of trust in VCS could also undermine users’ confidence in electronic payment instruments, in e-money and/or in specific payment solutions. 

Whereas at first sight the report doesn't lead to a lot of new insights, the broader scope of its definition of virtual currencies does beg a number of fundamental questions with respect to the future regulation of payments. These questions lead me straight into a renewed regulatory approach, to be used in the Third Payment Services Directive.

An improved definition
The major improvement of this Eurosystem-report over the previous one lies in its correction of the definition used for virtual currencies. In an earlier blog I commented that the definition was too vague:
“A virtual currency is a type of unregulated, digital money, which is issued and usually controlled by its developers, and used and accepted among the members of a specific virtual community”.
With this report, the definition of virtual currencies has formally changed into:
"a digital representation of value, not issued by a central bank, credit institution or e-money institution, which, in some circumstances, can be used as an alternative to money."

I am quite pleased with this change as it allows for a better understanding and classification of the subject of virtual currencies. Interestingly, the elimination of the element of decentralized issuance leads to a far broader range of virtual currencies than previously discussed. And this leads to an interesting follow up question.

Virtual currencies are suddenly everywhere... 
The table below lists the major payment options in the Netherlands, with the virtual currencies listed at the far right. When looking at the turnover figures, one can understand why the Eurosystem will be primarily monitoring the virtual currency scene. The most interesting observation is however that all the blue coloured segments of the table are now also considered to be virtual currencies.

We can see that in particular the giftcard and transport payments (which are out of scope of the payment regulations for a number of reasons) do amount to quite a substantial payments volume. Literally these payments are now also considered to be payments with virtual currencies. And from an analytical perspective, this is a logical consequence.

Regular (e-) payments
Mobile telephone
Retailer Giftcards
Bitcoin / alt-coins
16 million per day
5 million per day (includes loads)
Premium services
500.000 - 1.000.000 per day
Less than 1000 trx per day in NL
€ 903
€ 2 - € 20
€ 2- € 5
€ 12
€ .?
Payment Services Directive (PSD)
Exemption under PSD2
Explicit exemption of PSD1
Out of scope when issued as a single retailer
Out of scope of PSD

Effectively we can now better appreciate today's payments world, seen from the eyes of the consumer. Because the consumer is not bothered by the details of Payment Services Directives and obscure exemptions of mobile payments. The consumer will use the mobile or ticketing payment means as a matter of convenience (or: obligation) and will have to undergo the payment experience as a fact of life.

Particularly in the Netherlands this leads to the interesting situation where a sloppy and easily hackable implementation of NFC is being widely used for public transport payments, alongside a safer NFC implementation of banks that is still working on its nationwide roll-out. Users use them both.

Similarly interesting was the occurrence, last month, of a virtual currencies bank run. As retailer V&D threatened to go out of business, one could witness the sale of its pre-paid gift cards on Marketplace (the Dutch ebay) for considerable discounts. At the same time everyone in the Netherlands dug up and spent their old gift cards, before it was too late.

What the third Payment Services Directive will have to look like 
If we take the wider definition of virtual currencies that the ECB uses, it becomes clear that the user experiences with virtual currencies (and losses: for example the sudden vaporisation of retailer gift card value after a period of 18 months) happen alongside the heavily PSD-regulated instruments and mechanisms.

Based on some prudential rules we now burden some forms of payments with a whole lot of rules, while we neglect all schemes that are out of scope (but may still have relevant consumer effects). This difference is - in my view - too big and requires a changed approach to be used for the Third Payment Service Directive (PSD3).

Under the Third Payment Service Directive, we should recognise that payments can and will be made and offered by everyone to everyone. The PSD3 should thus define a light-weight conduct supervisory framework for all payment mechanisms, regardless of the institutional status of the issuer. Alongside this wide conduct framework, we keep the current prudential framework intact, which outlines the prudential rules applicable to the different institutional payment setups (e-money, payment institution, bank).

The new conduct based framework would apply to payment mechanisms and e-money alike and have as a goal that the user is always properly informed on the basic terms and conditions, redeemability etcetera. The control-mechanisms should not be supervision based, but could be reputation-based for example, allowing the market to monitor and redress, rather than costly supervisors. Only in exceptional circumstances would a European conduct supervisor step in.

In sum: more analysis ahead
The broader scope of the Eurosystems definition of virtual currencies begs a number of fundamental questions with respect to the future regulation of payments. In particular the area of non-regulated payment schemes at the fringes of the PSD might deserve more attention than they do receive right now.

Not only could the question be whether or not a separate regulatory conduct-framework should apply, the European Retail Payments Board might also decide to expend its analysis towards these mechanisms, particularly when they reach a volume/scale which is equivalent to that of the regular payments.