Payment services and ADR
The provision of art. 102 section 1 of Directive 2015/2366 (i.e. the so called PSD2 Directive) requires Member States to establish adequate, independent, impartial, transparent and effective procedures for alternative dispute resolution between payment service users and payment service providers regarding the rights and obligations arising from regulations.
In the first place the user or holder of electronic money pursuant to art. 15 of Payment Services Act may lodge a complaint with the authority supervising the provider or issuer of electronic money about the action of that provider, the issuer of electronic money or an agent of such entity, if this action violates the law. The user may also lodge a complaint with the Polish Financial Supervision Authority or the competent supervisory authority about the action of an agent or a branch of a provider of payment services in the territory of the Republic of Poland as a host Member State. However for some complaints of consumer nature the competent authority is the Financial Ombudsman (its competence is regulated under the Act of 5 August 2015 on consideration of complaints by financial market entities and the Financial Ombudsman).
In Polish practice if the complaint procedure does not reach its finality, disputes arising from payment services are dealt with by the Arbitration Courts: at the Polish Financial Supervision Authority, the Financial Ombudsman and the Association of Polish Banks – Banking Consumer Arbitration. In addition, one can use the services of a Banking Ombudsman itself or go to the Court before the Office of Competition and Consumer Protection (UOKiK).
On of the dedicated bodies to disputes arising between non-banking payment service providers and consumers is undoubtedly the Court of Arbitration at the Polish Financial Supervision Authority. Within it, two ways of amicable settlement of disputes have evolved: mediation and the arbitral tribunal.
Insofar as both parties agree to mediation, the settlement concluded before the mediator as well as the judgment issued by the Arbitration Court after their recognition by the competent locally and materially common court in accordance with the provisions of the Code of Civil Procedure, have the legal force of a court judgment. The mediation fee at the Mediation Center of the Arbitration Court is PLN 50 and shall be paid by the applicant. In the case of a group application, a fee of PLN 50 is collected from each applicant, but its total value may not exceed PLN 1,000. In particularly justified cases, the President of the Arbitration Court, at the request of a party, may release him in whole or in part from his obligation to pay the fee.
Arbitration fees, in case of a dispute before the Arbitration Court, in turn range from PLN 150 to 1,000 per case. Importantly, dispute resolution within the Arbitration Court at the Polish Financial Supervision Authority can be used by both consumers in relation to providers and providers in relation to consumers.
Detailed information on mediation and arbitration at the PFSA Arbitration Court can be found at https://www.knf.gov.pl/dla_konsumenta/sad_polubowny
The payment service providers must inform their recipients about out-of-court dispute resolution, which is regulated in Poland by the Act of 23 September 2016 on the out-of-court resolution of consumer disputes (Journal of Laws of 2016, item 1823). Such an obligation results even from the wording of Art. 15c of the Payment Services Act, which imposes an obligation on the provider to inform the user about the entities authorized to conduct such proceedings, as well as about the method and procedure for obtaining by the user detailed information on the principles of dispute resolution by the authorized entity. This information must be precise, comprehensive and easily accessible on the provider’s website, if any, and in its branch, as well as in the general terms of the provider-user contract.
Article 27 (7b) of the Payment Services Act also imposes on the provider the obligation to include in the contract information on out-of-court complaint procedures referred to in Article 15 of the Payment Services Act, and out-of-court dispute resolution procedures available to the user.
In addition, with regard to the procedure for the transfer of a payment account between providers, the transferring or receiving provider shall inform the consumer, free of charge and at consumer’s request, in a transparent and legible manner about the procedure for transferring a payment account, among others indicating out-of-court dispute settlement procedures, including competent arbitration courts. This information is provided by the provider in paper form in all its outlets available to consumers, or in electronic form, and is also made available on its website (Article 59ik (1)(6) in connection with (3) of the Payment Service Act.
You can learn more about out-of-court dispute resolution options at https://ec.europa.eu/consumers/odr/main/?event=main.adr.show2
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