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prepared by the European Commission, published in the EBA Q&A tool · not legislation · published 6 Jan 2023 [Final Q&A]","attribution":{"prepared_by":"European Commission","published_by":"EBA","published_in":"EBA Single Rulebook Q&A tool","document_type":"qa_answer","legal_nature":"not_legislation","addressees":"not stated in the document","dates":{"published_on":"2023-01-06","question_submitted_on":"2021-12-06","locators":{"published_on":"EBA Q&A register entry 2021_6305, field 'Final publishing date'","question_submitted_on":"EBA Q&A register entry 2021_6305, field 'Submission date'"}},"adoption":null}},"provenance":{"official_url":"https://www.eba.europa.eu/single-rule-book-qa/qna/view/publicId/2021_6305","check":{"result":"matched","checked_at":"2026-10-26","against":"the EBA publication"},"repo_path":"spaces/psd2/level-3/q-and-a/eba/eba-qa-2021-6305-articulation-and-interaction-of-the-second-and-the-third.md","body_sha256":"d09154c0d2e7591625832ab8f8837b93d2c26e11c8b8c142b01e094788a4daf3"},"units":[],"markdown":"---\ntitle: \"EBA Q&A 2021_6305 — Q&A — Articulation and interaction of the second and the third [Final Q&A]\"\nshortTitle: \"EBA Q&A 2021_6305 — Q&A — Articulation and interaction of the second and the third [Final Q&A]\"\nanswer_id: EBA_QA_2021_6305\nstatus: \"Final Q&A\"\ntype: qa\ninstrument_type: qa\nauthority: EBA\nbinding: false\nbinding_character: non_binding\nlegal_status: in_force\nregulation: \"PSD2\"\npsd2_level3: true\nmica_level2: false\nlegal_basis: \"Article 74(1) PSD2\"\ndate: 6 January 2023\nsource_link: https://www.eba.europa.eu/single-rule-book-qa/qna/view/publicId/2021_6305\nlifecycle: \"Final Q&A\"\ntext_version: \"EBA Q&A register, 6 January 2023\"\nsource_url: \"https://www.eba.europa.eu/single-rule-book-qa/qna/view/publicId/2021_6305\"\ncheck_status: matched\nverified: true\nlast_checked: 2026-10-26\nchecked_against: \"the EBA publication\"\nsource:\n  prepared_by: \"European Commission\"\n  published_by: \"EBA\"\n  published_in: \"EBA Single Rulebook Q&A tool\"\n  evidence:\n    prepared_by: \"Answer prepared by the European Commission because it is a matter of interpretation of Union law.\"\n    locator: \"EBA Q&A register entry 2021_6305, field 'Answer prepared by'\"\ndocument_type: \"qa_answer\"\nlegal_nature: \"not_legislation\"\naddressees: \"not stated in the document\"\ndates:\n  published_on: \"2023-01-06\"\n  question_submitted_on: \"2021-12-06\"\n  locators:\n    published_on: \"EBA Q&A register entry 2021_6305, field 'Final publishing date'\"\n    question_submitted_on: \"EBA Q&A register entry 2021_6305, field 'Submission date'\"\nlifecycle_label: \"Final Q&A\"\n---\n\n**Answer prepared by the European Commission, published in the EBA Q&A tool · not legislation · published 6 Jan 2023 [Final Q&A]**\n\n*Final Q&A · EBA Q&A register, 6 January 2023 · Checked against the EBA publication on 26 Oct 2026 · [Official source](https://www.eba.europa.eu/single-rule-book-qa/qna/view/publicId/2021_6305)*\n\n| | |\n|---|---|\n| **Full title** | EBA Q&A 2021_6305 — Q&A — Articulation and interaction of the second and the third \\[Final Q&A\\] |\n| **Prepared by** | European Commission |\n| **Published by** | EBA, in the EBA Single Rulebook Q&A tool |\n| **Reference** | EBA_QA_2021_6305 |\n| **Document type** | Q&A |\n| **Legal nature** | Not legislation |\n| **Addressees** | Not stated in the document |\n| **Dates** | Published 6 January 2023; question submitted 6 December 2021 |\n| **Legal basis** | Article 74(1) PSD2 |\n| **Related instruments** | None recorded |\n| **Text on this page** | Word for word — the full text of the EBA publication |\n\n**Articulation and interaction of the second and the third sub-paragraph of Article 74 (1) of the PSD2**\n\n### Question\n\nIn cases where the payer could not possibly detect the loss, theft or misappropriation of his instrument before it was used, is it correct to state that there can be no liability at all, including if the payer has acted with gross negligence?\n\n### Background\n\nWe are seeing an increase in the number of phishing attacks. In many cases, the PSP refuses to apply the rule in Article 74 (1), second subparagraph (a) because they are of the opinion that the victim has acted with gross negligence, which would be an exception to the second paragraph.\n\nAccording to Recital (7) of the PSD2, “In recent years, the security risks relating to electronic payments have increased. \\[...\\] Safe and secure payment services constitute a vital condition for a well-functioning payment services market. Users of payment services should therefore be adequately protected against such risks. Payment services are essential for the functioning of vital economic and social activities”. Thus, the aim is to protect consumers. The Article 74 (1) should be read bearing in mind this objective.\n\nIn Belgian national law, the case of loss, theft or misappropriation of a payment instrument refers, notably, to hacking, phishing or skimming of payment instrument. In other words, \"misappropriation\" also covers cases where personalised security credentials has been stolen while the user is still in possession of the payment instrument. The aim is to protect the victim of the fraud. In this sense, the existence or not of gross negligence on the part of the victim of the fraud should therefore not be relevant in the case where the payer could not have detected the fraud, even if he committed gross negligence. Any other interpretation would make this provision meaningless.\n\nIs this interpretation complying with the Article 74 PSD2?\n\n***\n\n### Answer\n\nThe answer is no. Gross negligence incurs payer´s liability with no cap. In case the payer did not act with fraud or gross negligence, the payer may nevertheless be liable for lost, stolen or misappropriated payment instrument up to a maximum of 50 euros unless such a situation was not detectable to the payer or the loss was caused by acts of the PSP.\n\nArticle 74(1) of Directive (EU) 2366/2015 (PSD2) - third sub paragraph - is the general rule on payer’s liability for unauthorised payment transactions. The payer shall bear all the losses relating to any unauthorised payment transactions if they are incurred by the payer i) acting fraudulently or ii) failing to fulfil one of its obligations set out in article 69 with intent or gross negligence.\n\nArticle 74(1) (first subparagraph) stipulates that the payer may (it is therefore only an option for the Member State) (nevertheless) bear losses up to 50 euros for unauthorised transactions following loss, theft etc. of a payment instrument. This subparagraph is to be understood as applying in the case where the payer did not act fraudulently and had not failed to fulfil one of its obligations with intent or gross negligence.\n\nArticle 74 (1) (second subparagraph) disapplies the above option to oblige the payer to bear losses up to 50 euros established in the first subparagraph\n\na) where the payer could not know that the payment instrument was lost or stolen before it was fraudulently used (except if the payer acted himself fraudulently), and\n\nb) where the loss was caused by an act of the payment services provider, PSP (imprudent sending by post of a card + pin-code for example).\n\nOnly the payer’s fraudulent act is indeed mentioned as an exception to a) above, but not negligence as such.\n\nIn fine, in the overall case where the payer acted fraudulently or failed to fulfil one of its obligations set out in Article 69 PSD2 with intent or gross negligence, his liability cannot in any way be capped according to the third subparagraph of Article 74(1).\n\n***\n\n**Source:** [EBA original document](https://www.eba.europa.eu/single-rule-book-qa/qna/view/publicId/2021_6305)\n\n## Related Level 1 articles\n\n- [Article 74 — Payer’s liability for unauthorised payment transactions](../../../articles/74.md)\n"}