The rights of payment institutions in respect of the funds (and accrued interest) entrusted to them by their clients have recently been under scrutiny following a rise in deposit interest rates. Is a payment institution allowed to retain interest accrued on funds safeguarded for clients and deposited to a bank account, as required under PSD II?
Some are in favour of the interpretation that payment service providers do indeed acquire ownership of the funds entrusted to them (in which case, they would generally acquire ownership of interest too). In respect of small payment institutions, this can be further supported by prohibition to distribute any interest to clients, as set forth under the Czech Payment Services Act. It can therefore be argued that small payment institutions are not restricted from retaining accrued interest. It is important to note that, under Czech law (contrary to other jurisdictions such as Austria or Poland), such prohibition currently applies only to small payment institutions. Accordingly, when it comes to other types of payment institution, due to the lack of any specific public law guidance, this matter shall be governed by civil rather than public law.
Due to the absence of a clear regulatory framework addressing this issue in the Czech Republic, this question largely boils down to an assessment of the class of contractual arrangement under which the contracts for payment services fall. Is this more likely to be a mandate agreement (in Czech: příkazní smlouva) under which a payment institution solely acts as an administrator of the funds or an account agreement (in Czech: smlouva o účtu), which would more likely indicate that the payment institution can retain interest without any further actions needed?
We always advise our clients to specifically address their rights to interest in the terms and conditions or other contractual arrangements with their clients.