Direct access to Spanish payment systems for EMIs and payment institutions — the Article 8 bis route

A Spanish EMI or payment institution will not be able to apply to join a designated payment system until the Banco de España has already said yes — and if the Banco de España says nothing, the answer is no. Spain’s proyecto de ley de digitalización y modernización del sector financiero, published in the Boletín Oficial de las Cortes Generales on 27 July 2026, opens direct participation in Spanish payment systems to payment institutions and electronic money institutions and builds a pre-clearance gate in front of it. This is a bill in parliamentary passage, not law: nothing below is a current obligation. But the procedure it sets out is the one to plan against, because the EU deadline it implements passed in April 2025.

1. Where this comes from, and why Spain is late

The change is not a Spanish invention. Regulation (EU) 2024/886 of 13 March 2024 — the instant credit transfers regulation — amended Directive 98/26/EC, the settlement finality directive, so that “institution” includes a payment institution (other than one benefiting from a waiver under Article 32 or 33 of PSD2) and an electronic money institution (other than one benefiting from a waiver under Article 9 of Directive 2009/110/EC). The same regulation inserted a new Article 35a into Directive (EU) 2015/2366 (PSD2) setting the conditions such an institution must satisfy when it asks to participate, and a new Article 35(3) on indirect access.

Article 5 of Regulation (EU) 2024/886 required member states to adopt, publish and apply the measures needed to comply with those two amending articles by 9 April 2025. The bill’s final provisions state expressly that it incorporates Article 2(b) and (f) of Directive 98/26/EC and Articles 10(1), 35(2), 35(3) and 35a of PSD2 in the wording introduced by Regulation (EU) 2024/886. The national machinery a Spanish institution needs in order to exercise a right it has held since April 2025 is, in other words, still going through the Cortes.

Status as at mid-August 2026: presented on 17 July 2026, processed under the urgent procedure with full legislative competence delegated to the Comisión de Economía, Comercio y Transformación Digital, amendment window running to 9 September 2026. Any article number below can still move.

2. What changes in the settlement-finality law

Article 2 of the bill rewrites points 1 and 2 of Article 2 of Ley 41/1999, on payment and securities settlement systems, which is Spain’s settlement finality implementation. Payment institutions as defined in Article 4(4) of PSD2 and electronic money institutions as defined in Article 2(1) of Directive 2009/110/EC are added to the list of bodies that qualify as an entidad — with the same waiver exclusions as the directive. The qualification is conditional: they count when they participate in a system whose activity consists of executing transfer orders of the kind in Article 10(a) of the law, and when they are responsible for discharging the financial obligations arising from those orders inside the system.

The bill also rewrites Article 3(b), the recognition test for a system. A designated system needs at least three participants drawn from a list that now includes payment institutions and electronic money institutions alongside credit institutions and investment firms, all of them Spanish or authorised to operate in Spain, with at least one having its central administration in Spain. That is the structural point: a payment institution is no longer only a customer of the clearing system, it can be part of the quorum that makes one.

3. The three documents Article 8 bis requires

Article 15 of the bill inserts a new Article 8 bis into Real Decreto-ley 19/2018, the Spanish payment services law. It is the domestic version of PSD2 Article 35a, and it requires a payment institution or electronic money institution that asks to participate — and that participates — in a designated system to have three things in place:

• a description of the measures taken to safeguard payment service users’ funds;
• a description of the governance arrangements and internal control mechanisms for the payment or e-money services it proposes to provide, including administrative, risk-management and accounting procedures, and a description of the arrangements for the use of ICT services in relation to Articles 6 and 7 of Regulation (EU) 2022/2554 (DORA);
• a winding-up plan in case of failure.

Each is then specified. For safeguarding by segregation, the description must cover the investment policy that keeps assets liquid, safe and low-risk; the number of people with access to the safeguarding account and their roles; the administration and reconciliation process protecting users against claims by other creditors, in particular on insolvency; a draft of the contract with the credit institution; and an explicit statement of compliance with Article 21 of the law. For safeguarding by insurance, it must confirm the insurer or credit institution is outside the institution’s own group, describe the reconciliation process that keeps cover sufficient at all times, state the duration and renewal conditions, and attach the policy or its draft.

The governance description must demonstrate the arrangements are proportionate, adequate, sound and appropriate, and must include the risk inventory and the procedures to assess and prevent those risks, the frequency and staffing of periodic and permanent controls, the accounting procedures, the identity and an up-to-date CV of the people responsible for internal control, the identity of any non-statutory auditor, the composition of the management body, how outsourced functions and how agents and branches are supervised, and — for the subsidiary of an entity regulated in another member state — group governance. The winding-up plan must be sized to the business model and describe the measures that would guarantee execution of pending payment transactions and resolution of existing contracts.

4. The Banco de España gate, and its clocks

Article 8 bis(6) is the operational centre. A payment institution or electronic money institution authorised in Spain that intends to access a system designated under Ley 41/1999 must, before filing the participation application, submit to the Banco de España the documentation evidencing the three items. The Banco de España then has three months from entry in its electronic register to resolve and notify. If that period passes with no express decision, the institution is deemed not to comply. A finding of non-compliance must be reasoned in writing, and the institution then has a maximum of one month to remedy, after which the Banco de España has 15 working days to rule — again with silence meaning non-compliance, and that 15-working-day window applies even where it ends after the original three months.

The affirmative resolution is then, in the bill’s words, an indispensable requirement for filing the participation application with the system. The same procedure applies where a Spanish institution wants to access a designated system in another EEA state.

Facts: a Spanish EMI wants to settle its own euro instant transfers rather than route them through a sponsoring bank, and pencils in a go-live one quarter out.

What the rule says: Article 8 bis(6) puts the Banco de España pre-clearance before the application to the operator, with a three-month clock in which silence counts against the institution.

What the practitioner does: works backwards from the operator’s own admission calendar and adds the statutory worst case — three months, plus a month to remedy, plus fifteen working days — before the participation application can even be lodged, and treats the ICT description under DORA Articles 6 and 7 as the long-lead item, because it has to be evidenced rather than asserted.

Outcome: the project plan starts with a documentation freeze, not a technical connection date.

5. Indirect access becomes a right you can ask for

The bill also rewrites Article 8(2) of Real Decreto-ley 19/2018 to carry the new PSD2 Article 35(3). Where a participant in a system designated under Ley 41/1999 allows an authorised or registered payment service provider that is not a participant to pass transfer orders through the system, that participant must, on request, offer the same possibility to other authorised or registered providers in an objective, proportionate and non-discriminatory manner — and must give the requesting provider detailed reasons for any refusal. The paragraph does not apply to payment systems composed exclusively of payment service providers belonging to a single group.

Facts: a payment institution reaches the clearing system today through a sponsoring credit institution. A competitor is sponsored by the same participant. The institution asks for the same arrangement and is told informally that the bank is not taking on new sponsored traffic.

What the rule says: once the participant grants indirect access to one non-participant provider, the amended Article 8(2) obliges it to extend the same opportunity on objective, proportionate and non-discriminatory terms when asked, and to give full reasons if it refuses.

What the practitioner does: puts the request in writing so that the duty to give reasons is engaged, keeps the correspondence, and files the reasons given against the objective, proportionate and non-discriminatory standard — because a refusal with no stated grounds is the weakest position the participant can take.

6. Who owns the clearing system, and who has to approve that

Article 2 of the bill also rebuilds the regime for the company that manages the Sistema Nacional de Pagos Minoristas, Spain’s national retail payment system, which had been essentially untouched since 1999. Three changes matter to a payments firm.

First, the shareholder base. Shares may be held by entities participating in the payment systems the company manages and assuming settlement obligations towards them — which, with the change above, now includes payment institutions and electronic money institutions, not only credit institutions. Second, the corporate purpose is widened to cover, alongside operating the systems, technical, operational, consultancy and data-processing services in payments and in fraud prevention; new services in that category must be described to the Banco de España in advance, with a risk and impact analysis, and may start only once a period fixed by circular has passed without objection. Third: acquiring a significant holding — 10% of capital or voting rights, or a stake permitting notable influence — or crossing the 10%, 20%, 30% or 50% thresholds, or coming to control the company, requires prior administrative authorisation.

That authorisation runs through the Dirección General del Tesoro y Política Financiera to the Ministry of Economy, Trade and Enterprise, which must resolve within three months, with silence treated as refusal. Before resolving, the Treasury must obtain reports from the Banco de España, SEPBLAC’s Servicio Ejecutivo, the CNMV and the Dirección General de Seguros y Fondos de Pensiones, each binding within its own competence. The stated criteria are financial stability, the sound functioning of the payment system, public order, public security and sound and prudent management. A transitional provision exempts holdings acquired before the law enters into force.

7. FAQ

8. What to do, today

Three things are worth doing before the text is final, because none of them depends on the final wording.

• Assemble the Article 8 bis file now. The three items are already fixed at EU level by PSD2 Article 35a, so the substance will not change in the Cortes. The two components that cannot be produced quickly are the ICT description tied to DORA Articles 6 and 7 and the winding-up plan; both are documentation projects, not drafting exercises.
• Re-read your safeguarding description against the specified list. The named access-control detail — how many people can reach the safeguarding account and what their roles are — and the reconciliation process are the items most firms have as practice but not as a document.
• If you use indirect access, put the request in writing. The duty to give detailed reasons for refusal only bites against a request, and the correspondence is the evidence.

And diarise mid-September: the amendment window closes on 9 September 2026, and the article numbers cited here are the numbers in the bill as published on 27 July 2026, not in a statute.

Related: the Instant Payments Regulation · payment institution licence in Spain · EMI licence in Spain · safeguarding compared across the EU