Eligibility of communication by AISPs with ASPSP throughout interface used for authentication and communication with the ASPSP's payment services users in case of ASPSP’s exemption from the fall back mechanism

Question no 1:   Does a fact, that based on art. 33(6) RTS, given ASPSP was granted by competent authority with exclusion from the obligation to set up the contingency mechanism described under art. 33(4) RTS, means, that such exemption merely gives this ASPSP a right not to set up the contingency mechanism, and hence, this is up to ASPSP to enjoy and to follow this exclusion, or whether, in opposition, this exemption creates on ASPSP side obligation to bring this exclusion to life.   Question no 2:   Does a fact, that given ASPSP was granted by competent authority with exclusion from the obligation to set up the contingency mechanism described under art. 33(4) RTS, creates on AISP’s end any kind of obligation, for instance lack of right to communicate with ASPSP in question throughout interface made available to the payment service users for the authentication and communication with their ASPSPs.

Art. 33(6) RTS provides grounds for competent authorities to exempt given ASPSP, that has opted for a dedicated access interface, from the obligation to set up the contingency mechanism under art. 33(1) RTS. However, under RTS, it is not clear, whether granting of exemption under art. 33(6) RTS merely gives ASPSP a right not to set up the contingency mechanism, and hence, this is up to ASPSP to enjoy and to follow this exclusion, or whether, in opposition, this exemption creates on ASPSP side obligation to bring this exclusion to life.   It happens, that in above depicted scenario, given ASPSP, being granted with exemption from the obligation to set up the contingency mechanism under art. 33(1) RTS (information of which being derived from generally accessible sources of information, i.e. Internet), nevertheless makes available to AISPs two access interfaces within a meaning of art. 31 RTS, i.e. (i) dedicated interface and (ii) interface used for authentication and communication with the ASPSP's payment services users. Therefore, in lack of relevant RTS provision, question arises, whether in above scenario, any kind of obligation arise on AISPs’ side, for instance lack of possibility to communicate with ASPSP in question throughout interface made available to the payment service users for the authentication and communication with their ASPSPs, especially in situation, where nevertheless, ASPSP allows AISPs for communication throughout this access interface.       Above depicted unclarity brings further uncertainty to AISPs acting in given EU member states. In some jurisdictions exemption from the obligation to set up the contingency mechanism under art. 33(1) RTS is being granted in form of an individual, administrative decision addressed directly to ASPSP and there is no public register, based on which third parties, including AISPs, might verified, whether given ASPSP was in fact given with exemption to set up the contingency mechanism. Source of this information (knowledge) predominanlty comes from generally accessible sources of information, i.e. Internet. As a consequence, in lack of public register, AISPs does not possess certain, firm knowledge of exemption being granted to ASPSP.