The illegality of payment surcharges (for cards, QRIS and other methods)under Indonesian law

This article discusses the law for charging fees when paying by credit/debit card/QRIS/other transfer methods in Indonesia.

Payment terminals (EDCs) from BCA, BNI and Mandiri

Legal basis

The main law is Bank Indonesia Regulation 23/6/PBI/2021, which revoked regulation 11/11/PBI/2009 as modified by regulation 14/2/PBI/2012.

Before discussing this regulation, we must discuss the legal basis of these regulations.

Under the constitution of Indonesia, the type of regulations that can be made are those set out in law. The law on legislation is Law 12 of 2011. Article 8 provides that Bank Indonesia regulations (among other types of regulation) have binding legal force as long as they are mandated by higher legislation, or based on the institution’s authority.

Law 23 of 1999 is the law on Bank Indonesia. Article 1 provides, at item 8:

Bank Indonesia Regulations are legal provisions stipulated by Bank Indonesia that bind every person/legal entity, and are published in the State Gazette

The law on Bank Indonesia provides:

Article 8 (b):

Bank Indonesia has the task of regulating and maintaining the smooth running of the payment system

Article 15:

(1) In carrying out the task in 8(b) Bank Indonesia’s authority is to:

a. implement and grant approval for the payment system service providers;

b. require payment system service providers to make reports on their activities;

c. determine the use of payment instruments.

(2) The implementation of this authority is by means of Bank Indonesia Regulation.

The clarification to Article 15 provides:

(1)(a) “The approval … [aims to ensure that the] provision of payment system services … meets the requirements, especially security and efficiency requirements.”

(c ) “Determining the use of payment instruments is intended so that payment instruments … meet security requirements”

(2) The main provisions that will be stipulated in Bank Indonesia Regulations include, among others:

a) types of payment provision requiring BI approval
b) responsibilities of payment system providers
c) security and efficiency requirements of payment system providers
d) reporting requirements for payment system providers
e) activity reporting procedures
f) types of payment instruments that can be used by the public;
g) payment instrument security requirements
h) administrative fines apply for violations of items a, d and f

The regulation

Regulation 23/6/PBI/2021 provides, at Article 52:

(1) Providers of Goods and/or Services must not charge additional fees (surcharge) to Service Users in relation to the fees incurred by the Provider of Goods and/or Services from the Payment Service Provider (PSP)

(2) PSPs must ensure compliance by the Providers of Goods and/or Services with the prohibition provided in paragraph 1.

At Article 56:

(1) Payment Service Providers who fail to comply with Article 52 are subject to administrative sanctions in the form of:

a) reprimands
b) temporary suspensions
c) revocation of their PSP permit

Therefore we can see that:

1. it is illegal to charge surcharges, based on Article 52(1) of PBI, which binds everyone in Indonesia as per Article 1 of the law on Bank Indonesia. You can inform merchants that they are breaking the law, and if they are going to try to increase their potential customer base and convenience by accepting non-cash payment methods, they have no choice but to build the fees into their business model. (Processing cash also has costs and risks.) The likes of hotels, restaurants, etc., where the marginal cost of the payment service is insignificant relative to their gross margin, should be regarded with particular contempt when imposing payment fees.
2. the payment service provider has the responsibility to ensure compliance
3. note that the previous (1999) regulation stated that the acquirers were required to stop doing business with the merchants. Now the regulation simply bans the merchants charging the fees and says the acquirers must ensure compliance. This implies that the acquirers should stop doing business with them if they persistently break the law, but it’s no longer spelled out specifically.

How to report law-breaking merchants

You can report these merchants to bicara@bi.go.id. This is owned by Bank Indonesia. Unfortunately, the requested information is grossly excessive and not sent by secure means (i.e. it is sent via email). They ask for:

1. Your ID (KTP)
2. Address and telephone number
3. The name of bank that owns the EDC or QRIS account
4. A copy of the front of the card for credit/debit card, or proof of ownership of the payment facility (e.g., bank account, Gopay, etc.) for non-card transactions
5. The name of the merchant
6. Address of the merchant, time and date of the transaction.
7. Chronology.

It may therefore be better to report the transaction to the payment service provider. In this case, I would suggest not following Bank Indonesia’s template and instead uploading the payment receipt.

Here is a (partial) list of contact addresses for EDC issuers:

• BCA: halobca@bca.co.id
• BRI: callbri@bri.co.id
• CIMB Niaga: 14041@cimbniaga.co.id
• BNI: bnicall@ bni.co.id
• Mandiri: mandiricare@bankmandiri.co.id
• Danamon: hellodanamon@danamon.co.id
• OCBC NISP: tanya@ocbc.id

Here is a template email (edit the details in brackets, and attach the payment receipt):

Subject: Laporan pungutan Surcharge oleh Merchant [bank name]

Body:
Dengan hormat,

Dengan email ini saya melaporkan kegiatan ilegal yang dilakukan oleh merchant [Bank name], yaitu pemungutuan biaya (surcharge) atas biaya yang dikenakan oleh Penyedia Jasa Pembayaran kepada merchant.

Sesuai Pasal 52 Peraturan Bank Indonesia 23/6/PBI/2021 [Bank name] wajib memastikan kepatuhan merchant atas larangan pemungutan surcharge. Apabila [Bank name] tidak memenuhi kewajiban tersebit, [Bank name] bisa dikenakan sanksi administratif dari Bank Indonesia, termasuk pencabutan izin menyelenggarakan jasa pembayaran.

Detil kejadian adalah:

Nama merchant: [merchant name]

Tanggal/waktu kejadian: [date & time]

Alamat kejadian: [address]

Surcharge yang dipungut: [% surcharge that was charged]

Data saya sebagai pelapor sekaligus pemilik alat pembayaran:

Nama: [your name]

Alamat: [your address]

Email: [email]

Telepon: [telephone]

Saya melampirkan bukti berupa struk yang dikeluarkan oleh EDC [Bank name] yang membuktikan adanya pemungutan surcharge.

References

• Bank Indonesia Regulation 23/6/PBI/2021
• Law on Bank Indonesia, Law 23 of 1999