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2015. november 11., szerda
2015. október 26., hétfő
PSD2 Narrows Exclusions from Payment Institution Licence - How Commercial Agents and Limited Networks are Regulated uner the New Regime
In payment transactions where a
commercial agent acts as an intermediary in the usual scenario (payee – payer -
commercial agent), the risks against which PSD1 secures the market and users do
not arise in principle.
However the picture becomes different if we take into account such huge online
marketplaces like eBay or Amazon. Under PSD1 it was possible to get an
exemption in order to avoid from requiring a payment institution license:
“Payment transactions from the payer
to the payee through a commercial agent authorized to negotiate or conclude the
sale or purchase of goods or services on behalf of the payer or the payee.”
The exclusion was made available for
payment transactions carried out from the payer (buyer) to the payee
(seller/merchant) through a commercial agent authorized to negotiate or
conclude the sale or purchase of goods or services on behalf of the payer or
Lieferheld, a German platform for
the delivery of meals was sued by a competitor because it offered online
payment for its clients. A German court decided that Lieferheld unlawfully
offered payment services. Subsequently, Lieferheld changed its contract terms
with restaurants in order to comply with the commercial agent exemption and to
continue to offer its payment services without a payment institution license.
Even though many online platforms
have sought to rely on the above exemption, not every EU regulator has accepted
it for this purpose. Particularly, the German regulator, BaFin has issued
public guidance discouraging its use.
The Study on the impact of PSD1 has
also confirmed that based on the insufficient clarity of PSD1 regarding a
situation where the provider acts for both parties at the same time, providers
facilitating the trade of goods or services between a payer and payee may seek
to rely on the exemption for commercial agents to remain outside the PSD regime.
Although the language of Article
3(b) has not materially changed in PSD2, reference to the word “agreement”
became important. According to the Study on the Impact of Directive 2007/64/EC,
businesses providing mere communication with no specific focus on any of the
participants should not benefit from the exemption because active solicitation
is required. The
second important feature of this Article is that the exemption applies when agents
act only on behalf of the payer or payee but not both:
“Payment transactions from the payer
to the payee through a commercial agent authorized via an agreement to
negotiate or conclude the sale or purchase of goods or services on behalf of only
the payer or only the payee.”.
Where agents act on behalf of both parties (e.g. eBay)
the exemption will only apply in cases where the agent does not come into
possession, or have control of, clients’ funds.
It seems though that PSD2 does not
exclude totally its applicability from the e-commerce marketplace providers.
These could still rely upon this exemption if they act as agents of their
customers, that is merchants, although the transaction is carried out to the benefit
of both merchants and buyers. This will be left to the national law to decide
whether to exempt such marketplaces or to apply a strict approach and deny
The PSD1 exempts payment
transactions based on payment instruments accepted only within the issuer's
premises or certain limited networks:
“Services based on instruments
that can be used to acquire goods or services only in the premises used
by the issuer or under a commercial agreement with the issuer either within
a limited network of service providers or for a limited range of goods or
This applies e.g. to store cards,
gift cards, fuel cards and loyalty programs. There are four joint conditions of
1. the service
should involve an instrument,
2. the service
shall be designed for paying for goods or services,
3. the goods or
services are purchased on the issuer’s premises and finally
4. the limited
nature of either the service provider network (regardless of the range of goods
or services) or of the range of goods or services affected by the payment.
So the question arises whether
loyalty cards valid for certain stores and their subsidiaries which are used to
acquire an unlimited range of goods are caught or not? What does a limited
network actually mean? Do premises include the internet?
The French financial regulator, ACP
tried to interpret the above exemption of PSD1 restrictively. Thus the above
exemption was limited to a network of stores operating under the same brand. It
explicitly excluded subsidiaries and other third parties within the network
using other brands. Interestingly, the Conseil d’Etat has overruled this
decision but has specified that a network may be considered as limited if it
meets other objective criteria, such as "a limited geographical area,
significant financial relations, or close commercial relations, between members
of the network." The French court highlighted that anyone providing
payment services, even if it is exempted from a license is involved in the
financial system, therefore the ACP can impose any conditions "which are
designed to safeguard the security of means of payment and protect their
The German BaFin also applied the strict approach: no authorization was
needed for local public transport cards even when used for the purchase of
travel supplies and petrol cards were exempted only when issued by local petrol
stations. Where the
choice of products was particularly limited (i.e. only transport service),
BaFin has shown willingness to accept a nationwide scope. Department store
cards usable in multiple stores belonging to one concern were considered to
require authorisation by BaFin. Discount cards may thus only be issued without
authorisation where their application is regionally limited.
According to the Recital of PSD2 the
main reason for re-regulating this exemption was to catch those unregulated
service providers whose payment activities often comprise significant payment
values but escaped regulation due to PSD1’s vague and too general wording:
“Feedback from the market shows that
the payment activities covered by the limited network exception often comprise
significant payment volumes and values and offer to consumers hundreds or
thousands of different products and services, which does not fit the purpose of
the limited network exemption as provided for in Directive 2007/64/EC. That
implies greater risks and no legal protection for payment service users, in
particular for consumers and clear disadvantages for regulated market actors.
To help limit these risks, the same instrument cannot be used to make payment
transactions to acquire goods and services within more than one limited network
or to acquire an unlimited range of goods and services.”
These players are now competing
regulated institutions and therefore enjoy unjustified competitive advantages
in terms of initial capital and liabilities.
Although PSD2 tried to make the wording precise this was not very
successful as the current text contains some undefined legal terms which are
subject to interpretation. This causes legal uncertainty and results in an
approach that PSD2 tried to aviod: different national interpretations will
co-exist and the application of the exemption will need to be decided on a
On the bais of PSD2 the directive shall not apply to
(k) services based
on specific payment instruments that can be used in a limited way should be
excluded if one of the following conditions is met:
1. instruments allowing the holder to acquire
goods or services only in the premises of the issuer or within a
limited network of service providers under direct commercial agreement with
a professional issuer;
2. instruments which can be used
only to acquire a very limited range of goods or services;
3. instruments valid only in a single Member State provided at
the request of an undertaking or a public sector entity and regulated by a
national or regional public authority for specific social or tax purposes to
acquire specific goods or services from suppliers having a commercial agreement
with the issuer”.
The main criticism of PSD1’s limited
network exemption was that there were no clear guidelines on what is meant by
limited other than some domestic regulator’s case by case guidance. PSD2 does nothing to
further clarify the criteria of this exemption.
Reference to premises is
insufficient as a lease relationship between the issuer and seller could be an
adequate substitute. The wording of “limited networks of service providers
that are under direct commercial agreement with a professional issuer“ is not
explicit enough. Direct could mean the exclusion of subcontractors, therefore
PSPs in a limited network must conclude commercial contracts with the issuer
directly but not with its subcontractors. The term professional issuer remains
Let’s compare (a) a card issued by a large department store with nationwide
presence for acceptance in its own stores (e.g. Tesco’s clubcards) and (b) a
card ssued by several merchants (i.e. a group of companies) (e.g the Hungarian
While (a) will not require authorization, in case of (b) it seems that
authorization would be necessary on the basis of the term that the network is
not very limited.
The new expression of PSD2 “very
limited” is not explicit. Instruments for the acquisition of only one range of
goods are definitely covered but what about 3, 5 or 20 ranges?
Unlike PSD1, PSD 2 under Article 30 provides for mandatory notification by
PSP’s if they intend to offer activities within a limited network. Accordingly, PSPs
cannot commence operations and then decide whether the preconditions have been
met. On the contrary, they shall ask for a mandatory review by the authorities
before commencing their activity if their payment transactions exceed a
threshold of EUR 1 million of the preceding 12 months. The description of
services shall be made publicly available on EBA’s website.
This concept again would go contrary
to the principle of the internal market as the procedure could imply divergent
interpretation and also could distort competition. Furthermore, the public
disclosure of the decision could persuade how certain regulators may approach
its review. Given the uncertainty of the scope of this exemption, PSPs would be
prudent to seek regulatory approval regardless of the payment transactions
volumes carried out.
Source of picture: Wikipedia
 Study on
the Impact of Directive 2007/64/EC on Payment Services in the Internal Market,
London Economics, 2013 February p.124
 Article 3(b) of
 Merkblatt -
Hinweise zum Zahlungsdiensteaufsichtsgesetz (ZAG), December 2011 http://www.bafin.de/SharedDocs/Veroeffentlichungen/DE/Merkblatt/mb_111222_zag.html
 Study on the
 Study on the
 “Article 3(b) of
 Recital 18 of
 Article 3(k) of
 Case No.354957 ECLI:FR:CESSR:2013:354957.20130424 of
the Conseil d’ Etat,
 Dr. Matthias Terlau, Dr. Daniel Walter, „PSD2 –
Future authorisation requirements for department store cards, gift vouchers,
petrol cards and stadium cards? The new limited network exception“ (2013) Payment
Services Law Blog
 Merkblatt - Hinweise zum Zahlungsdiensteaufsichtsgesetz (ZAG), December
 Recital 12 of
 Recital 12 of
3(k) of PSD2
 Recital 12 of
 SuperShop is
not a prepaid card. Certain % of each purcahse is credited to the card.
The cardholder can use this card for purchases within a limited network
of merchants, e.g. Spar, OMV, Burger King. www.supershop.hu
30(4) of PSD2
2015. október 17., szombat
It seems that not only customer convenience but also liability and its financial consequence was the real reason for MasterCard to vote for less stringent authentication requirements. According to Article 66 1c of PSD2: