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Dose the service qualify a payment service?

According to the facts of the case, the sellers of electronic goods enter into a contract with the operator of an e-commerce portal in order to facilitate the sale of the sellers' products to the buyers through the platform via contracts of sale and purchase. The operator is entitled to remuneration from the sellers for this intermediary activity. There is an agency contract between the sellers and the operator, and a sales contract between the sellers and the buyers. The purchase price paid by the purchaser is collected and recorded by the operator in his payment accountand then, at specified settlement periods, transferred to the sellers, who pay the commission fee by deducting it from the goods’ countervalue collected by the operator.

In the case, the MNB first examined whether the commercial activities of the operator qualify as payment services. Under the Credit Institutions Act, accepting payment transactions is considered a payment service. A payment transaction is accepted if, as a result of a contract with the payee (money holder), money is transferred to the payee. According to the MNB, this is the case, i.e. the operator accepts and processes payment transactions, i.e. it performs a payment service.

If the activity qualifies as a payment service, the activity of the operator is subject to a licence from MNB.

PSD2 does not cover activities whereby a payment intermediary acts solely on behalf of the payer or the payee

However, according to recital 11 of Directive 2015/2366 of the European Parliament and of the Council on payment services in the internal market (PSD2), PSD2 does not cover activities whereby a payment intermediary acts solely on behalf of the payer or the payee, regardless of whether or not they are in possession of clients\' funds. If the payment intermediary acts on behalf of both the payer and the payee (as in the case of some e-commerce platforms), the exception to the scope applies only if the payment intermediary itself never holds the funds of the clients and does not have influence over them. Based on PSD2, it is therefore important, on whose behalf the intermediary is acting.

Accordingly, Article 3 (b) of PSD2 and the provision in the Credit Institutions Act transposing it stipulates that the transaction provided by an independent commercial agent acting on behalf of the payer or the payee under an agency agreement, if the commercial agent is also entitled to payment transaction, does not qualify as a payment service.

The PSD2 exception applies

In this case, the purchasers are in possession of the goods, provided that the consideration for the products is paid, regardless of when the amount of the payment transaction is actually passed on to the sellers. MNB emphasized in its resolution that the exception in this case prevails, therefore the activity performed is not a payment service, since the operator acts solely on behalf of the sellers as beneficiaries, as the operator is entitled to remuneration only from the seller.

dr. Andrea Egertz attorney at law