PSD2 and the rules for electronic trading platforms; will DNB enforce them?
In its news report of 20 May 2020, the Nederlandsche Bank (DNB) observes that there are still (electronic) trading platforms active on the Dutch market that do not have an authorisation for the provision of payment services. It is interesting news that DNB is noticing this, because the new rules for trading platforms have been in force for some time already – namely from the implementation of the revised Payment Services Directive (PSD2) in the Netherlands on 19 February 2019. As of that date, trading platforms should, in principle, have an authorisation if they facilitate payment from the buyer to the seller through their own payment account.
Trading platforms are on-line marketplaces that bring together the supply and demand of goods and services of third parties. Typically, the on-line marketplace is run by a company, which charges a fee for every sale made through their platform. Well-known examples of so-called e-commerce platforms are Marktplaats, Alibaba, Amazon and e-Bay. Less striking examples of on-line marketplaces may for example be travel agents or intermediaries in financial products (such as insurances and consumer credit), whose set-up may nevertheless have characteristics that makes the PSD2 rules also be relevant.
It is our experience that not every market party is always fully aware that the PSD2 rules can have an impact on business operations. That is why, just like DNB, we briefly pay attention to the rules.
Provision of payment services as a trading platform
The provision of a payment service may already exist if a platform receives the funds from the buyer in its own account at the time of a purchase, and then passes it on to the seller. Because the trading platform receives the funds in its own account, there is a financial risk in the event of bankruptcy of the trading platform. This risk is of course mitigated if only supervised payment institutions (or banks) are allowed to hold such third-party funds.
In the Netherlands, for a long time the facilitation of payment between a buyer and a seller by a trading platform was exempted from the authorisation requirement because the payment services were an ancillary activity in the operation of the platform. However, since the implementation of PSD2, this exception has lapsed.
The possibilities for trading platforms
To comply with the rules of PSD2 as a platform, there are two possibilities:
- entrust the payment services to an authorised party, such as a payment institution or bank; or
- provide their own payment services on the basis of an authorisation (or exemption).
What is sometimes overlooked is that PSD2 also provides for a statutory exception for commercial agents when providing payment services. In order to be eligible for this exception, a number of conditions must be met:
- an agent may only act on behalf of one of the two parties involved in a purchase: only the buyer or only the seller (hereinafter: the agent’s principal);
- the agent must conclude or negotiate the sale or purchase of the goods or services in question between the principal and the client;
- there must be a long-term relationship between the agent and the principal;
- an agreement must show that the agent has been authorised by the principal to conclude the sale on behalf of the principal and that the agent is only acting for the principal in that role. It is therefore important that the capacity of the agent is clear to the client (i.e. that the client knows that the commercial agent is acting only on behalf of the principal); and
- that a payment to the agent results in the client being fully released from his or her payment obligations towards the principal. As such the client runs no financial risk if the commercial agent would go bankrupt.
There is currently little guidance as to the question of when a commercial agent is involved. DNB has not as yet clarified this in its explanation of the exception for the commercial agent under PSD2 (1, 2). Are you a party that brings buyers and sellers together and is the payment between those parties made through you? In that case, check whether this is a case of providing payment services!
If the rules are correctly applied, PSD2 does not have to be a hindrance for marketplaces. Joris van Horzen and Ate Bremmer have assisted various parties in setting up the activities related to the payment process. Would you like to know more about PSD2 and the exception for commercial agents? Then contact either of them.
