In its May 20 news release, De Nederlandsche Bank (DNB) signals that there are still (electronic) trading platforms operating in the Dutch market that do not have a license to provide payment services. That DNB signals this is interesting news, because the new rules for trading platforms have been in place for some time - namely from the implementation of the revised Payment Services Directive (PSD2) in the Netherlands on Feb. 19, 2019. From that date, trading platforms must in principle have a license if they facilitate payment from the buyer to the seller via their own payment account.
authors: Joris van Horzen & Ate Bremmer
Trading platforms are online marketplaces that bring together the supply and demand of third-party goods and services. Behind the online marketplace is a company that charges a fee for each sale made through their platform. Well-known examples of so-called e-commerce platforms include Marketplace, Alibaba, Amazon and e-Bay. With travel agents, and intermediaries in financial products (such as insurance and consumer credit), the PSD2 rules may also be relevant.
It is our experience that not every market participant is always as acutely aware that the PSD2 rules may affect their business operations. That is why we, like DNB, pay brief attention to the rules.
Provision of a payment service may already exist if a platform receives the buyer's funds in its own account when making a purchase, and then passes them on to the seller. Because the trading platform receives the funds on its own account, there is a financial risk in case of bankruptcy of the trading platform. This risk is obviously mitigated if only supervised payment institutions (or banks) are allowed to hold such third-party funds.
For a long time in the Netherlands, the facilitation of payment between a buyer and seller by a trading platform was exempted from the licensing requirement because the payment services were an ancillary activity in the operation of the platform. Since the implementation of PSD2, however, this exception has been dropped.
To comply with PSD2 rules as a platform, 2 options exist:
Leave the payment services to a licensed party, such as a payment institution or bank; or
Offer payment services themselves under a license (or exemption).
What is still sometimes overlooked is that PSD2 additionally provides a statutory exception for commercial agents when it comes to providing payment services. To qualify 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 sale: only for the buyer or only for 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 customer;
there must be an enduring relationship between the agent and the principal;
an agreement must show that the agent is authorized by the principal to make the purchase on behalf of the principal and that in that role the agent is acting only for the principal. Thus, it is important that the agent's capacity is clear to the customer (i.e., that the customer knows that the commercial agent is acting only on behalf of the principal); and
that a payment to the agent results in the customer being fully released from his or her payment obligations to the principal. As such, the client runs no financial risk should the commercial agent go bankrupt.
There is currently little guidance on when there is a trading agent. DNB has not clarified this as yet not in its explanation of the commercial agent exception under PSD2(1, 2). Do you bring buyers and sellers together and does payment between those parties go through you? If so, perform a check to see if this is a case of providing payment services!
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