Preparing an opinion on the authorisation requirement for the provision of payment services
Currently, many service models in e -commerce involve the provision of payment services.
This is the case, for example, when the owner of a marketplace wants to act as a payment intermediary and take possession of funds or when he wants to store funds by operating so-called virtual wallets. We can also talk about the provision of payment services when the owner of the marketplace wants to have more control over the payment processing within the trading platform or even when he or she does not want to use intermediaries for payment processing. An analysis of the specific service model allows an answer to be given as to whether the service requires the relevant authorisations.
For our client, a large marketplace platform, we drafted an opinion evaluating several prudent business models involving the provision of technical services and payment intermediation between sellers and buyers.
The subject of the analysis was whether the marketplace owner would be required to obtain a licence to provide payment services as a national payment institution or whether the planned business model would benefit from an exemption from the authorisation requirement.
In drawing up the opinion, we analysed in particular whether the marketplace owner would be entering into a cash holding. This determination was essential for assessing whether the planned activity constitutes a payment service. According to the provisions of PSD2 and the Payment Services Act, e-commerce platforms do not need to obtain a payment service authorisation if “(…) acting simultaneously for both parties to the transaction, they do not take possession or control of customers’ funds.”
The opinion prepared by the Firm, analysing the admissibility of the exemption from the payment services authorisation requirement, enabled the client to make important business decisions regarding the direction of the platform.
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For our client, during regular legal advice, we developed documentation for an anti-money laundering and counter-terrorist financing system (hereinafter “AML/TF system”, maximum penalty for violating those laws may result in financial penalty up to 5 million EUR).
As part of our ongoing cooperation with a client, a small payment institution, providing payment services including issuing of credit cards and providing payment credit to consumers, we represent the client in the proceedings for obtaining a license to provide payment services as a national payment institution.