- Question ID
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2022_6360
- Legal act
- Directive 2015/2366/EU (PSD2)
- Topic
- Other topics
- Article
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3
- Paragraph
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o
- COM Delegated or Implementing Acts/RTS/ITS/GLs/Recommendations
- Not applicable
- Article/Paragraph
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- Type of submitter
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Competent authority
- Subject matter
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Exclusion of cash withdrawal services from PSD2
- Question
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If a provider offers cash ATM withdrawal services, not acting on behalf of one or more card issuers but rather through an agreement with the main payment circuits, shall this type of provision be considered exempt from the PSD2?
- Background on the question
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A third country payment service provider manages a widespread network of ATMs in an EU member state in the absence of any authorization by an EU supervisory authority on the assumption to be performing a service falling outside the scope of application of Directive (EU) 2015/2366 (PSD2), pursuant to Article 3(1)(oo), PSD2. According to the mentioned article, the provision of cash withdrawal services falls outside the scope of PSD2 and does not require a license if the ATM operator:
- is acting on behalf of one or more card issuers;
- is not a party to the framework contract with the customer withdrawing money from a payment account;
- does not conduct other payment services.
The rationale of such exclusion is provided in recital 18 PSD2, according to which the exclusion is meant to stimulate the growth of independent ATM services in many Member States, in particular in less populated areas. The provider operates throughout the territory of an EU member state with capillarity through an agreement with the main payment circuits. The provider argues to be compliant with the conditions set in article 3(1)(o) PSD2, alleging that it has entered into an agreement, as ATM operator, with the main payment circuits by means of the common Scheme license that card issuers and ATM operators signed to be able to participate in the Schemes.
In a nutshell, the provider claims that acting 'on behalf of card issuers’ for the purpose of the ATM exemption is to be regarded as any kind of cooperation in the area of executing cash withdrawal transactions conducted with the cards issued by one or more of the issuers and therefore this Iimb of the ATM Exemption would be satisfied by virtue of the agreement between card issuers and ATM operator concluded by means of the common Scheme license (i.e. through the Schemes). In this context, with particular reference to the limb of “Acting on behalf of one or more card issuers”, the provider’s activity could fully fall into the ATM Exemption as all the relevant conditions are met.
- Submission date
- Final publishing date
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- Final answer
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Card issuers provide cash withdrawal services to their customers which often extend to automated teller machines (ATMs) from other networks.
Those ATMs may either belong to payment service providers within the meaning of Directive (EU) 2015/2366 (PSD2) or to other ATM providers, which are not payment service providers.
To offer a service which extends to the ATMs of other networks, card issuers usually enter into a contractual relationship with ATM providers, either bilaterally or multilaterally, to agree on the technical and business rules governing the execution of the transaction, which also includes the charging aspects. Issuers usually enter such contracts with individual payment service providers, a consortium of payment service providers or other ATM providers that do not hold a license to provide payment services.
ATM operators which do not provide other payment services than cash withdrawals and are not a party to the framework contract with the customer withdrawing cash exist and are exempted from the scope of PSD2 under Article 3(o) if they are also acting on behalf of issuers.
In particular, ATM providers act on behalf of issuers once they have entered bilateral/multilateral contracts with issuers, governing the technical and businesses aspects linked to the service.
The fact that card issuers and ATM operators would be operating under the same card scheme rules would suffice to establish the condition referred to in the preceding paragraph for the exclusion from scope under Article 3(o) PSD2, provided that such scheme rules specify that the latter act on behalf of the former and specify the technical and business aspects related to the execution of the ATM transaction. It follows from the above that each case must be analyzed in its own terms.
Disclaimer:
The answers clarify provisions already contained in the applicable legislation. They do not extend in any way the rights and obligations deriving from such legislation nor do they introduce any additional requirements for the concerned operators and competent authorities. The answers are merely intended to assist natural or legal persons, including competent authorities and Union institutions and bodies in clarifying the application or implementation of the relevant legal provisions. Only the Court of Justice of the European Union is competent to authoritatively interpret Union law. The views expressed in the internal Commission Decision cannot prejudge the position that the European Commission might take before the Union and national courts.
- Status
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Final Q&A
- Answer prepared by
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Answer prepared by the European Commission because it is a matter of interpretation of Union law.
Disclaimer
The Q&A refers to the provisions in force on the day of their publication. The EBA does not systematically review published Q&As following the amendment of legislative acts. Users of the Q&A tool should therefore check the date of publication of the Q&A and whether the provisions referred to in the answer remain the same.