- Question ID
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2022_6489
- Legal act
- Directive 2015/2366/EU (PSD2)
- Topic
- Authorisation and registration
- Article
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4
- Paragraph
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3
- COM Delegated or Implementing Acts/RTS/ITS/GLs/Recommendations
- Not applicable
- Article/Paragraph
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Not applicable
- Type of submitter
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Law firm
- Subject matter
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The definition of payment services and in particular the definition of execution of payment transaction in relation to netting centers
- Question
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1. Is an (international) non-profit association, acting as netting centre in the framework of a multilateral netting agreement entered into between its members, that receives and forward funds to and from its members through a bank account opened in its name deemed to carry out payment services falling within the scope of Article 4(3) of Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC ('PSD2') (e.g. the execution of payment transaction or money remittance)?
2. If the netting center is deemed to carry out payment services, can the netting centre rely on exclusion of Article 3(n) of PSD2, i.e. 'payment transactions and related services between a parent undertaking and its subsidiary or between subsidiaries of the same parent undertaking, without any intermediary intervention by a payment service provider other than an undertaking belonging to the same group'?
- Background on the question
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Multilateral netting is a treasury procedure that consists of grouping multiple cash flows into a single netted amount for each participant.
As it is the case between affiliates of a same group, multiple cash flows can take place between members of an (international) non-profit association. Indeed, the members of the (international) non-profit association can be involved in commercial relations between them (i.e. providing services and/or goods to each other). A non-profit association (whether international or not) may hence wish to enter into multilateral netting agreement in order to streamline administration and processing times for its members, to gain access to competitive exchange rates, to reduce time spent on collecting invoices and to simplify the time consuming process of transferring monies to their commercial partners among the members of the (international) non-profit association.
In the framework of a multilateral netting agreement, the participants upload their payable invoices into a netting system. The netting system periodically (e.g. monthly) calculates for each participant how much it should pay and receive from each participant it has done business with, and return with one single value for each participant to pay or to receive in respect of the relevant period. The funds are then transferred to a netting centre, i.e. in this case, a payment account opened in the name of an (international) non-profit association. The netting centre will then execute required foreign exchange spot deals and forward the funds to the respective receiving participants.
The funds flow might look as follows: the funds are transferred from the member's bank account to the netting centre's bank account. The funds are aggregated by the netting system and the members in a net payable position will pay from their bank account to the netting centre’s bank account and the netting centre will transfer funds from its bank account to other member’s bank account being in a net receivable position.
- Submission date
- Final publishing date
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- Final answer
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According to EBA Q&As 2020_5216 and 2020_5099, the receipt and forwarding of funds qualifies as a payment service according to Article 4(3) of Directive (EU) 2015/2366 (PSD2) in conjunction with Annex I PSD2, unless an exclusion according to Article 3 PSD2 is applicable.
In the case described, however, the association receives funds from members in net paying positions and transfers funds to members in net receiving positions via a payment account held in its name by a licensed payment service provider for the execution of payment transactions.
The association thus appears to act in the capacity of payment service user, i.e. as a payee, where it receives funds from net paying members, and as payer, where it transfers funds to net receiving members.
With regard to the first question, i.e. is a netting centre that receives and forward funds to and from its members through a bank account opened in its name deemed to carry out payment services falling within the scope of Article 4(3) of Directive (EU) 2015/2366, based on the description provided, it therefore does not appear that a payment service within the meaning of Annex I PSD2 is being provided to the parties.
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.