24 April 2019
The European Banking Authority (EBA) published today an Opinion on the nature of passport notifications of payment institutions (PIs) and electronic money institutions (EMIs) using agents and distributors located in another Member State. The Opinion provides clarity on the criteria that national competent authorities (NCAs) should use for determining when the use of an agent or distributor triggers an ‘establishment' of the appointing institution in the host Member State or falls under the free provision of services.
The Opinion addresses a number of questions that the EBA has received from market participants and NCAs regarding the criteria for determining when agents and distributors of PIs and EMIs are ‘establishments' in accordance with applicable EU law and the case-law of the European Court of Justice. It also clarifies the consequences that the existence of an ‘establishment' has on the obligations applicable to PIs and EMIs under the Electronic Money Directive, the Payment Services Directive and the Anti-money Laundering Directive, and on the allocation of responsibilities between the home and host NCAs.
The Opinion is addressed to national competent authorities. However, given the supervisory expectations it conveys, it could also prove useful for PIs and EMIs providing services on a cross-border basis within the EU.
The EBA has issued the Opinion in accordance with Article 29(1)(a) of its Founding Regulation, which mandates the Authority to play an active role in building a common Union supervisory culture and consistent supervisory practices, as well as in ensuring uniform procedures and consistent approaches throughout the Union.