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Access to payment systems
Could you explain the meaning of the following exemption paragraph b article 3 of the Directive 2007/64: "b) payment transactions from the payer to the payee through a commercial agent authorised to negotiate or conclude the sale or purchase of goods or services on behalf of the payer or the payee;" For example, is an agent, according to the above exemption, someone who has a contract with a provider of goods or services (e.g mobile thelephony companies) in order to collect debts from accounts that have been issued by the provider and give receips on behalf of the provider, receiving commission payable from the consumer/ payer ?Does the above case fit to any other exemptions of the article 3 of the Directive?
Article 3(b) of the Payment Services Directive (PSD) stipulates that the PSD does not apply to "payment transactions from the payer to the payee through a commercial agent authorized to negotiate or conclude the sale or purchase of goods or services on behalf of the payer or the payee", and therefore, provides for the negative scope of the PSD. The negative scope of Article 3(b) PSD only applies, if the agent is to be classified as a 'commercial agent' as further described in this provision. Therefore, the line needs to be drawn between two related agents, namely the commercial agent and the payment service agent. A decisive criteria for drawing the line is whether the agent acts on behalf of the payer or the payee. In the latter case, the agent would have to be considered as a commercial agent under Article 3(b) PSD and the PSD would not be applicable.
Nonetheless, the bill payment services are not directly mentioned in any of the articles of the directive, but are referred to in Recital 7 as follows: "In some Member States supermarkets, merchants and other retailers provide to the public a corresponding service enabling the payment of utility and other regular household bills. Those bill-paying services should be treated as money remittance as defined in this directive, unless the competent authorities consider the activity to fall under another payment service listed in the Annex." The recital appears to reflect the need for the national competent authorities to make judgments as to which payment service the bill payment service falls under.
While some business models for bill-paying services clearly fall within the scope of the PSD (e.g. when the service is being provided by the bill-payment service provider to the customer wishing to pay his invoice and is effectively a simple money remittance service), other models operate on the basis of the invoice issuer as the principal, with the provider as his agent providing a means by which the bill payer can settle their bills. In this model, the invoice issuer provides the consumer with the option of settling the invoice by payment to the bill payment service provider. Such payment extinguishes the debt by virtue of the agency relationship between the bill payment service provider and the invoice issuer and is therefore equivalent to payment direct to the invoice issuer. In the event of a failure of the bill payment service provider, the risk lies with the invoice issuer, as the client. The bill payer has no exposure, as the receipt issued by the bill payment service provider is evidence of the debt having been extinguished. This is not a payment service, because the invoice is settled as soon as the money is given to the bill payment service provider, there is no request for execution of a payment transaction and therefore no payment order being made.
This service would therefore fall under the exemption in Article 3(b) PSD.