ID 1044. Scope
mobile operator payment services
, Section 7
A telephone network operator under the agreement with the service provider provides telephone lottery services (where the information required for entering a lottery is transmitted to the lottery’s computer database by telephone and a recording is made in the database evidencing participation in the lottery. The player shall pay for entering the lottery through a telephone network operator (costs are added monthly to the telephone bill).
Does such activity fall outside the scope of the Payment Services Directive according to the Article 3(l)?
Payment services offered by telephone network operators are covered by the Payment Services Directive (PSD), if they fall within the definition of Article 4(3) in conjunction with point 7 of the Annex PSD. This is the case when '"[...] the consent of the payer to execute a payment transaction is given by means of any telecommunictation, digital or IT device and the payment is made to the telecommunication, IT systems or network operator, acting only as an intermediary between the payment service user and the supplier of the goods and services"
. Examples are: ordering a pizza or flowers via a digital device or, regarding other services, the payment of car parking or public transportation. In all these cases, the network operator acts only as an intermediary between the payment service user and the provider of goods or services, who simply arranges for payment to be made to a third party.
The limitation set out in Article 3(l) PSD on the negative scope, applies where the telecommunication, digital or IT operator does not only act as an intermediary. This is given, when the operator adds distinct value to the respective goods or services in the form of access, distribution or search facilities (see recital (6) PSD). In those cases the legal framework of the PSD does not apply. The payment of lottery services via a telecommunication, digital or IT device is covered by this limitation, as long as an additional distinct value is added by the operator, e.g. providing for telephone lottery services by enabling the entering of a lottery.