After the last few articles dealt with the various payment services, this one focuses on an exception. Even if a payment service is factual, it is not subject to authorization if an exception applies. An important exception is the so-called “commercial agent exception” under Article 2(1)(2) of the ZAG.
Pursuant to Section 2 (2) No. 2 of the Payment Services Act, payment transactions between the payer and the payee through a central regulator or a commercial agent who is authorized by an agreement to negotiate or conclude the sale or purchase of goods or services only on behalf of the payer or only on behalf of the payee are not considered to be payment services.
The following must therefore apply for the commercial agent exemption:
- An agreement by the person receiving money, either with the payer or the payee. The commercial agent may not act for both.
- The authority to negotiate (purchase) contracts on behalf of the represented party. According to the practice of the BaFin, the commercial agent must be given real room for manoeuvre in negotiations and must also make use of it. This means that the commercial agent must be given the leeway to determine certain conditions or prices independently – at least within a certain framework – during the negotiations.
- As an alternative to negotiation, the commercial agent may also be only authorized to conclude contracts. Here too, however, there must be scope for the commercial agent to decide whether the transaction is ultimately concluded on certain conditions.
BaFin assumes that the commercial agent excemption is generally out of question for Internet platforms. Firstly, because most platforms have contractual agreements not only with the payer or the payee, but usually with both. Secondly, because on typical marketplaces, the conclusion of contracts between buyer and seller is mostly automated and the platform has no room for negotiation. BaFin had already taken this view before PSD2, but PSD2 also further enshrined these principles in law.
It remains to be seen whether this differentiation between the online and offline world is really justified, because even in the offline world commercial agents often have no room for negotiation, but this is how BaFin sees it in its leaflet on the ZAG.
However, despite the provisions of the PSD2, the interpretation of this (and other) exemption provisions has not been fully aligned because other supervisory authorities, especially the commercial agent exemption, interpret it more generously.
Anyone who has read carefully will have noticed that Section 2(1) No. 2 ZAG speaks not only of commercial agents but also of central regulators. A central regulator is usually a purchasing association which negotiates conditions with suppliers for its members and thus usually allows for better conditions. In case of central settlements, the suppliers are then paid at a certain frequency for the member companies. The central regulator can invoke the exception in this case. In practice, however, the central regulator often issues a payment guarantee and/or buys the suppliers’ receivables. However, as the exemption only applies to payment services and not to financial or banking services, in practice many central regulators make use of a licensed institution.
A very brief note: A commercial agent can invoke an exception if they act for only one party and has room for negotiation. The exception does not apply on the Internet.
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