PSD2 – Narrowing the ‘commercial agent’ exclusion

(Note: the below is a high level review of certain potential issues and is not to be relied upon in any definitive manner nor as legal and/or regulatory advice).

PSD2 | commercial agent exclusion

What is the proposal?

The Commission has proposed that the ‘commercial agent’ exclusion under the PSD be narrowed so that its use by e-commerce platforms is restricted, meaning that more e-commerce marketplace business models will likely fall within the scope of EU payments regulation.

Why is it being introduced?

It has been noted that the application of the commercial agent exclusion has been applied differently in various Member States and in particular, that certain Member States allow the use of the exemption by e-commerce platforms that act as an intermediary on behalf of both individual buyers and sellers without a real margin to negotiate or conclude the sale or purchase of goods or services. The Commission notes that this was not the intention of the exclusion.

Why is this important? 

  • Widens the scope of businesses that will need to be regulated and authorised under the PSD.
  • It narrows the exclusion used by many payment related service providers that have set up their systems within a form of agency model. There has been a significant growth in the number of ‘marketplace’ type business models since the previous success of eBay and the requirement to become regulated (or find an alternative solution) will reduce the margins that these businesses offer.

Comments 

  • The proposed amendments are still being negotiated and some drafts make it very unclear as to whether the in fact  e-commerce marketplaces can still take advantage of the exclusion – particularly if they only act as agent for one of its set of customers (typically the seller). There is a high risk of continued uncertainty in this area if the text of the directive is not clarified going forward.

Key draft provisions

Commission Proposal (24 July 2013)  EU Parliament (3 April 2014) Council composite text (1 December 2014) ‘Final Compromise Text’ 2 June 2015
Article 3 – Negative Scope.This Directive shall not apply to any of the following:…(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 either the payer or the payee; No change to Commission text. This Directive shall not apply to any of the following:…(b) payment transactions from the payer to the payee through a commercial agent authorised via an agreement to negotiate or conclude the sale or purchase of goods or services on behalf of:
(i) either the payer or the payee;
(ii) the payer and the payee, provided that the commercial agent does not enter at any moment into the possession of payment service users’ funds;
Article 3 – Negative Scope.This Directive shall not apply to any of the following:(b) payment transactions from the payer to the payee through a commercial agent authorised via an agreement to negotiate or conclude the sale or purchase of goods or services on behalf of only the payer or only the payee;

 

 

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