Payment Services and E-money Business
Ausnahmen : Deutsche VersionExceptions : English version
Latest  news

News

11.07.2014

„Amazon Coins“ kein BaFin-reguliertes E-Geld

Das Thema alternative Zahlungsmittel taucht immer öfter in den Medien auf. Die Düsseldorfer...

05.07.2014

Treuhänder und das Zahlungsdienste-Aufsichtsgesetz (ZAG)

Wann unterliegt ein Treuhänder dem Zahlungsdiensteaufsichtsgesetz (ZAG)? Diese Frage ist für viele...

03.06.2014

Der Einzug eigener Forderungen als regulierungspflichtiger Zahlungsdienst?

Im aktuellen BaFin Journal (Ausgabe April 2014, S. 9) vertritt die Bundesanstalt für...

Activities not requiring Permission

In addition to specifying the different payment services section 1 subsection 10 ZAG enumerates 15 cases which by legal definition do not constitute payment services. The activities described in section 1 subsection 10 ZAG may therefore be conducted without permission. Some of the exceptions enumerated in the provision constitute legal fictions, while others are just declaratory clarifications. The above named exceptions in detail are:

  • payment transactions made exclusively in cash directly from the payer to the payee
  • payment transactions from the payer to the payee via a commercial agent or central settler
  • professional physical transport of banknotes and coins
  • cash pay-outs in the supermarket (so called „cash back process“)
  • money exchange business settled in cash
  • payment transactions based on a paper-based cheque, a paper-based bill of exchange, a paper-based voucher, a paper-based traveller’s cheque, or a paper-based postal money order
  • payment transactions carried out within a payment or securities settlement system
  • payment transactions related to securities asset servicing
  • services provided by technical service providers, which support the provision of payment services
  • services based on instruments that can be used to acquire goods or services only in the premises used by the issuer or under a commercial agreement with the issuer either for the acquisition within a limited network of service providers or for the acquisition of a limited range of goods or services
  • digital payments as ancillary services made in addition to a digital transmission
  • payment transactions executed between payment service providers for their own account or between their agents or branches for their own account
  • payment transactions within a corporate group
  • setting up, maintenance and cash supply of ATMs
  • non-professional cash collection and delivery within the framework of a non-profit or charitable activity.

In practice particularly relevant is that services based on instruments that can be used to acquire goods or services only in the premises used by the issuer or under a commercial agreement with the issuer either for the acquisition within a limited network of service providers or for the acquisition of a limited range of goods or services do not constitute a payment service. Such instruments are in particular loyalty cards of a chain store, petrol cards (e.g. “Essocard”), voucher cards employable within a certain department store (shop-in-shop) or payment cards for a particular cafeteria, holiday resort, sports stadium or university campus. Cards issued for public transport which enable one to pay for one’s fare, are covered by the exception, too. The exception creates many opportunities for merchants. On the other hand, though, there is a thin line between activities which require a licence and other services which may be provided without permission. Before engaging in a new area of business, a thorough examination is therefore necessary.

It should also be emphasised that payment transactions between payer and payee via a commercial agent or central settler do not constitute payment services. This is only true, though, if the commercial agent or central settler is authorised to negotiate or conclude the sale or purchase of goods or services on behalf of the payer or the payee. A central settler who does not himself negotiate or conclude contracts may in particular cases be forced to adjust his business model accordingly to fall within the scope of the exception.

The technical services as defined by the exception are for example provided by a technical network operator approved by the organisation of the German banking industry (Deutsche Kreditwirtschaft) in the so called electronic cash system, who is mainly responsible for the transport of data in the process of authorisation of a payment process and for the technical system security. The technical service provider must be distinguished from the so called commercial service provider. A commercial service provider provides - in addition to the services of a technical service provider – also all other services necessary for merchants accepting card payments (e.g. customer service for card terminals). If the commercial service provider processes card payments via his own account that activity is no longer within the scope of the exception. The commercial service provider then conducts the payment authentication business.