Payment services not requiring authorisation
Section 1:5a(2) of the Financial Supervision Act (Wet op het financieel toezicht – Wft) lists the services that do not qualify as payment services. This means they do not require a licence.
Please note that some of these exceptions will have a more restrictive definition under PSD2, which means that more payment services will be subject to the licence requirement after its implementation in the Wft. This may impact the current exception regime for payment services through commercial agents, telecommunications equipment or networks, and limited networks. Below is a more detailed explanation of the changes under PSD2.
Services without a non-cash component
Services involving only cash or paper payment instruments or paper cheques, bills and comparable payment instruments are excepted from the provisions of the Wft. Such services do not involve a payment account and lack a non-cash component.
Similarly, services relating to the transport and handling of cash are excepted from the Wft, but the exception does not apply if they involve a non-cash component. This can be the case, for example, if the cash transported and handled is temporarily deposited in an account held by the cash transport company.
Cash-back transactions are also excepted. These transactions are a service for retail customers whereby an amount is added to the total purchase price of a transaction paid by debit card and the customer receives that amount in cash along with the goods purchased.
Services not involving end users and intra-group services
Payment services not involving any direct end users and intragroup payment services are also excepted under the Wft. Examples include payment transactions over a central payment system, within the payment service provider organisation or between various payment service providers. Likewise, payment services provided between a parent company and subsidiaries are excepted.
Payment transactions arranged through a commercial agent acting on behalf of the payer or payee do not qualify as payment services. A commercial agent acts on behalf of the payer or payee and is involved in the sale of purchase of goods or services.
It always has a lasting commercial collaborative relationship with the payer or payee that goes beyond incidental transactions. In addition, the collaboration entails more than the mere facilitation of payments.
Please note that under PSD2 this exception will be restricted as follows: the exception only applies if a commercial agent acts solely on behalf of either the payer or the payee, and if it has concluded an agreement for this purpose with this party. Furthermore, the commercial agent must have arranged or concluded the transaction between payer and the payee by means of negotiations.
Services related to securities
Services related to the distribution of dividends and the redemption or sale of securities do not qualify as payment services.
Technical support service providers
An enterprise only providing services in support of payment services does not qualify as a payment service provider. The criterion here is that the funds may never come into the possession of the technical support service provider.
Telecom and information technology
If an enterprise provides services enabling payment transactions using a telecommunications, digital or IT device, it does not provide a payment service if:
- it does more than merely act as intermediary for the payment transaction, for example adding value to the services or goods, for instance by providing access to the products or making them easy to find; and
- the product paid for is supplied to and used through a telecommunications, digital or IT device.
This exception applies if the product paid for is used on a smartphone, tablet or computer and only if payment is for digital data.
It does not apply, therefore, to the digital provision of a password or code that can be used to obtain tangible goods or services, whereas it does apply if the password or code can be used to obtain digital goods or services, provided that the other requirements are met.
The exception does not cover a provider of telecommunications, IT or network services that acts solely as an intermediary for payments. This is, for instance, the case if such a provider uses the instrument solely as a channel to offer goods or services to third parties, while payment is effected through the provider of the telecommunications, IT or network services.
Its services are covered by the exemption, however, if it provides added value, for example by offering the use of a proprietary application, website or portal for selling third-party goods and services, adding information or providing tools to make these easier to find.
Please note that under PSD2 this exception will be amended as follows: payment transactions related to gifts for charities will also be excepted. In addition, payment transactions under a statutory defined limit will be excepted.
Payment instruments with limited options for use
Such payment instruments can for instance only be used on the premises of the issuing institution, or only in a restricted network of service providers, or for a limited range of goods or services.
Please note that this exception will be restricted under PSD2, and most small, limited networks will fall outside the scope of the Directive as a result. Under PSD2, a network qualifies as a limited network if the payment services can only be used in the following circumstances:
- for the purchase of goods and services in a specific retailer or specific retail chain which e.g. provides for the use of a single payment brand, which is used at the points of sale and appears, where feasible, on the payment instrument that can be used there; or
- for the purchase of a very limited range of goods or services, such as where the scope of use is effectively limited to a closed number of functionally connected goods or services regardless of the geographical location of the point of sale; or
- where the payment instrument is regulated by a national or regional public authority for specific social or tax purposes to acquire specific goods or services.
Payment instruments covered by the limited network exception could include store cards, fuel cards, membership cards, public transport cards, parking ticketing and meal vouchers. This exception is subject to a notification duty.
Exploitation of ATMs
An enterprise that independently operates ATMs and does not provide any other payment services is excepted from supervision of payment service providers.
These excepted payment services are listed in Section 1:5a(2) of the Wft.