Money transfer business

The financial transfer business is a payment service in accordance with the Payment Services Supervision Act (ZAG). The object is the transfer of amounts of money without an account-based relationship between the payment service provider and the payment service user. The financial transfer business is legally defined in Section 1 Paragraph 1 Clause 2 No. 6 ZAG. According to this, three alternative facts can be distinguished:

Services in which the service provider accepts a sum of money from the payer exclusively for transmission to the payee .
Services in which the service provider accepts an amount of money from the payer exclusively for transmission to another payment service provider acting on behalf of the payee.
Services in which the service provider accepts an amount of money on behalf of the payee and makes it available to him.

A license from the Federal Financial Supervisory Authority (BaFin) is required to carry out the financial transfer business .

Transmission to the payee (Alt. 1)

Alternative 1 of the financial transfer transaction is fulfilled if the service provider, without a payment account on the part of the payer and the payee, accepts an amount of money from the payer solely for the purpose of transmitting a corresponding amount to the payee.

No transmission via payment accounts

As with the classic transfer or direct debit , the financial transfer business is also about the transfer of amounts of money. The difference in the financial transfer business, however, is that the service provider does not use any payment accounts ( Section 1 (17) ZAG) that he maintains for the payer or the payee. The transfer of the sums of money can probably take place via collective accounts of the service provider. Such accounts are not, however, payment accounts within the meaning of Section 1 Paragraph 1 Clause 2 No. 6 ZAG.

Receiving an amount of money

The prerequisite is that the service provider accepts a sum of money. It does not matter whether the service provider receives the amount in cash, by bank transfer, by direct debit or in any other way.

Acceptance "exclusively" for forwarding

The definition of the financial transfer business in accordance with Section 1 Paragraph 1 Clause 2 No. 6 ZAG provides that the money is received “exclusively” for forwarding. Acceptance, at least for other reasons, does not meet this requirement. The feature of exclusivity can be particularly important for those service providers who only pass on sums of money as an annex to their actual main activity. For example, B. a trustee for the use of funds, in order to forward them - in accordance with the agreements in the trustee agreement - to the beneficiary if the payment requirements are met and to check the use according to its purpose. The main activity of the appropriation controller is therefore not the forwarding of the money. This is only an annex to its main activity - controlling the use of funds.

Actual cash flow or netting

A forwarding of the amounts of money can take place through actual cash flow (transfer of cash or transfer with the help of collective accounts) or offsetting. A billing takes place z. B. when a service provider instructs a cooperating service provider at the payout location to pay out the amount to be transmitted at the expense of his own assets. A compensation then takes place z. B. in that a corresponding financial transfer is carried out in the opposite direction.

Transmission to the payment service provider acting on behalf of the payee (Alt. 2)

In principle, what has been said about the first alternative applies to the second alternative. The only difference to the first alternative is that the amount of money is accepted by a payment service provider who acts on behalf of the payee.

Making an amount of money available (Alt. 3)

The third alternative of the financial transfer business is fulfilled when the service provider accepts an amount of money on behalf of the payee and makes it available to the payee.

In contrast to alternatives one and two, under alternative three, the service provider acts on behalf of the payee. One example of this is the collection of claims with subsequent forwarding of the amounts of money obtained to the creditor.

Practical examples

Provide the money transfer business:

Money remittance agencies (e.g. Western Union or MoneyGram ).
Intermediate portals on the Internet that accept amounts of money from customers for forwarding (at least from the point of view of case law according to the controversial “Lieferheld judgment” of the Cologne Regional Court of September 29, 2011, Az. 81 O 91/11).
Trustees who only receive and forward amounts of money.
Petrol stations, kiosks, etc. as agents ( Section 1 (9) ZAG) or outsourcing companies ( Section 25b KWG) within the framework of certain business models (e.g. Barzahlen.de ).

However, according to BaFin and the reasons for the ZAG, the following do not provide the financial transfer business:

Tax consultants who provide payments as an ancillary service in connection with pay slips;

Collection companies that collect receivables within the framework of an outsourced accounts receivable accounting system or in the sense of a collection process;

the acceptance of so-called cash on delivery payments by the parcel delivery service;

the pure cash transport;

the so-called payment slip business, in which a payment service provider accepts cash from a non-customer with instructions to transfer the amount of money to an account of the payee with another payment service provider.

Money transfer business as an annex to the main activity

Different business models often require - often as a necessary element - the receipt and forwarding of funds. It is controversial whether the resulting financial transfer is only an annex to the main activity and should not be subject to BaFin regulation. From recital 6 of the Payment Services Directive (Directive 2007/64 / EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market, amending Directives 97/7 / EC, 2002/65 / EC, 2005/60 / EC and 2006/48 / EC and repealing Directive 97/5 / EC), on which the ZAG is based, it follows that the directive should only apply to payment service providers whose main activity is to provide payment services. In online mediation portals z. B. the main activity is usually the mediation of goods or services. The billing between customer and dealer is only a supplement (an annex) to the brokerage activity. This would also mean the online portal “Lieferheld” - contrary to the opinion of the Cologne Regional Court (judgment of September 29, 2011, Az. 81 O 91/11) - do not fall within the scope of the ZAG. The same would apply to so-called funds use trustees, whose main task is to check the "whether" and "how" of the use of the amounts of money made available. The receipt and forwarding of funds associated with this task would again only be a necessary annex to the main activity.

Differentiation from factoring

When factoring is the ongoing purchase of receivables based on a framework agreement for financing purposes. The factoring business is a financial service and requires a license in accordance with the German Banking Act (KWG). According to the BaFin, however, there is usually no factoring, but a financial transfer transaction if the factoring company only pays the purchase price for the claim when the claim has been successfully collected from the debtor. From an economic point of view, the service is then aimed at processing payments and no longer at financing. According to BaFin, the existence of the financial transfer business does not preclude the factoring company making its own claim and fulfilling its own liability to the seller of the receivable.

Permission requirement

Pursuant to Section 10 (1) ZAG, a permit from BaFin must be applied for by anyone who conducts the financial transfer business on a commercial basis or to an extent that requires business operations in Germany as a payment institution (Section 1 (1) sentence 1 no. 1 ZAG) want to provide. CRR credit institutions ( section 1 (3d) sentence 1 KWG) or e-money institutions (section 1 (1) sentence 1 no.2 ZAG) can carry out the financial transfer business on the basis of their permission in accordance with section 32 (1) KWG or section 11 Para. 1 ZAG.

literature

Gustav Meyer zu Schwabedissen, Dr. Barbara Dörner, Bénédict Schenkel: Permission to provide payment services. RWS Verlag Kommunikationforum GmbH, Cologne 2014, ISBN 978-3-8145-0381-3 .
Dr. Christopher Danwerth, LL.M .: The financial transfer business as a payment service . Mohr Siebeck, Tübingen 2017, ISBN 978-3-16-154895-6 .