Payment services (Germany)

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Payment services are services that are used to process payment transactions . They are dealt with in the Payment Services Supervision Act (ZAG).

General

The ZAG is the transformation of the Payment Services Directive that has been in force in all EU member states since 2015 (Directive (EU) 2015/2366, previously Directive 2007/64 / EC) and finally lists the payment services in Section 1 (1) sentence 2 ZAG. These are:

  1. the deposit or withdrawal business ;
  2. the non- credit payment transaction ;
  3. the payment transaction with the granting of credit;
  4. the acquisition business ;
  5. the money transfer business ;
  6. Payment initiation services and
  7. Account information services.

The provision of payment services is under the supervision of the Federal Financial Supervisory Authority (BaFin). Companies may only provide payment services with a permit in accordance with Section 10 (1) ZAG, which must be applied for from BaFin.

According to Section 675f (5) sentence 1 BGB, bank charges are permissible for all payment services, including cash deposits and cash withdrawals at the bank counter .

Deposit or withdrawal business

The deposit or withdrawal transaction is carried out in accordance with Section 1 Paragraph 1 Clause 2 No. 1 and 2 ZAG, whoever enables cash payments into a payment account (No. 1 ZAG) or cash withdrawals from a payment account (No. 2 ZAG), as well as those who allow all carries out the operations required to maintain a payment account .

In accordance with Section 1 (17) ZAG, a payment account is an account in the name of one or more payment service users and used to execute payment transactions . The current checking account is also essentially a payment account, but - in comparison to the payment account within the meaning of the ZAG - it serves to provide additional services (such as the lending business by paying out a loan to the checking account or the deposit business by means of a credit balance on the checking account ).

Cash deposits into a payment account

The deposit transaction occurs when cash deposits are made possible on a payment account. A credit institution provides such services by accepting cash from a bank customer in order to credit it to the customer's bank account. But every third person who enables the account holder to deposit cash into a payment account also performs the deposit transaction. This applies, for example, to self-employed operators of ATMs at which deposits are also possible.

Cash withdrawals from a payment account

To payment business is, if for book money is cash. A credit institution provides such services by dispensing cash to the bank customer in order to then debit the customer's bank account. But every independent operator of ATMs also performs the payout business, since the machine operator enables the payout. “Cash withdrawals” at the supermarket checkout (so-called “cash back procedure”) are not a payment service. This is made clear by the exception standardized in Section 2 (1) No. 4 ZAG.

Maintaining a payment account

The processes required to maintain a payment account within the meaning of Section 1, Paragraph 17 of the ZAG constitute a payment service. Setting up a payment account is sufficient to use the ZAG. A process required to manage a payment account is e.g. B. the preparation of financial statements .

Non-credit payment transaction

In the case of payment transactions without granting credit, pursuant to Section 1 Paragraph 1 Clause 2 No. 3 ZAG, payment transactions are performed through the execution of direct debits (direct debit transaction), the execution of transfers or real-time transfers (transfer transaction) and the execution of payment transactions using a payment card (e.g. credit card or debit card ) or a similar payment instrument (payment card business).

The payment transaction is only provided by those who are directly involved in the transfer of book money , e.g. B. is involved in direct debit as a payment or collection point. For example, simply submitting a transfer form to the bank is not sufficient. Service providers who only initiate the transfer of book money, such as service providers for so-called "overlay services" (e.g. the providers giropay or instant transfer ) , are also not directly involved .

In the case of payment transactions without credit being granted, the payer's accounts must be covered , i.e. have a bank balance .

Credit payment transaction

In the case of payment transactions with the granting of credit according to § 1 ZAG Paragraph 1 Clause 2 No. 4 ZAG, it is the transfer of book money by direct debit , transfer and card payment with the granting of a credit. A practical area of ​​application are money loans according to § 488 BGB, which are granted in connection with a credit card payment. However, payment institutions pursuant to Section 1 Paragraph 1 No. 1 ZAG are only allowed to grant credit under certain conditions. According to Section 3 (4) ZAG, loans may only be granted as a secondary activity and exclusively in connection with the execution of payment transactions. In addition, the loan may not be granted beyond a term of 12 months. Ultimately, loans may not be granted from amounts of money that the payment institution had previously accepted for the purpose of executing a payment transaction.

Acquisition business

The acquisition business in accordance with Section 1 Paragraph 1 Clause 2 No. 5 ZAG comprises two alternatives, namely the issue of so-called payment instruments (Alt. 1 ZAG) or the acceptance and settlement of payment transactions triggered with payment instruments (Alt. 2 ZAG).

A payment instrument, according to § 1. 20 ZAG any personalized device or method that between the payment service user and the payment service provider for issuing payment orders is agreed, and which is used by the payment service user to a payment instruction to issue. Such instruments or procedures are e.g. B. the Girocard , the credit card or online banking .

Issuance of payment instruments

A payment service in the sense of the ZAG already represents the mere issue of a payment instrument, i.e. z. B. issuing EC cards, credit cards or setting up online banking.

Acceptance and settlement of payment transactions

The second alternative of the acquisition business is fulfilled by the acceptance and settlement of payment transactions triggered with payment instruments. The acceptance and billing of payment transactions (especially credit card payments) is a typical activity of the so-called acquirer . This stands between the retailer accepting the card payment and the company ( issuer ) issuing the card . The acquirer settles the card payments with the issuer (e.g. the buyer's house bank ) and transfers his sales to the retailer.

Money transfer business

In accordance with Section 1 Paragraph 1 Clause 2 No. 6 ZAG, the financial transfer business involves services in which, without setting up a payment account in the name of a payer or a payee, an amount of money from the payer is used solely for the purpose of transmitting a corresponding amount to the payee or to a other payment service providers acting on behalf of the payee or where the amount of money is accepted on behalf of the payee and made available to him.

Just as with the payment business, the money transfer business transfers an amount of money. The peculiarity of the financial transfer business, however, is that no payment account (within the meaning of Section 1 (17) ZAG) is used for the transfer. The service provider only accepts an amount of money (in cash, by transfer or in any other way) in order to forward a corresponding amount. The forwarding takes place either to the payee himself or to a service provider acting on behalf of the payee.

The money transfer business is mainly carried out by the classic "money remittance agencies" such as Western Union or MoneyGram . However, online brokerage portals that accept amounts of money from customers for forwarding can also be covered by the regulation.

Permission requirement

The provision of payment services is subject to approval. Pursuant to Section 10 (1) ZAG, anyone who wants to provide payment services on a commercial basis or to an extent that requires business operations in Germany as a payment institution ( Section 1 (1) No. 1 ZAG) must apply for a permit to provide payment services . CRR credit institutions ( section 1 (3d ) sentence 1 KWG ) or e-money institutions (section 1 (1) no.2 ZAG) can offer payment services on the basis of their authorization in accordance with section 32 (1) KWG or section 11 (1) Provide ZAG.

When applying for a permit in accordance with Section 10 (1) ZAG, certain documents must be submitted to BaFin (Section 10 (2) ZAG). These are:

As soon as BaFin has received all the documents needed to submit an application, a decision will be issued within three months (Section 10 (3) ZAG). However, BaFin regularly requests additional documents, so that the start of the three-month decision period is delayed.

literature

  • Gustav Meyer zu Schwabedissen / Barbara Dörner / Bénédict Schenkel: Permission to provide payment services. RWS Verlag Kommunikationforum GmbH, Cologne 2014, ISBN 978-3-8145-0381-3 .

Web links

Individual evidence

  1. ↑ Directive (EU) 2015/2366
  2. ↑ Directive 2007/64 / EC
  3. ↑ BGH, judgment of June 18, 2019, Az .: XI ZR 768/17 = NJW 2019, 3771