Payment institution
Payment institutions are companies that provide payment services on a commercial basis or to an extent that requires business operations to be set up in a commercial manner . E-money institutions are companies that conduct the e-money business.
overview
Article 1 of the Payment Services Implementation Act , the "Law on the Supervision of Payment Services " ( Payment Services Supervision Act - ZAG), provides for a specific authorization procedure and special regulations for ongoing supervision for the new category of payment institutions (non-banks that offer certain payment services) Compliance should be ensured by the Federal Financial Supervisory Authority in cooperation with the Deutsche Bundesbank . The new regulations came into force on October 31, 2009. In addition, since April 30, 2011, the ZAG has also included the regulatory requirements for e-money institutions, which had to be implemented in national law based on the requirements of the Second E-Money Directive.
An overview of the individual regulations
According to Section 1 (2a) of the ZAG, “ institutions ” as defined by the ZAG are both payment institutions and e-money institutions. Following the example of Section 1 (1b) of the Banking Act , which for the purposes of the Banking Act combines credit institutions and financial services institutions into institutions, the legislature considered it sensible to use a common category of an "institute" for payment institutions and e-money for the purposes of the ZAG - to form institutes. This concept of an institution is only tailored to the ZAG and only includes payment institutions and e-money institutions. The vast majority of the provisions of the Payment Services Supervision Act are aimed at both types of institutions.
Deposit- taking credit institutions, even if they provide payment services or carry out the e-money business, are neither payment institutions nor e-money institutions. The special regulations of the ZAG therefore do not apply to them. Deposit-taking credit institutions with a banking license do not require a separate license to provide payment services or to operate the e-money business.
Among the payment services . Listed in § 1 2 ZAG include services , including the disbursement, the direct debit , the credit transfer, the payment card, the Zahlungsauthentifizierungs-, the digitized payment and the - money transmission services .
E-money business
According to Section 1a (2) ZAG, this is the issue of e-money. According to Section 1a (3) ZAG, electronic money is defined as any monetary value stored electronically, including magnetically, in the form of a claim against the issuer , which is issued against payment of a sum of money in order to enable payment transactions within the meaning of Section 675f (3) sentence 1 of the Civil Code, and which is also accepted by natural or legal persons other than the issuer.
The term “e-money” is defined in a technically neutral manner in the Second E-Money Directive and in the national implementation. It is intended to cover all cases in which a payment service provider provides monetary units against payment in advance that can be used for payments because they are accepted as payment by third parties (see recital 7 of the Second E-Money Directive). According to the definition in the directive, electronic money within the meaning of this Act is only created in exchange for legal tender. The definition includes - as before - electronic money that is in the possession of the e-money holder on a data carrier or is stored on a server and is managed by the e-money holder via a specific payment account for e-money ( see Recital 8 of the Second Electronic Money Directive). It is always a question of the individual case and the respective e-money product whether or not a payment account is actually kept for booking e-money. E-money products are offered on the market both with and without an account. The definition of "e-money" is designed in such a way that technological innovations are not hindered and not only all e-money products already available on the market, but also products that may not be developed until the future are recorded.
Units of value which are specific as a means of payment and which are created in barter clubs , private exchange rings or other payment systems for real economic services, deliveries of goods or services are not taken into account, even if they have the same economic function as electronic money within the meaning of the directive and a comparable one from a money creation point of view Have potential. This was already regulated by the First E-Money Directive and its implementation in the KWG.
In addition to providing payment services or the e-money business, payment institutions according to Section 8 (2) ZAG and e-money institutions according to Section 8a (2) ZAG are also permitted to offer operational and closely related ancillary services . According to Section 8a (2) No. 1 ZAG, e-money institutions may also provide payment services within the meaning of Section 1 (2) ZAG, whereas payment institutions are not authorized to conduct e-money business.
Demarcation
No payment services are in accordance with § 1 para. 10 ZAG among others, the check and exchange traffic, while commercial transport of banknotes and coins, payment transactions are handled within a payment or securities settlement system, payments in connection with the operation of security systems , services provided by Technical service providers are provided that contribute to the provision of the payment services, but at no time come into possession of the amounts of money to be transmitted, payment transactions that are carried out by payment service providers among themselves for their own account or by their agents or branches among themselves for their own account, as well as payment transactions within a corporation and a banking group.
According to Section 1a (5) ZAG, no e-money transaction is a monetary value that is stored on instruments within the meaning of Section 1 (10) number 10 ZAG or that is used for payment transactions under Section 1 (10) number 11 ZAG. The first exception concerns means of payment that can only be used for purchases or the use of services in the business premises of the issuing agency. The area exception covers the case that a department store rents individual sales areas within its building to other retailers, e.g. B. for the sale of tobacco products, jewelry or other luxury items. The customer is usually not at all aware that the seller of these goods is not the department store itself, but another retailer. If the department store now issues prepaid cards on which units of value are stored that are also accepted as means of payment by other retailers within the building on the basis of corresponding framework agreements, this type of electronic money is exempt from the provisions of this Act; this law does not therefore apply to the issuance and administration of these means of payment. Depending on the situation of the case, the acceptance of such funds can, however, be regarded as a deposit transaction within the meaning of section 1 (1) sentence 2 number 1 of the German Banking Act (KWG), which is generally subject to authorization under section 32 (1) KWG and subject to the requirements of section 3 3 KWG is prohibited even without the possibility of a dispensation; if one of the factual area exceptions in paragraph 5 applies, the fictitious effect of § 2 paragraph 1a sentence 2 does not apply.
The area exception of number 1 also covers payment transactions where e-money can only be used within a limited network for a limited selection of goods or services through a framework agreement with dealers or service providers associated with the issuing body. This is, for example, e-money that is stored on customer cards, fuel cards, membership cards, travel cards, meal vouchers or vouchers for services (such as childcare vouchers or vouchers for social benefit systems to promote the goals of social legislation) and used for payment transactions (see recital 5 of the Second Electronic Money Directive). However, once the particular use of these instruments expands into a general purpose, this area exception does not apply.
Delimitation: practice
The most important practical use cases are card- or server-supported credit with which the holder can buy travel tickets from various long-distance and local passenger rail companies. The provision of travel supplies in a typical train station kiosk, which offers a limited selection of food as travel provisions in addition to tobacco, alcohol and magazines, is covered by the area exception. Shopping in supermarkets, pharmacies, restaurants and stationery stores, which can be found in larger long-distance train stations, would no longer fall under the area exception. Depending on the situation of the case, the acceptance of such funds can also be assessed as a deposit transaction within the meaning of section 1 (1) sentence 2 number 1 KWG, which is generally subject to authorization under section 32 (1) KWG and subject to the requirements of section 3 number 3 KWG is prohibited even without the possibility of dispensation. The area exception of number 2 includes payment transactions that are made using e-money, which are only used to pay for services that are processed exclusively via a telecommunications, digital or IT device. Whether there is an area exception is a question of the individual case and must be decided by the Federal Agency. The area exception is relevant if the operator of such a system provides the goods or services with additional intrinsic value and thus not only acts as an intermediary between the payment service user and the supplier of the goods or services. This is the case, for example, if the user of a mobile network or another digital network makes the payment directly to the network operator and there is therefore no direct debtor-creditor relationship between the user and the supplier (see recital 6 of the second e-money Directive).
The regulation covers, for example, digitized products ( ring tones , background images, music, etc.) and conversational therapy services via telephone or SMS, which are billed together with telephone services on the basis of prepaid credit at mobile phone providers. The so-called prepaid credit, which the customer can obtain from the various mobile phone providers on the basis of a corresponding framework agreement , may indeed meet the requirements for electronic money within the meaning of paragraph 3, but fall outside the scope of this law due to the exception under number 2 . Depending on the situation of the case, the acceptance of such funds can also be assessed as a deposit transaction within the meaning of section 1 (1) sentence 2 number 1 KWG, which is generally subject to authorization under section 32 (1) KWG and subject to the requirements of section 3 number 3 KWG is prohibited even without the possibility of dispensation.
Whether discount systems fall under the scope of e-money or under the area exception is also a question of the individual case. Exceptionally, as a locally definable discount system that offers a monetary advantage for the end customer due to its collective function, irrespective of its payment function, these do not fall within the scope of this law, even if the bonus points distributed are used as a means of payment across companies. Such programs not only serve as a means of customer acquisition and retention, but also have a payment function. If e-money is issued in the entire area of application of this law, such discount systems are no longer subject to the area exception, if only with regard to the protection of creditors. This also applies to systems in which there are acceptance points that only act as the redeeming body (without surrendering) the value units.
There is also no area exception if such bonus points are not accrued on the occasion of the purchase of goods or the payment of a service, but are issued outside of the purchase of goods or the use of a service; they remain e-money business within the meaning of this Act, even if the scope is small, the area exception does not apply. Discount systems that are mixed up in this way with the sale of electronic money will only remain permission-free in the future if they cannot be viewed as a means of payment across companies.
Payment account
Institutions may only use payment accounts if they are used exclusively for payment transactions. Institutions are not allowed to accept deposits or other repayable monies, not even on the basis of the issue of bearer or order bonds, Section 2 (1) ZAG. Credit balances on payment accounts that are held with a payment institution may not bear interest, Section 2 (2) sentence 2 ZAG. The same applies to e-money and the credit that is created through the issue of e-money, Section 2 (1a) ZAG. In addition, payment institutions are not permitted to issue electronic money, Section 1 Paragraph 1 in conjunction with V. m. § 2 ZAG. Whereas according to Section 8a (2) No. 1 ZAG, e-money institutions may also provide payment services.
Loans
According to Section 2 (3) ZAG, institutions are only permitted to grant loans in connection with the payment services specified in Section 1 (2) Nos. 3 to 5 ZAG if the following cumulative requirements are met:
- the granting of credit is a secondary activity and takes place exclusively in connection with the execution of a payment transaction,
- repayment will be made within 12 months at the latest,
- the loan is not refinanced from customer funds.
These requirements apply to e-money institutions with the proviso that the loan may not be granted from the amounts of money received and held for the issue of e-money.
capital
According to § 9 ZAG, payment institutions must have an initial capital of between 20,000 and 125,000 euros, depending on the service provided . For example, an initial capital of 20,000 euros is to be kept available for the operation of the financial transfer business. If, on the other hand, the payment institution carries out direct debits, transfers or card transactions, 125,000 euros are specified. E-money institutions, on the other hand, must have an initial capital of at least 350,000 euros under Section 9a ZAG.
In addition to initial capital, payment institutions must maintain current capital resources (Section 12 ZAG), which are calculated depending on the transaction volumes. In addition, security measures such as "ring fencing" (separation of customer funds from other funds of the payment institution) or the inclusion of insurance policies / guarantees to protect customer funds are provided, § 13 ZAG. For e-money institutions, special capital requirements apply according to § 12a ZAG.
Admission
The operation of payment services or the e-money business is only permitted if the institution has previously applied for authorization . The requirements for admission are regulated in § 8 ZAG for payment institutions and in § 8a ZAG for e-money institutions and include the following:
- solid corporate management,
- clear organizational structure,
- sound administrative and accounting procedures,
- Program of activities of the payment institution,
- Business plan with budget planning,
- Proof of initial capital,
- Qualification of the management.
If approval was granted by the BaFin, it applies to all Member States of the European Union and shall allow the payment institution concerned on the basis of services or the freedom of establishment provided anywhere in the Community payment services, provided that such services are covered by the authorization.
Further legal regulations
Section 7 of the ZAG contains a ban on discrimination , according to which rules on access to payment systems must be objective, non-discriminatory and proportionate. However, restrictions to cover certain risks, such as fulfillment risk, operational risk and entrepreneurial risk, as well as to protect the financial and operational stability of the payment system, are permitted. However, restrictions based on the status of the participating institute are not permitted.
Article 2 of the “Act for the Implementation of the Supervisory Regulations of the Payment Services Directive” provided for changes to the Banking Act. Since the previously defined giro business has significant common overlaps with the payment services of the payment institutions described in more detail in the annex of the Payment Services Directive, the giro business remained as a banking business, according to the rationale for the government draft, only insofar as this involved the implementation of cashless payment transactions for the collection of checks and bills of exchange as well as the traveler's check business. In other words, the term giro business has been deleted from Section 1 (1) sentence 2 no. KWG and replaced by the terms check and bill collection and traveler's check business .
In addition, numbers 6 and 8 have been repealed in Section 1 (1a) sentence 2 of the KWG, as, according to the requirements of the Payment Services Directive, the financial transfer and credit card business are among the payment services and can therefore be offered by payment institutions. In the course of the implementation of the Second E-Money Directive and the integration of the relevant requirements into the ZAG, the Banking Act has also been adapted again. Because e-money institutions have so far represented a special case of a credit institution, so that a KWG license was required to operate the e-money business. Due to the integration of the regulations for e-money institutions in the ZAG, the KWG legal requirements that previously regulated e-money had to be removed from the KWG.