Question ID
2021_6243
Legal act
Directive (EU) 2015/849 (AMLD)
Topic
Customer Due Diligence
Article
3
Paragraph
13
Subparagraph
N/A
COM Delegated or Implementing Acts/RTS/ITS/GLs/Recommendations
EBA/GL/2021/02 - Guidelines on customer due diligence and the factors institutions should consider when assessing the ML /TF risk associated with individual business relationships and occasional transactions under Articles 17 and 18(4) of AMLD
Article/Paragraph
18.8 a)
Type of submitter
Law firm
Subject matter
Identifying the customer of a collecting PSP
Question

Does the fact that a collecting PSP (e.g. one providing the payment service acquiring of payment transactions to the payee) is involved in the flow of funds between the payer and the payee mean that the same PSP, if also providing merchant-facing payment initiation services, would have to assess the payer using PIS to be its customer in a different way than it would have to do if it were to provide PIS only (i.e. by way of deviation from what would otherwise apply according to Guideline 18.8 a of EBA/GL/2021/02))?

Background on the question

Guideline 18.8 a) of the EBA ML/TF risk factor Guidelines (EBA/GL/2021/02) provides guidance on how PISPs should determine who their customers are. In the Guideline, it is stated that:

The customer is: a) For PISPs: the customer is the natural or legal person who holds the payment account and requests the initiation of a payment order from that account. In the specific case where the PISP has a business relationship in the meaning of Article 3(13) of Directive (EU) 2015/849 with the payee for offering payment initiation services, and not with the payer, and the payer uses the respective PISP to initiate a single or one-off transaction to the respective payee, the PISPs’ customer for the purpose of these Guidelines is the payee, and not the payer. This is without prejudice to Article 11 of Directive (EU) 2015/849 and Title I of these guidelines especially with regards to occasional transactions, and the PISPs’ obligations under Directive (EU) 2015/2366 and other applicable EU legislation.

 

This Guideline was amended as part of the development of the Guidelines and the final Guideline was drafted in a manner intended to ensure adequate proportionality and fair recognition of the fact that there are different business models applied by PISPs, not all of which include treating payers as customers (see p. 10 of the EBA’s final report to the ML/TF risk factor Guidelines).

Submission date
Final publishing date
Final answer

In the case described by the submitter, to determine whether a payment service provider (PSP) has a business relationship with the payer, the PSP should refer to paragraph 18.8 a) of the ML/TF risk factor Guidelines (EBA/GL/2021/02) (the ‘guidelines’).

Pursuant to paragraph 18.8 a) of the guidelines, in the specific case where a PSP acts as payment initiation service provider (PISP) and has a business relationship, within the meaning of Article 3(13) of Directive (EU) 2015/849 (the ‘AMLD’), with the payee for the provision of payment initiation services, and the payer only uses the PSP to initiate a single or one-off transaction to the payee, then the customer is the payee and not the payer. This is, however, without prejudice to Article 11 of the AMLD and Title I of the guidelines, especially with regards to occasional transactions.

The fact that the PSP also provides other payment services to the payee is not mentioned in the guidelines as a criterion that should be taken into account to assess whether the PSP has a business relationship with the payer in relation to the payment initiation services provided by the PSP, provided that these other services do not affect the legal qualification of the payment initiation services offered to the payee. It is the PSP’s responsibility to assess whether the service provided to the payer qualifies as payment initiation services or as a different payment service.

Therefore, where a PSP is in the specific case described in paragraph 18.8 a) of the guidelines, then the PSP should conclude that it has a business relationship with the payee and not with the payer in relation to the provision of the payment initiation services. This conclusion should not be affected by the fact that the PSP also provides other payment services (such as acquiring of payment transactions) to the payee.

Status
Final Q&A
Answer prepared by
Answer prepared by the EBA.

Disclaimer

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