- Question ID
-
2023_6736
- Legal act
- Directive 2009/110/EC (EMD)
- Topic
- Not applicable
- Article
-
2 and 3
- Paragraph
-
2 and 4
- COM Delegated or Implementing Acts/RTS/ITS/GLs/Recommendations
- Not applicable
- Article/Paragraph
-
Art 2 and 3, Paragraph 2 and 4 respectively
- Name of institution / submitter
-
francesca provini
- Country of incorporation / residence
-
italy
- Type of submitter
-
Competent authority
- Subject matter
-
Identify when EMD2 needs to be applied to vouchers/gift cards issued by an electronic money institution.
- Question
-
Do vouchers/gift cards issued by an electronic money institution (EMI) to top-up an e-money account (managed by the EMI itself) in order to purchase on an e-commerce platform: i) goods and services sold directly by companies belonging to the same corporate group of the EMI (thus falling out of the scope of PSD2, encompassing the exemption provided for intra-group transactions in Article 3(1)(n) of the PSD2); ii) goods and services of third-party merchants, have to be qualified as e-money at the time of issuing (i.e.sale) or - given the possible indefinite use of the funds - they acquire that status only at the moment they are used to purchase goods and services from third-party merchants on the e-commerce platform?
- Background on the question
-
An EMI, established in a EU Member State, issues vouchers/gift cards (hereafter GCs) to top-up an e-money account that can be used to purchase goods and services on an e-commerce platform operated by a company belonging to the same corporate group. According to the intermediary, at the time of sale (both on-line or in physical stores located in the host member state) the GCs would not qualify as e-money (therefore with no application of the safeguarding and prudential requirements) until the moment they are loaded into the e-money account, opened by the EMI for the platform’s customer. The use of said account for the purchase of goods/services sold (through the platform) by affiliated merchants (outside the EMI’s group) would be qualified as provision of payment services.
The home competent authority has informally communicated that it generally shares the EMI's view, considering that the funds could be used in two ways:
- by applying the exemption provided for intra-group transactions in Article 3(1)(n) of the PSD2 for purchasing goods and services sold by companies belonging to the same corporate group of the EMI (the funds would in fact pass from the availability of the EMI to that of a company, both belonging to the same corporate group);
- for payment transactions from the EMI to a merchant (outside the group), in case of purchase of goods or services sold by the merchant itself.
It should be clarified whether the GCs should be considered as an e-money instrument from the moment of their sale or if the indefinite future use of the funds (for payment transactions that could either be in or out of the scope of PSD2) may lead to the GCs being considered outside the scope of EMD2 until they are loaded on an e-money account and used for payment services within the scope of PSD2.
- Submission date
- Status
-
Question under review
- Answer prepared by
-
Answer prepared by the European Commission because it is a matter of interpretation of Union law.