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EBA Opinion on Passport Notifications for Agents and Distributors under PSD2, EMD2, and AMLD

Core Content

This EBA opinion addresses the legal interpretation of the concept of "establishment" in the context of passport notifications for payment institutions (PIs) and electronic money institutions (EMIs) using agents or distributors in another Member State (MS). The opinion aims to provide clarity to competent authorities (CAs) and PIs/EMIs on how to determine whether such activities fall under the right of establishment or the free provision of services, thereby contributing to supervisory convergence in the EU.

Legal Basis

• The EBA's authority to issue this opinion is based on Articles 29(1)(a) and 34(1) of Regulation (EU) No 1093/2010.
• The opinion is intended for CAs but is also useful for PIs and EMIs operating cross-border within the EU.
• It was adopted by the Board of Supervisors in accordance with Article 14(5) of the EBA's Rules of Procedure.

Definitions

• Agent: A person acting on behalf of a PI or EMI in providing payment services, as defined in Article 4(38) of PSD2.
• Distributor: A person acting on behalf of an EMI to distribute and/or redeem electronic money, as defined in Article 3(4) of EMD2.

General Criteria for Establishing an 'Establishment'

• The determination of whether an activity constitutes an establishment depends on the degree of stability and effective exercise of activities in the host MS.
• According to CJEU case law, an infrastructure or physical presence in the host MS is a key factor.
• The presence of an office managed by an independent person acting on a permanent basis may also be considered an establishment.
• Temporary or occasional activities fall under the free provision of services.
• The specific nature of the service and its regularity, periodicity, or continuity are crucial for the assessment.

Application to Agents and Distributors

• CAs should consider the following criteria when assessing the nature of the passport notification:
  1. Whether the agent/distributor is engaged for occasional or regular/continuous tasks.
  2. The overall duration of the contractual relationship.
  3. Whether the activities allow customers in the host MS to benefit from the services.
• A case-by-case assessment is necessary, as no single criterion is sufficient to determine the nature of the passport.
• A network of agents/distributors may indicate a stable or permanent presence, even if individual agents/distributors do not meet the criteria for establishment.
• An agent or distributor that acts on behalf of multiple PIs/EMIs may still be considered an establishment for each principal.

Implications under PSD2 and EMD2

• If an agent is considered an establishment, the PI/EMI may face:
  • Reporting obligations to the host CA.
  • Requirement to appoint a central contact point in the host MS, if national law mandates it.
• These obligations apply only to agents, not distributors.
• Some obligations, such as passport notification and reporting, apply regardless of whether the activity is under the right of establishment or free provision of services.

Implications under AMLD

• If an agent or distributor is considered an establishment, the PI/EMI must comply with the AML/CFT rules of the host MS.
• Distributors and agents themselves are not subject to AMLD obligations unless they are considered establishments.
• PIs/EMIs retain full responsibility for AML/CFT compliance, even if they outsource parts of the process to agents or distributors.
• National laws may require the appointment of a central contact point to ensure compliance and facilitate supervision.

Conclusion

• The EBA emphasizes that the home CA is primarily responsible for assessing the nature of the passport application and communicating this to the host CA.
• The host CA may raise concerns, but the home CA must provide the necessary information.
• The legal framework requires a holistic and case-by-case approach to determine the nature of the passport notification, considering the specific facts of each situation.

This opinion provides guidance for CAs and PIs/EMIs in aligning their practices with EU law and ensuring supervisory consistency across Member States.