No License Required for the Provision of Payment Services by Commercial Agents

In principle, pursuant to Section 10 (1) ZAG, a license from BaFin is required if payment services are to be provided commercially in Germany. However, Section 2 ZAG provides for exceptions to the general licensing requirement for certain constellations that the legislator has deemed not subject to supervision. A very relevant exemption in the area of payment services is Section 2 (1) No. 2 ZAG. This provision stipulates that payment transactions do not qualify as payment services within the meaning of the ZAG if they are carried out through a central settlement facility or a commercial agent who is contractually authorized to negotiate or conclude the purchase or sale of goods or services only on behalf of either the payer or the payee. If these conditions are met, the activities of the central settlement facility or commercial agent do not qualify as payment services and therefore cannot trigger the licensing requirement under Section 10 (1) ZAG, which relates exclusively to the provision of payment services. According to the established administrative practice of BaFin, in order to benefit from the commercial agent exemption, it is necessary to have a genuine mandate to negotiate or an actual power of attorney to conclude the contract underlying the payment. The commercial agent must therefore either be authorized to negotiate the contract details to such an extent that the subsequent contractual partner only needs to declare acceptance, or have actual power of attorney for the conclusion from one of the parties to the contract to be concluded.

Commercial Agents May Only Act on Behalf of the Payer or the Payee

The wording of Section 2 (1) No. 2 ZAG makes it unambiguously clear that only a commercial agent or central settlement facility who is exclusively active on one side of the underlying transaction can benefit from the exception. The commercial agent must therefore act either for the payer or the payee in the negotiation or conclusion of the contract leading to the payment. This requirement was not explicitly included in the previous regulation governing the commercial agent exception, which is why it remained unclear, at least according to the wording of the law, whether the exception could also apply in situations where someone represents or acts on behalf of both parties to the underlying transaction. BaFin also requires that, in order to invoke the exception, the commercial agent must actually make use of his mandate to negotiate or conclude the contract, meaning that the mandate must not merely be granted on paper. If, for example, the general terms and conditions of an online platform merely stipulate that the platform operator acts as a representative for a specific platform user, but the specific content of the contractual declaration to be made is already specified by the represented party, this is not sufficient to benefit from the commercial agent exception.

Not Only Commercial Agents Under the German Commercial Code (HGB) May Invoke Section 2 (1) No. 2 ZAG

The sectoral exemption for commercial agents under Section 2 (1) No. 2 ZAG is based on the European law requirement of Article 3(b) of the second Payment Services Directive (EU) 2015/2366 (PSD2). Taking into account the principle of interpretation of the ZAG under European law, the permissible group of addressees of the commercial agent exemption may therefore not be defined by national law. The German definition of commercial agent under Section 84 (1) of the German Commercial Code (HGB) is therefore not relevant for understanding the definition of commercial agent under Section 2 (1) No. 2 ZAG, simple representatives of the payer or the payee may therefore also be considered commercial agents within the meaning of the commercial agent exemption. The term “central settlement facility” is found exclusively in Section 2 (1) No. 2 ZAG, but not in Art. 3 lit. k) PSD2. The German legislator has thus deviated from its implementation obligation in this respect when transposing the provisions of PSD2. In principle, however, national legislators may only regulate more strictly than required by the EU when implementing European directives. In this respect, it will be necessary to require that central settlement facilities at least meet the requirements for commercial agents in order to be able to claim the exemption.

The lawyer responsible for advising on licensing requirements under the ZAG and on the use of exemptions for payment services in our law firm is Attorney Dr. Lutz Auffenberg, LL.M. (London).