This fact sheet deals with the question when an institution is or is not regarded as a payment service provider. In this context, the fact sheet discusses the payment services distinguished in the Financial Supervision Act (Wet op het financieel toezicht) and provides an explanation of the statutory exemptions.
What is a payment service provider?
There are three categories of payment service providers:
- institutions which are permitted to provide payment services on account of having obtained an authorisation as a bank or an electronic money institution;
- institutions having obtained specific authorisation for the provision of payment services (payment institutions);
- institutions exempted from the supervision of payment institutions (exempted payment service providers).
The scope of the Payment Services Directive is limited to payment service providers whose principal activity consists of offering payment services. In the Financial Supervision Act (Wet op het financieel toezicht), this has been provided for by stipulating that anyone ‘pursuing the business’ of a payment service provider is regarded as such. A person or an institution pursues the business of a payment service provider if it provides a payment service and that payment service is an independently identifiable activity which, moreover, does not serve solely to support one or more principal activities not being payment services.
In general, it is not easy to give a precise indication of where ‘pursuing the business of’ begins and ends. In this respect, DNB uses a strict approach; in practice, it is generally readily concluded that a payment service constitutes an ‘independently identifiable activity’.
In the case of institutions which engage largely in operations other than payment services – but which do provide payment services on a limited scale – it may be undesirable to subject the institution as a whole to supervision. Such a combination of operations may entail risks. In such cases, DNB may require that the institution’s operations regarding payment services are accommodated in a separate legal entity.
When is the provision of payment services ‘in the Netherlands’ in evidence?
The following aspects, whether or not combined, serve as indications suggesting the provision of payment services aimed at the Netherlands:
- the actual establishment of agreements for the provision of payment services with inhabitants of the Netherlands;
- the use of the Dutch language by the payment service provider;
- the payment service provider makes clear that its services are aimed at inhabitants of the Netherlands;
- the payment service provider refers to Dutch legislation and regulations or to the Dutch tax system;
- the payment service provider refers to contacts in the Netherlands;
- the payment service provider directly addresses inhabitants of the Netherlands.