Clarifications from the ACPR regarding situations leading to authorization exemptions
ACPR, position, 20 July. 2022, n° 2022-P-01, relating to the notions of "limited network of acceptors" and "limited range of goods and services"
1. A position of the French Prudential Control and Resolution Authority (ACPR) is traditionally described as an analysis by the supervisor, "of a more specific nature" than a notice or guideline, making it possible to clarify the meaning and scope of certain regulatory provisions1.
2. The position at hand replaces an older position (position 2017-P-012) “for the purpose of taking into account market developments, as well as the Guidelines of the European Banking Authority concerning the exclusion relating to “limited networks” under PSD2 published on February 24, 2022”3. It was made public on July 20, 2022.
3. This is intended in particular to clarify the criteria for assessing exemptions from payment institution or electronic money institution authorization for the supply of means of payment used within a "network". limited number of acceptors" or for the acquisition of a "limited range of goods or services" as provided for in Articles L. 521-3, L. 525-5 and L. 525-6 of the Monetary and Financial Code4. This clarification is therefore important for market players who would like to check whether the services they provide can fall within the scope of one of these derogations.
4. It should also be noted that while this question has given rise to little case law5, several doctrinal works have been interested in it recently6. After noting that many companies benefited from such an exemption, the European Banking Authority (EBA) was mainly led to clarify these notions7, and more particularly, as we have said, by the guidelines of February 24, 2022.
Clarifications given to the concepts making it possible to benefit from an exemption
5. The supervisor stresses, as a preliminary point, that the license exemptions studied only apply to means of payment and/or electronic money used for the acquisition of non-financial goods or services (whether they either physical or digital). It concludes that, in this context, certain activities cannot benefit from an exemption from authorization: this is particularly the case of platforms for donations to charitable organizations for which the donations do not represent the payment of goods or of a department8, or crowdfunding platforms "in the form of donations or loans for which it was considered that they were content to collect funds on behalf of the beneficiaries, without the slightest acquisition of goods or services under -lying”.
6. These indications already appeared in the ACPR's position of October 25, 2017. This is also the case for many of the developments that follow.
A – Details relating to the limited range of goods and/or services
7. The ACPR states that in order to grant exemptions, the criterion of a limited range of goods and services is assessed, first, "from the angle of whether the goods or services belong to a sufficiently precise 'theme' so as not to be confused with a “universal” means of payment, that is to say of general scope”.
8. Therefore, an overly broad thematic offer, such as "marriage lists" or "birth lists" covering an extremely wide range of goods or services, or belonging to several thematic offers, cannot benefit from an exemption.
9. The supervisor then indicates that a limited range of goods and/or services must also include “functionally related goods and services”. What is it about ? The position tells us: “A functional link can be demonstrated in the presence of a specific category of goods and/or services having a common purpose”. This concept is then assessed “with regard to the connection and the complementarity of the goods and services likely to be acquired within the framework of the exemption”.
10. Illustrations are given through certain exceptions granted by the ACPR. Regarding services, this was the case for offers of carpooling, vehicle rental, meal delivery, carrying out small DIY jobs, etc. Regarding, now, the sale of goods, the position gives as an example the exemptions that may have been granted for marketplaces operating in various fields (wine, agricultural products, event ticketing, etc.). It does not matter, however, that the goods or services in question are distributed through different channels (physical and digital).
11. In all cases, the functional link in question must be described by companies in their declaration of exemption, as well as during the annual update thereof.
12. It should nevertheless be emphasized that this examination of the “functional link” is not a single criterion. Indeed, beyond this analysis, the ACPR also takes other factors into account in its assessment: the volume and value of payment transactions to be carried out using payment instruments on an annual basis , the maximum amount to be credited on the payment instruments, the maximum number of payment instruments to be issued, and finally the risks to which the user is exposed by using the payment instrument.
B – Details relating to the limited network of acceptors
13. Through its position, the ACPR states that a limited network of acceptors “may consist either exclusively of physical shops, or exclusively of online shops, or a combination of the two”. Furthermore, the type of goods and services offered in online stores need not be related to the type of goods and services offered in physical stores.
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