1. Background and entry into force
The European Banking Authority (EBA) has issued and published guidelines on the limited network exclusion under PSD II (Payment Services Directive II) in conjunction with the European Regulation establishing the EBA. The EBA guidelines have been in effect since 01.06.2022.
The EBA Guidelines on the limited network exclusion aim to clarify certain points of their application. In particular
- whether a network of service providers or a set of goods and services qualifies as "limited" (and thus falls under the exemption),
- the use of payment instruments within limited networks,
- the provision of the exempted services by regulated institutions, and
- the submission of reports to the national competent authority and entry into the registers (FMA and EBA).
2. Limited networks
Certain services based on payment instruments that can only be used in a limited manner are excluded from the scope of PSD II - and thus also from ZaDiG 2018, which implements PSD II (Art 3 lit k PSD II, § 3 Abs 3 Z 11 ZaDiG 2018). This applies to payment instruments that
a) are intended for the purchase of goods or services only at the issuer's premises (online-business is not included) or within a limited network of service providers under a business agreement with a professional issuer (issuer), or
b) can only be used to purchase a very limited range of goods or services, or
c) are valid only in Austria and are intended only for specific social or tax purposes for the purchase of certain goods or services from providers who have entered into a commercial agreement with the issuer.
These are e.g. fuel cards, travel cards, customer cards, parking tickets, membership cards or voucher cards (e.g. meal vouchers).
According to EBA guidelines, indicators or criteria for limitation are, for example, limited volume and value of payment transactions, maximum amount of credit or limited number of payment instruments issued.
According to EBA guidelines, the limitation of the network must be done by technical and contractual restrictions.
3. Austria, notification to the FMA
The Financial Market Authority (FMA) as the competent national supervisory authority in Austria has issued a compliance statement on the EBA Guidelines. I.e. that it will fully comply with and apply these guidelines.
The FMA must be notified of services from limited networks pursuant to § 3 (11) lit (a) or (b) ZaDiG 2018 if the threshold value of payment transactions with a total value of EUR 1 million is exceeded in the previous year (§ 3 (4) ZaDiG 2018). Also, issuers of such payment instruments of limited networks that have already submitted a notification to the FMA in the past must now notify the FMA of this notification again by 01.09.2022, taking the new EBA guidelines into account. The notification must describe the goods or services offered and specify the exclusion for the respective limited network (§ 3 (11) lit (a) or (b) ZaDiG 2018). The information submitted with the notification will be included in the FMA's company database (company data, exception facts, purpose of the issued payment instrument).
The FMA has published information and the current notification forms on its website: www.fma.gv.at/finanzdienstleister/zahlungsinstitute/ausgenommene-dienstleistungen-vom-zadig-2018/.