On Wednesday, 24 April, the European Banking Authority (EBA) published an Opinion on the nature of passport notifications from payment institutions or electronic money institutions using agents and distributors located in another Member State.
The Opinion clarifies the criteria that the host Member State’s competent national authority should use for determining when the use of an agent or distributor falls under the right of establishment or the freedom to provide services when the competent authority examines passport notifications submitted by the competent national authority of the payment institution or electronic money institution's home Member State.
The EBA stipulates that establishment in a host Member State entails certain additional legal obligations in relation to the freedom to provide services and has consequences for the sharing of powers to supervise activities between the host Member State’s competent authorities and those of the home State.
The EBA particularly indicates that, if the agent or distributor has been authorised to perform a specific task on behalf of the payment institution or the electronic money institution on an occasional basis, this may indicate that these services fall under the freedom to provide services.
If, on the other hand, it has been mandated to provide services on behalf of the institution on a regular or continuous basis, the services will instead be covered by the right of establishment.
The total length of the contractual relationship or arrangements between the institutions and the agents or distributors and the question as to whether or not the activities carried out enable customers in the host Member State to benefit from the services offered by the institution in the host Member State are other factors to be taken into account. While the EBA provides guidance, it specifies that assessments must be made on a case-by-case basis. (Original version in French by Marion Fontana)