The existing commercial agent exception
The supervisory aspects of PSD 1 were implemented in Germany by way of the Payment Services Supervision Act (ZAG). Section 1 sub-section 10 no. 2 of the ZAG provides that commercial agents who are authorised to negotiate or conclude contracts for goods or services on behalf of the payer or the payee do not require authorisation to process the associated payments. Unsurprisingly, various e-commerce platforms used this exception to collect payments from buyers before forwarding them to the platform sellers. This option has a number of benefits for e-commerce platforms, in particular the ability to take commission up front. Centralised payment is also much more convenient for buyers than agreeing on payment with every seller.
Existing administrative practice of BaFin
In Germany, the Federal Financial Supervisory Authority (BaFin) always interpreted this exception relatively restrictively. Ever since the much discussed ruling in the “Pizza.de v. Lieferheld” case before Cologne Regional Court in the autumn of 2011 (ref. 81 O 91 / 11), it has been accepted that the commercial agent exception should not be applied to e-commerce platforms. Right from the start, BaFin was guided by the wording of the regulation and therefore required actual authorisation to negotiate or conclude the sale or purchase of goods or services. This is not generally the case with e-commerce platforms, as the parties themselves decide whether an agreement is formed and there are also normally no actual contract negotiations. Application of the commercial agent exception is nonetheless possible in cases where a business model meets the criteria set out by BaFin with regard to platforms.
The new commercial agent exception under PSD 2
The European Commission makes it clear in recital no. 11 to the trialogue version of the PSD 2 proposal dated 5 May 2012 that the commercial agent exception has been applied very differently in the various member states, and that it has been possible in particular for e-commerce platforms to act as intermediary for both parties in some member states, even without having any actual authority to negotiate. It has therefore now been clarified that this was not the purpose of the exception. The new commercial agent exception now provides that the agent must negotiate or enter into a contract based on an explicit agreement with the payer (buyer) or the payee (seller) and must act on behalf of and in the interests of one of these parties.
Accordingly, and in line with BaFin’s existing administrative practice, PSD 2 now expressly states that an e-commerce platform wishing to invoke the commercial agent exception must clearly be in one of the two camps. The fact that this must be based on an agreement is another new feature. It is doubtful whether standard terms and conditions will suffice to establish such an agreement, but it remains to be seen how BaFin will interpret this new requirement.
The amendment of the commercial agent exception is likely to have relatively little impact in Germany because BaFin has already been applying a very narrow interpretation of the provision to e-commerce platforms. Whether the requirements of the commercial agent exception are met with regard to a given e-commerce platform will need to be carefully reviewed and duly justified. Provided that a business model genuinely differs from a standard e-commerce platform which brings together buyers and sellers of goods and consumer products, application of the commercial agent exception remains an option, particularly if the platform operator maintains close contact with the party it represents and genuinely influences pricing.
In all other cases, the situation remains difficult for operators of e-commerce platforms because there are no other statutory exceptions available. The fact that the existing standard factoring model, whereby the platform operator has the seller’s claims assigned to it, is increasingly seen as problematic by BaFin must also be considered. Drop shipping or partnering with a bank or payment institute remain an option if an e-commerce platform wishes to continue carrying out payment processing.