Our Payments team in the UK and Germany has recently considered how sharing economy platform providers can fall within the scope of EU payments regulation.
Broadly, payments regulation (including anti-money laundering rules) could apply wherever money is transferred from payer to payee by way of an intermediary. Many platform providers will occupy the ‘payment intermediary’ role and, depending on the exact nature of the arrangements and the funds flow, could fall within the scope of the Payment Services Directive (and soon within the new, amended provisions of PSD2).
PSD exempts ‘commercial agents’ from the regulatory regime, an exemption that is often relied on by e-commerce platforms. PSD2 will narrow the application of this exemption, in a move specifically targeting e-commerce and platform providers, by excluding arrangements where the ‘agent’ acts for both payer and payee. As a result of the new rules in PSD2 (which mirror the stricter interpretation and application already seen in jurisdictions such as Germany and France), most platform providers will need to consider whether their business activities require authorisation, and the extent to which payment regulation applies.