Compliance of fees charged with legal requirements

We advised the leading Polish retail network on the following project:

COMPLIANCE OF THE FEES CHARGED BY THE ACCEPTOR WITH THE PROVISIONS OF THE PAYMENT SERVICES ACT

• On November 5, 2021, the Payment Services Amendment Act of August 11, 2021 came into force, introducing, among other things:
  • the obligation of acceptors to accept payment in cash in relations with clients (Article 59ea(1) of the Payment Services Act) – however, this requirement does not apply to activities performed online (Article 59ea(2)(1) of the Payment Services Act),
  • prohibition on imposing and charging fees for cash payments and on differentiating the price depending on the form of payment by acceptors (Article 59ea(3) of the Payment Services Act).
• Notwithstanding of the above, under Article 37a(3) of the Payment Services Act, the payee (including the acceptor), is not entitled to charge surcharge fees in connection with the use of payment instruments governed by Regulation 2015/751 (i.e. Interchange Fee Regulation (IFR)).
• In the practice of trading, online stores accepting non-cash payments have the status of acceptors (recipients) within the meaning of the provisions of the Payment Services Act. In such case, the restrictions on the design and collection of certain payment acceptance fees apply to the said online stores. With respect to the increasingly complex and sophisticated sales models, it is not always obvious whether a fee is indeed collected as payment (in cash or using a specific payment instrument). In view of the new regulations coming into force, we performed for our client, a leading retail chain offering goods online, a legal assessment of the planned fee model in terms of its compliance with legal requirements.

The advisory services of DLK Legal included:

• legal analysis of the planned fees for the model of concluding cash on delivery (“COD”) contracts, in terms of their compliance with the provisions of the Payment Services Act,
• preparation of a legal opinion on whether it is permissible for the acceptor to charge fees, including practical recommendations.