Provision of payment services to residents of non-EU countries

We advised payment service providers in:

the permissible manner and scope
of providing payment services
to residents of non-EU countries

Neither the provisions of the Polish Payment Services Act (UUP) nor those of the Directive of November 25, 2015, on payment services in the internal market (PSD2) specify what is meant by the provision of a payment service within the territory of the Republic of Poland.

In practice, two concepts are invoked:

1. the concept of characteristic performance (in simple terms, it assumes that a service is provided in a given territory if the characteristic performance takes place there);
2. the initiative concept (in simple terms, this assumes that a service is provided in a given territory if the provider actively directs it to that country) – based on this concept, for example, a service will not be provided in a territory outside the EU if a customer or contractor from outside the EU, on their own exclusive initiative, requests a service from a given entity in the EU/PL (so-called “reverse solicitation”).
   The concept of initiative is reflected in a number of EU and Polish legal acts (e.g., MiFID II, MiFIR, MICA).

Furthermore, in February 2025, ESMA issued guidelines regarding the circumstances under which a third-country firm is deemed to be soliciting clients established or located in the Union, as well as supervisory practices aimed at detecting circumvention of the exemption regarding reverse solicitation under the Regulation on Markets in Crypto-Assets (MiCA) and preventing such circumvention, 02/26/2025 ESMA35 1872330276-2030 (“ESMA Guidelines”). Of course, the ESMA Guidelines do not constitute a direct source of law and, furthermore, were issued under MiCA; therefore, they do not apply to payment services. Nevertheless, they reflect the generally presented working approach of EU authorities and supervisory bodies regarding the principles governing reverse solicitation.

DLK’s advisory included:

• a legal analysis of the admissibility of providing payment services to residents of non-EU countries
• the preparation of a legal opinion, including practical recommendations regarding the permissible scope and manner of providing payment services to residents of non-EU countries