PSD2 exemption for cash withdrawals

We advised the operator of an international ATM network on the following project:

ESTABLISHMENT OF MARKET MODELS FOR CASH WITHDRAWALS FROM PSD2-EXEMPT ATMS

Both PSD1 and PSD2 exclude ATM cash withdrawal services from the scope of payment services legislation. It means that there is no need for a permit or ongoing supervision. The exemption depends on a number of specific criteria, including acting for the benefit of the issuer of the payment instrument, not providing other payment services, etc. Although PSD2 is a full harmonization directive, the implementation of the PSD2 regulation into national orders varies widely, narrowing or broadening the scope of the exemption. Furthermore, over decades of payment cards, there have been a great many models of collaboration between the various card market players, where differences are important but not obvious. The number of entities between the card issuer and the ATM operator may be relatively significant. For an operator of a global ATM network that supports cash withdrawals in a variety of models, we have defined specific rules for the use of the exemption for ATM cash withdrawals in the European Union.

The advisory services of DLK Legal included:

• proper definition of the regulatory roles of all entities involved in the withdrawal process
• clarification of the criterion of acting “for” the publisher of the instrument
• determination of the consequences for the operator due to incorrect implementation of the exemption by the Member State under primary EU law, taking into account the traditional and recent case law of the Court of Justice of the European Union (CJEU) in this area