E-6/20 Pintail AG v Finanzmarktaufsicht

EFTA-case

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Deadlines: Motivation ministry:    1 juli 2020
Written observations:                    17 August 2020

Keywords : payment services; licence; business activity

Subject :

-           Directive 2007/46/EC of the European Parliament and the Council of 13 November 2007 on payment services;

-           Directive 2009/110/EC of the European Parliament and of the Council of 16 September 2009 on the taking up, pursuit and prudential supervision of the business of electronic money institutions;

Facts of the case:

The complainant is a public limited company (Aktiengesellschaft) under Liechtenstein law. The complainant was issued with a licence to operate as an electronic money institution by the Financial Market Authority (FMA) on 2 December 2016. Business activities commenced with the consent of the FMA at the end of November 2017. By order of 26 March 2020, now subject to the present challenge, the FMA determined that its licence as an electronic money institution lapsed in full on 1 January 2020. Licences lapse if business activities are no longer undertaken for a period of at least 6 months. The complainant shut down its operative IT systems on 30 June 2019, for which reason, in the absence of functioning systems, no further electronic money services could be provided until at least 31 December 2019. The appeal brought by the complainant is directed against this decision, leading to the request that the order challenged be annulled. In the alternative, the request is made that the order is annulled and the matter referred back to the FMA. The “shut down” of the systems must not be interpreted as the “abandonment” of the entire infrastructure, rather the IT systems were “decommissioned” for a short, foreseeable period, in order to minimise the monthly costs arising in that connection. In the second half of 2019, marketing and cooperation agreements were negotiated and, ultimately, also signed.

Request for an advisory opinion:

1. Must the terms “activity” and “business activity”, as they are used in Directives 2009/110/EC and 2007/64/EC (respectively (EU) 2015/2366), be understood as synonyms; if not, what is the difference?

2. Must “activity” or “business activity” of an authorised electronic money institution within the meaning of Directive 2009/110/EC be understood as meaning the issuance of electronic money, offering to issue electronic money or at least the activities of an electronic money institution that are subject to authorisation (strict interpretation) or does a sufficiently tangible business action also already suffice, for example, the conduct of other business activities, as is provided for in Article 6(1)(e) of Directive 2009/110/EC, to the extent that this action is directed, in accordance with objective criteria and genuinely, towards the issuance of electronic money and not completely trivial (broad interpretation)? Should a broad interpretation be required: What is the difference between a business action of that kind and purely preparatory actions?

3. Using which criteria must the term of ceasing to engage in business, as is provided for in Article 12(1)(a) of Directive 2007/64/EC (respectively, Article 13(1)(a) of Directive (EU) 2015/2366), be interpreted?

4. Does it make a difference in the interpretation whether the Member State has implemented Article 12(1)(a) of Directive 2007/64/EC (respectively, Article 13(1)(a) of Directive (EU) 2015/2366) in such a way that following 6 months of inactivity the authorisation is withdrawn by active conduct on the part of the authorities or in a such a way that the lapse arises by operation of law (ex lege) and the authority merely determines this afterwards?

Cited (recent) case-law:

Policy Area: FIN; EZK