BT-REQ-3972 PSD3 Impacts v6(without crop marks) RL - Flipbook - Page 9
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HL | PSD3 Impacts
What is the impact?
The Council’s drafting makes it clear that the
existence of a MiCAR licence in itself is insufficient
to enable a CASP to operate as a PSP and an
additional application for authorisation is required.
In several cases, the elements of the application
required for this are required to “build on” the
information provided for MiCAR purposes.
With the publication of the Council Text, we
have the first concrete position adopted by an
EU legislative body that being licensed as a CASP
is not sufficient to qualify as a PSP and that a
further (albeit hopefully quickly determined)
authorisation process is required.
That the payments and cryptoassets regimes overlap
is made clear in Recitals 90 and 93 of MiCAR, which
state that:
However, even if the final text moves away from
dual authorisation, the intention of the Council
Text is that payments involving EMTs should
merit the same treatment as payments in
other forms.
certain CASP activities (e.g. providing custody
and administration of cryptoassets on behalf of
clients, placing cryptoassets, and transferring
services for cryptoassets on behalf of clients)
might overlap with payment services as defined
in PSD2; and
It is to be welcomed that the Council proposes
to exempt CASPs from having to comply with
confirmation of payee requirements or provide
access to TPPs; however, the application of the
PSR regime more generally means CASPs will
need to get to grips with:
many cryptoasset service providers offer transfer
services that may (depending on the precise
features of the services) mean services could
fall under the definition of payment services
in PSD2, such that those transfers should be
provided by an entity authorised to provide
such payment services.
the liability regimes for impersonation fraud,
unauthorised and defective transactions;
However, the precise nature of the overlap has
been unclear.
The EBA has recently issued guidance to NCAs
recommending “no action” be taken in relation
to CASPs engaging in payment services without
a payments licence, pending confirmation of the
approach the legislators want to take.
SCA;
notice requirements for variation and
termination of framework agreements; and
payments complaints handling timelines.
This will necessarily mean technological build
and changes to processes and procedures, and
potential divergence among CASPs seeking to
provide payments services in EMTs between
those that adopt a highest common denominator
approach for all services and those that observe
the conduct requirements under MiCAR and the
PSR separately.
