Identifying the customer of a PISP

In the case described by the submitter, to determine whether the payment initiation service provider (PISP) has a business relationship with the payer, the PISP should refer to paragraphs 4.7 and 18.8 a) of the ML/TF risk factor Guidelines (EBA/GL/2021/02) (the ‘guidelines’). Pursuant to paragraph 18.8 a) of the guidelines, in the case where the PISP has a business relationship in the meaning of Article 3(13) of Directive (EU) 2015/849 (the ‘AMLD’) with the payee for offering payment initiation services, and the payer only uses the respective PISP to initiate a single or one-off transaction to the payee, the PISPs’ customer is the payee, and not the payer. This is without prejudice to Article 11 of the AMLD and Title I of the guidelines, especially with regards to occasional transactions. Paragraph 4.7 b) (which is part of Title I of the guidelines) indicates that it is firms’ responsibility to set out in their policies and procedures what constitutes an occasional transaction in the context of their business and at what point a series of single or one-off transactions amounts to a business relationship, rather than an occasional transaction. To do so, firms should take into consideration factors such as the frequency and regularity with which the customer returns for occasional transactions, and the extent to which the relationship is expected to have, or appears to have, an element of duration. This means that, where the PISP has a business relationship with the payee and the payer only uses the PISP to initiate a single or one-off transaction, then in principle the PISP does not have a business relationship with the payer. However, if the payer repeatedly returns for single or one-off transactions, then these transactions may at some point amount to a business relationship. To determine whether this is the case, the frequency and regularity with which the customer returns for single or one-off transactions are key factors that should be taken into consideration by the PISP. Consequently, in the case described by the submitter, the assessment of the existence of a business relationship between the PISP and the payer should be affected by the frequency and regularity with which the payer uses the PISP’s services. It is the PISP’s responsibility to set out in its policies and procedures the way in which the frequency and regularity with which the payer returns for single or one-off transactions should affect its assessment of the existence of a business relationship with the payer, taking into account factors such as the specificities of its business, the level of ML/TF risks associated with the transactions initiated by the payer, and provisions from applicable national legislation.