PSD3/PSR narrow the scope of the commercial agent exemption. Find out which marketplaces and platforms will require a license and how to prepare for the new regime.
A new legal framework for digitally integrated models – e-commerce, marketplaces, platforms, and many others
In 2023, the European Commission presented a proposal for a new Payment Services Directive PSD3 and the related Payment Services Regulation (PSR). This is the most significant revision of the legal framework for electronic payments in the last decade. The changes do not only affect traditional payment service providers (banks, fintech companies, electronic money providers), but also, very significantly, online platforms and marketplaces that combine sales, logistics, shipping, and payments into a single integrated model.
Until now, these platforms have often operated outside the strict licensing regime, as they relied on the application of the so-called commercial agent exemption under Article 3(b) of the PSD2 Directive. The PSD3 proposal substantially restricts and clarifies this exemption—which means that many current platforms may now find themselves in the position of a payment institution, with the obligation to apply for a license to provide payment services as a payment institution and be subject to stricter regulation.
2. Current Legal Framework: Exemption for Commercial Agents Under PSD2
2.1 Basic rule
According to Article 3(b) of the PSD2 Directive, the provisions on payment services do not apply to persons acting as commercial agents authorized to negotiate or conclude the sale or purchase of goods or services on behalf of the buyer or seller. The literal wording of this exemption is that PSD2 does not apply to: payment transactions between a payer and a payee through a commercial agent authorized by agreement to negotiate or conclude the sale or purchase of goods or services on behalf of only the payer or only the payee;.
The essence of this exemption was to allow ordinary commercial intermediaries (e.g., real estate agents, travel agencies, or auction portals) to receive and transmit payments within the scope of their mandate without the need for a payment institution license. Over the years, however, this exemption began to be widely used in the context of digital marketplaces—that is, platforms that connect sellers and customers while also processing payments.
2.2 The Problem of Bilateral Representation
A key limitation of the exemption under PSD2 is that a commercial agent may act only on behalf of one party—either the buyer or the seller. If the platform effectively acts on behalf of both (e.g., facilitates contract conclusion, manages payments, handles complaints and refunds), the exemption should not apply.
In practice, however, most large marketplaces (especially those that combine sales, logistics, and shipping) act as at least partial representatives of both parties:
- toward the customer, they determine the terms of purchase, prices, and payment methods,
- toward the seller, they manage the delivery process and payment receipt.
Such models cannot be considered purely “agency” relationships within the meaning of PSD2.
3. Opinions of the European Banking Authority (EBA)
The European Banking Authority has repeatedly commented on the interpretation of this exemption within its Single Rulebook Q&A . Of particular importance is the response EBA Q&A No. 2020_5355 from 2021.
3.1 EBA Conclusion: The Exemption Is Narrow and Requires Actual Representation of One Party
According to the EBA, the exemption applies only if the platform acts exclusively as a commercial agent for one party—that is, it has a formal mandate from either the buyer or the seller, not from both.
The EBA explicitly states that: If a person acts as a commercial agent for both parties, the exemption under Article 3(b) of PSD2 cannot apply. (EBA Q&A 2020_5355)
This means that if a marketplace facilitates a sale, determines or influences the payment terms, and simultaneously processes the payment, it is effectively acting on behalf of both parties. The EBA further explains that the purpose of the exemption is to cover situations where the payment from the customer to the commercial agent is not a separate payment service, but merely part of the performance of the sales relationship. However, if the platform holds the funds(e.g., until the goods are delivered or the payment is distributed among multiple sellers), it performs operations comparable to those of a payment institution.
3.2 Practical Implication: Many Marketplaces Already Fail to Meet the Exemption
The EBA’s interpretation suggests that most modern marketplace models—which combine sales, logistics, fulfillment, and shipping—already exceed the limits of the exemption under the currently applicable PSD2 Directive.
This includes, for example:
- accepting payments from customers and subsequently distributing them among merchants,
- holding funds until delivery is confirmed,
- managing refunds or returns,
- combining ordering, shipping, and payment functions in a single interface.
These activities are already standalone payment services—particularly the acceptance of funds on behalf of others and their subsequent transfer—and therefore fall within the scope of the PSD2 even without PSD3 taking effect.
The same rules apply to peer-to-peer platforms that enable the direct exchange of funds between individuals or between small businesses. Although this is often a model “without the intermediation of traditional goods sales,” P2P platforms manage payments between users, hold funds until the transaction is confirmed, or provide mechanisms for settling claims.
In such cases, the exemption for commercial agents does not apply, as the platform acts in relation to both parties and manages funds—thus constituting the provision of a payment service. PSD3 and PSR clearly include these models within the regulated regime, which means that P2P platforms will need a license as a payment institution or an electronic money institution, or connect to a regulated provider.
4. PSD3 and PSR: Tightening and Clarifying the Commercial Agent Exemption
4.1 New Wording and the Regulator’s Motivation
The draft of the new PSD3 Directive and the parallel PSR Regulation confirms that existing exemptions will be retained, but they will be more precisely defined and more strictly assessed. The aim is to limit the possibility of circumventing the licensing regime through broadly interpreted exemptions. In the explanatory memorandum to the proposal, the Commission notes that, in practice, some entities abuse the commercial agent exemption to carry out activities that in fact constitute payment services.
From a practical standpoint, this means that:
- the exemption will apply only if the platform acts exclusively on behalf of one party and this is demonstrable both contractually and in practice,
- the platform must have no control over clients’ funds,
- it must not influence the terms of sale or prices,
- it must be clear that the payment being executed is merely an ancillary act within the main commercial transaction.
Otherwise, if the platform acts on behalf of both parties, it will be necessary for it to obtain authorization to provide payment services as a Payment Institution.
5. Practical implications for marketplaces and platforms with a logistics component
5.1 Models that will be problematic after PSD3 takes effect
For complex platforms combining e-commerce, fulfillment, and shipping, PSD3 will mark a major turning point. In these cases, it will be necessary to examine in detail whether they fall under the definition of a payment service provider.
Typically, these will be the following models:
- Integrated marketplaces, which collect payments from customers and subsequently distribute them among sellers (so-called split payments).
- Fulfillment platforms that hold funds until the goods are delivered or the service is confirmed.
- Logistics-commerce platforms that also handle shipping and billing within a single system (e.g., “sale + delivery + refund in a single process”).
- Services for multiple sellers that manage bulk payouts based on sales made through the platform.
All of these situations may be interpreted as the provision of payment services following the entry into force of the PSD3 Directive and the PSR Regulation if the platform handles clients’ funds in any way.
5.2 Risk of Incorrect Assessment
If a platform incorrectly assesses that it qualifies for an exemption and continues to engage in activities that are in fact subject to licensing, it exposes itself to the risk of:
- sanctions by the supervisory authority (in Slovakia, this is the National Bank of Slovakia),
- the obligation to retroactively obtain a license as a payment institution or an electronic money institution,
- the risk of invalidity of certain contracts or business relationships,
- reputational risks and operational impacts (e.g., loss of banking partners).
6. How to Prepare: Legal and Compliance Review
6.1 Step 1 – Business Model Analysis
Every platform should conduct a detailed legal analysis of its model to identify:
- whether the platform accepts or holds payments on behalf of others,
- whether it acts on behalf of one or both parties,
- what the actual relationship with sellers is (commission agent, agent, or merely a technical intermediary),
- how refunds, cancellations, and commission distribution are handled.
Without these answers, it is impossible to determine whether the exemption applies at all.
6.2 Step 2 – Legal and Contractual Framework of Relationships
If the platform wishes to remain under the exemption, it must have a clear and demonstrable mandate to act exclusively on behalf of one party. This should be explicitly stated in the contractual documentation with both sellers and customers.
At the same time, it must be contractually excluded that the platform will have control over funds—payments should flow directly between the parties to the transaction, or through a licensed payment service provider (a so-called payment facilitator or acquiring partner).
6.3 Step 3 – Assessment of the licensing strategy
If the analysis shows that the model does not meet the exemption criteria, the platform will have to:
- obtain a license as a payment institution or electronic money institution,
- or integrate with an already licensed provider (e.g., through a “white label” solution or an agency of a payment institution).
Licensing entails obligations in the areas of AML/CFT, protection of funds, internal risk management, and supervision by the National Bank of Slovakia—which represents a significant administrative and financial burden, but also provides greater credibility with banks and partners. Obtaining a license is thus a process involving legal challenges; however, with the guidance of an experienced legal representative such as our law firm, you can successfully navigate this process, thereby achieving greater transparency and a good reputation in the market, avoid potential risks from regulatory authorities and sanctions, and maintain the security and integrity of your company in the market.
7. Conclusion: The commercial agent exemption is narrowing; the licensing regime is becoming the standard
The PSD3 Directive and PSR Regulations are fundamentally changing the status of digital marketplaces in Europe. While PSD2 allowed for relatively broad use of the commercial agent exemption, the new legal framework narrows and defines this exemption such that only a smaller portion of platforms will be able to apply it—typically those acting as pure single-sided intermediaries without managing funds. For most modern platforms that combine sales, logistics, fulfillment, and shipping, this will mean a fundamental change: either a model adjustment or licensing.
In practice, this means that marketplaces that currently accept payments on behalf of sellers, distribute them, hold them until delivery, or handle refunds will have to operate as regulated entities under supervision once the PSD3 Directive takes effect.
Recommendations for Practice
It is advisable to start today:
- with an internal legal review of the business model,
- mapping payment flows (who holds the money when and on whose behalf),
- establishing contractual relationships with sellers, customers, and payment partners,
- and developing a compliance plan for PSD3/PSR.
Given the scope of the changes and the EBA’s stricter interpretation, it is clear that the commercial agent exemption will no longer be a safe haven. For marketplaces and logistics platforms, a new era of payment regulation begins today.
The PSD3 Directive and PSR Regulations are blurring the line between e-commerce platforms and payment institutions. The commercial agent exemption remains, but in practice, only a handful of purely intermediary entities will be able to utilize it. For platforms that combine sales, fulfillment, and logistics within their integrated legal model, it has become necessary to reassess their business model, processes, and contractual documentation to ensure legal certainty and compliance with the new regulations. Our law firm has many years of experience in the fintech sector and has successfully guided clients through numerous licensing processes, including those for payment institutions and electronic money institutions. If you are interested in a consultation or legal support regarding the implementation of the PSD3 Directive and the PSR Regulation, please do not hesitate to contact us.
