Court of Justice of the European Union
ABC Projektai UAB (formerly Bruc Bond UAB) v Lietuvos bankas
(Case C‑661/22)
EU:C:2024:148
2023 Oct 5; 2024 Feb 22
President of Chamber E Regan,
Judges Z Csehi (Rapporteur), M Ilešič, I Jarukaitis, D Gratsias
Advocate General M Campos Sánchez-Bordona
Financial servicesPayment servicesPayment institution authorised to provide servicesLithuanian payment institution receiving and retaining customers’ funds without accompanying payment ordersLithuanian bank revoking payment institution’s licence on ground that its practice constituting issuance of “electronic money” for which it was not authorisedWhether practice constituting “payment services” or issuance of “electronic money” Parliament and Council Directive 2009/110/EC, art 2(2) Parliament and Council Directive (EU) 2015/2366, art 4(3)

The claimant, a Lithuanian payment institution, was granted a licence by the defendant, the Lithuanian central bank, authorising it to provide and execute payment services. The payment institution permitted its customers to transfer funds to it without an accompanying payment order, but with the intention of using those funds, in the future, to make payment transactions. The bank subsequently took the view that the payment institution had retained customers’ funds for longer than the time permitted for the execution of payment transactions under Lithuanian law transposing Parliament and Council Directive (EU) 2015/2366, article 4(3) of which defined a “payment service”. The bank revoked the payment institution’s licence on the ground, inter alia, that its practice of retaining customers’ funds without transferring them constituted issuing “electronic money”, for which the payment institution was not licensed. Only authorised “electronic money institutions” could issue electronic money and had, uniquely, the power to hold customer funds for extended periods of time in “digital wallets”. Article 2(2) of Parliament and Council Directive 2009/110/EC defined “electronic money” as electronically stored monetary value, represented by a claim on the issuer, issued on receipt of funds for the purpose of making payment transactions, which was accepted by a person or company, other than the electronic money issuer. The payment institution’s challenge to the decision to revoke its licence was dismissed. On its appeal, the Supreme Court, Lithuania, stayed the proceedings and referred to the Court of Justice of the European Union for a preliminary ruling, the question, in essence, whether the activity of a payment institution which consisted in receiving funds from a user of a payment service, where such funds were not immediately accompanied by a payment order and therefore remained available on a payment account, constituted a “payment service” provided by that institution within the meaning of article 4(3) of Directive 2015/2366, or a transaction consisting in the issuance of “electronic money” within the meaning of article 2(2) of Directive 2009/110.

On the reference—

Held, where a payment service customer put funds at a payment institution’s disposal and those funds were credited to a payment account held by that institution in the name of that customer, such transactions, in principle, related to the operation of a “payment account” and, therefore, formed part of a “payment service” within the meaning of article 4(3) of Directive 2015/2366. Those transactions did not cease to be classified as such on the sole ground that the funds received were not accompanied by a payment order, allowing them to be used for a payment transaction, on the same day or the following business day. Whilst Directive 2015/2366 imposed time limits for executing payment orders, it did not preclude funds from being credited in advance to a payment account for the purpose of executing future payment orders, nor did it lay down any time limit within which a certain amount credited to the account had to be used for the purposes of a payment transaction. Nevertheless, the transfer of funds to a payment account always had to be made for the purpose of executing payment orders, irrespective of whether or not those orders had already been specified. Further, whilst an entry in a payment account could represent a “a claim”, expressed in monetary value, on the institution which was “issued on receipt of funds”, such an entry could not be reclassified as an issuance of “electronic money” within the meaning of article 2(2) of Directive 2009/110. The issuance of “electronic money” was distinct from the mere entry in a payment account in that such money had to be electronically “stored” before being used for the purposes of making a payment, which implied that it had been issued beforehand, that was to say, converted into a monetary asset separate from the funds received, and that its use as a means of payment was accepted by a “person other than the electronic money issuer”. In order for an activity to constitute an issuance of “electronic money” within the meaning of article 2(2), it was at least necessary that there was a contractual agreement between the user and the electronic money issuer under which those parties expressly agreed that the issuer would issue a separate monetary asset up to the value of the funds paid by the user. However, transferring and holding funds on a payment account without immediately mandating payment transactions up to the value of those funds did not mean that the user of the payment service had given their consent to the issuance of electronic money. In the present case, it did not appear that the payment institution had converted any of the funds which it received into electronically stored money which could be used by a network of customers who would accept it voluntarily, but rather, the funds in question were deposited in payment accounts and could be used solely to execute payment orders from the users concerned. Accordingly, the activity of a payment institution which consisted in receiving funds from a user of a payment service, where such funds were not immediately accompanied by a payment order and therefore remained available in a payment account, constituted a “payment service” within the meaning of article 4(3) of Directive 2015/2366, and not a transaction consisting in the issuance of “electronic money” within the meaning of article 2(2) of Directive 2009/110 (judgment, paras 34–38, 43, 47–49, 52, operative part).

J Jarusevičius and P Grendelis for the payment institution.

V Kazlauskaitė-Švenčionienė and E Kurelaitytė, agents, for the Lithuanian Government.

J Očková, M Smolek and J Vláčil, agents, for Czech Government.

J Möller and A Hoesch, agents, for the German Government.

B Majczyna, agent, for the Polish Government.

C Auvret, SL Kalėda, A Steiblytė and H Tserepa-Lacombe, agents, for the European Commission.

Sarah Addenbrooke, Barrister

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