ECLI:EU:C:2026:112

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OPINION OF ADVOCATE GENERAL

CAMPOS SÁNCHEZ-BORDONA

delivered on 26 February 2026 (1)

Case C‑51/25

Betaal Garant Nederland CV

De Nederlandsche Bank NV,

intervening party:

Vereniging Eigen Huis

(Request for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Supreme Administrative Court for Trade and Industry, Netherlands))

( Preliminary ruling procedure – Directive (EU) 2015/2366 – Payment services in the internal market – Concept of a payment service – Transaction by an intermediary entity under a tripartite agreement involving the holding of client funds in a bank account of that entity and their subsequent transfer to a business owner, following the client’s authorisation – Classification of the transaction – Real-estate security deposit – Execution of credit transfers – Ancillary nature of the payment services – Payment services provided by persons or entities for whom those services are not their professional activity – Money remittance )

1. The dispute giving rise to this request for a preliminary ruling concerns whether, in accordance with Directive (EU) 2015/2366, (2) the business activity of an entity may be regarded as a ‘payment service’ where that entity, acting as an intermediary between a client and a building contractor, receives funds from the former (intended to guarantee payment of the amounts owed to the contractor) and, once the client has given his or her consent, transfers them to the contractor.

2. Netherlands legislation prohibits anyone from carrying on the activity of a payment service provider without authorisation from De Nederlandsche Bank NV (Central Bank of the Netherlands; ‘the DNB’). In the present case, according to the DNB, the entity which acted as an intermediary was carrying on that activity without having the required authorisation.

3. The referring court requests an interpretation of Directive 2015/2366 in order to adjudicate on the lawfulness of the decision taken by the DNB, which ordered the abovementioned entity to cease its activity as a payment service provider until it had the necessary authorisation.

I. Legal framework

A. European Union law: Directive 2015/2366

4. Recital 6 states:

‘New rules should be established to close the regulatory gaps while at the same time providing more legal clarity and ensuring consistent application of the legislative framework across the Union. Equivalent operating conditions should be guaranteed, to existing and new players on the market, enabling new means of payment to reach a broader market, and ensuring a high level of consumer protection in the use of those payment services across the Union as a whole. This should generate efficiencies in the payment system as a whole and lead to more choice and more transparency of payment services while strengthening the trust of consumers in a harmonised payments market.’

5. Article 1(1) states:

‘1. This Directive establishes the rules in accordance with which Member States shall distinguish between the following categories of payment service provider:

…

(d) payment institutions;

…’

6. Article 4 (‘Definitions’) states:

‘For the purposes of this Directive, the following definitions apply:

…

(3) “payment service” means any business activity set out in Annex I;

(4) “payment institution” means a legal person that has been granted authorisation in accordance with Article 11 to provide and execute payment services throughout the Union;

(5) “payment transaction” means an act, initiated by the payer or on his [or her] behalf or by the payee, of placing, transferring or withdrawing funds, irrespective of any underlying obligations between the payer and the payee;

…

(8) “payer” means a natural or legal person who holds a payment account and allows a payment order from that payment account, or, where there is no payment account, a natural or legal person who gives a payment order;

(9) “payee” means a natural or legal person who is the intended recipient of funds which have been the subject of a payment transaction;

(10) “payment service user” means a natural or legal person making use of a payment service in the capacity of payer, payee, or both;

(11) “payment service provider” means a body referred to in Article 1(1) or a natural or legal person benefitting from an exemption pursuant to Article 32 or 33;

(12) “payment account” means an account held in the name of one or more payment service users which is used for the execution of payment transactions;

(13) “payment order” means an instruction by a payer or payee to its payment service provider requesting the execution of a payment transaction;

…

(20) “consumer” means a natural person who, in payment service contracts covered by this Directive, is acting for purposes other than his or her trade, business or profession;

…

(22) “money remittance” means a payment service where funds are received from a payer, without any payment accounts being created in the name of the payer or the payee, for the sole purpose of transferring a corresponding amount to a payee or to another payment service provider acting on behalf of the payee, and/or where such funds are received on behalf of and made available to the payee;

…

(24) “credit transfer” means a payment service for crediting a payee’s payment account with a payment transaction or a series of payment transactions from a payer’s payment account by the payment service provider which holds the payer’s payment account, based on an instruction given by the payer;

…’

7. Annex I states:

‘PAYMENT SERVICES

(as referred to in point 3 of Article 4)

…

(3) Execution of payment transactions, including transfers of funds on a payment account with the user’s payment service provider or with another payment service provider:

(a) execution of direct debits, including one-off direct debits;

(b) execution of payment transactions through a payment card or a similar device;

…

(6) Money remittance.

…’

B. National law: Wet op het financieel toezicht (3)

8. The Wft incorporates Directive 2015/2366 into Netherlands law.

9. According to Article 1:1 of that law:

– ‘a payment service is a business activity as defined in the Annex to the Directive … on payment services;’

– ‘a payment service provider is a person whose activity involves providing payment services’.

10. Article 2:3a(1) prohibits any [legal] person having its registered office in the Netherlands from carrying on the activity of payment service provider without the relevant authorisation granted by the DNB.

II. Facts, dispute and questions referred for a preliminary ruling

11. Betaal Garant Nederland CV (‘Betaal’) is a company which advises private individuals and arranges deposits and guarantees for them in connection with construction projects and works.

12. Stichting BGN Zekerheidsstelling (‘the Betaal Foundation’) is a foundation linked to Betaal.

13. Betaal offers individuals the product ‘Afbouwgarantie’ (works completion guarantee) and the product ‘Zekerheidsstelling’ (security deposit).

14. Betaal’s security deposit service is used when a business owner (the contractor) is engaged by a client to undertake the construction of a home or building.

15. Contractors are exposed to the risk of non-payment by the client, since, by law, the latter may pay the price of the building work in various instalments and, in general, only has to pay the final instalment when the home has been duly accepted.

16. To cover that risk of non-payment, contractors may require clients to deposit the amount of the final payment with a notary or provide an equivalent guarantee. The security deposit arranged by Betaal falls into the latter category. (4)

17. Betaal offers that service to the parties to a works contract, on the basis of an agreement reached between the client, the contractor and Betaal itself. That agreement is governed by the general terms and conditions for the security deposit (‘the GTC’), established by Betaal, which include the following:

– Out of the first instalment owed by the client to the contractor, the client is to pay a certain amount to the Betaal Foundation (Article 1 of the GTC).

– The amount of the security deposit is typically 6% of the contract price (Article 3 of the GTC). In no event may it exceed the limit of 10% laid down in Article 767 of Book 7 of the Burgerlijk Wetboek (Netherlands Civil Code).

– The contractor is to provide the client with a receipt in respect of that amount (Article 4 of the GTC).

– If the works contract has been performed to the satisfaction of the contractor and the client and that fact has been notified to Betaal in writing, the amount of the security deposit is to be paid to the contractor within five working days (Article 9 of the GTC).

– With regard to the cost of arranging the security deposit, the client is to pay 4% of the deposit amount, or a minimum of EUR 300 (Article 5 of the GTC). The guarantee is reserved and made available to the client after the amount invoiced has been received.

– The cost borne by the contractor is to be 2.5% of the deposit amount, or a minimum of EUR 200 (Article 10 of the GTC). That cost is deducted from the amount of the deposit when it is paid to the contractor.

18. The Vereniging Eigen Huis (a consumer organisation for homeowners) asked the DNB to take coercive measures against Betaal, because it was likely that Betaal was operating as an insurance company without having the necessary authorisation to do so.

19. The DNB examined whether Betaal’s ‘works completion guarantee’ and ‘security deposit’ products breached the Wft.

20. On 8 December 2020, the DNB ordered Betaal to cease offering both products (5) and imposed a periodic penalty payment on it, (6) alleging that:

– By offering the works completion guarantee, it contravened the prohibition on carrying on the activity of insurance, other than life insurance (with limited scope of risk), without authorisation, exemption or dispensation. Such conduct infringed Article 2:27(1) or Article 2:48(1) of the Wft.

– By offering the security deposit product, it contravened the prohibition on carrying on the activity of payment service provider without authorisation. Such conduct infringed Article 2:3a(1) of the Wft.

21. By a decision of 6 October 2021 (‘the contested decision’), the DNB declared the internal appeal lodged by Betaal against the imposition of the penalty to be unfounded.

22. On 31 January 2022, having established that Betaal had not made the penalty payment, the DNB demanded payment of the relevant amount (‘the default notice decision’).

23. Betaal lodged an internal appeal against the default notice decision. The DNB referred that appeal to the rechtbank Rotterdam (District Court, Rotterdam, Netherlands).

24. By a judgment of 10 November 2022, (7) that court of first instance declared the appeal lodged against the contested decision to be unfounded and the appeal lodged against the default notice decision to be inadmissible.

25. In the opinion of that court, the DNB was correct to find that Betaal needed authorisation to offer the security deposit product (the only aspect discussed in the present reference for a preliminary ruling) and that, since it did not have such authorisation, it had infringed the Wft.

26. In particular, the rechtbank Rotterdam (District Court, Rotterdam) found the following:

– Betaal, in the course of its activity, on a regular, systematic and independently identifiable basis, offers a payment service within the meaning of the Wft.

– A service whereby payment transactions, including transfers of money, are conducted in a payment account with a payment service provider, is a payment service.

– Betaal is the intermediary that executes the transfer of funds from the client (payer) to the contractor (recipient). That conclusion is not altered in any way by the fact that the Betaal Foundation operates the account in which the security deposit is held.

– For the purposes of clarifying whether Betaal is providing a payment service by offering the security deposit product, the place where the money is deposited in the interim is irrelevant.

27. Betaal has brought an appeal against the judgment at first instance before the College van Beroep voor het bedrijfsleven (Supreme Administrative Court for Trade and Industry, Netherlands) and that court has referred the following question to the Court of Justice for a preliminary ruling:

‘Must Article 4(3) of Directive 2015/2366 … read in conjunction with point 3(c) of Annex I [to] that directive, be interpreted as meaning that a service entailing the receipt and forwarding of funds, provided by an entity as an intermediary, constitutes a payment service – and, more specifically, the execution of [credit] transfers within the meaning of that directive – if, in the context of a contract [concluded] with a client and a contractor, that entity receives the client’s funds [in] its payment account and, after the client has given its consent, transfers those funds from that payment account to the contractor?’

III. Procedure before the Court of Justice

28. The request for a preliminary ruling was received at the Court on 28 January 2025.

29. The DNB and the Czech, Italian, Netherlands and Norwegian Governments submitted written observations, as did the European Commission.

30. The DNB, the Commission and the Norwegian Government appeared at the hearing held on 3 December 2025.

IV. Assessment

31. The referring court requests the interpretation of Article 4(3) of Directive 2015/2366, read in conjunction with point 3(c) of Annex I to that directive.

32. For the court a quo, the response to its request for a preliminary ruling will allow it to determine whether the service offered by Betaal constitutes a payment service, within the meaning of Directive 2015/2366, in view of the fact that:

– Betaal acts as an intermediary in the context of relations between a client and a contractor;

– Betaal receives the funds from the client in its payment account (Betaal’s payment account) and, once the client has given his or her consent, transfers the funds from that payment account to the contractor.

33. The DNB and the Netherlands Government (8) propose that the question referred should be answered in the affirmative. Conversely, the Italian Government and the Commission argue for an answer in the negative. The Czech Government argues that it should be answered in the affirmative under certain conditions, (9) and, lastly, the Norwegian Government maintains that the service at issue is not a payment service, but rather a money remittance service.

34. In interpreting a provision of EU law, it is necessary to consider its wording, the context in which it occurs and the objectives pursued by the rules of which it is part. (10)

A. Literal interpretation

35. In accordance with Article 4(3) of Directive 2015/2366, a payment service is ‘any business activity set out in Annex I’.

36. Among the activities that Annex I to Directive 2015/2366 includes in the category of payment services is that described in point 3(c). According to that provision, a payment service may consist in the ‘execution of payment transactions, including transfers of funds on a payment account with the user’s payment service provider or with another payment service provider’, where that transaction involves the ‘execution of credit transfers, including standing orders’.

37. Article 4(24) of Directive 2015/2366 defines the term ‘credit transfer’ as ‘a payment service for crediting a payee’s payment account with a payment transaction or a series of payment transactions from a payer’s payment account by the payment service provider which holds the payer’s payment account, based on an instruction given by the payer’.

38. The DNB submits that Betaal, acting as an intermediary, executes the transfer of funds from the client (the payer within the meaning of Article 4(8)) to the contractor (the payee within the meaning of Article 4(9)) and thus provides a payment service within the meaning of Article 4(3), read in conjunction with point 3 of Annex I to Directive 2015/2366.

39. It is important to emphasise the following:

– The DNB does not dispute the fact that neither Betaal nor the Betaal Foundation have payment accounts in the name of its clients.

– Nor does it refute the fact that the transfer of funds to the contractor is made from the account of the Betaal Foundation, and not from the clients’ account.

– The DNB acknowledges that Betaal cannot manage the funds that make up the security deposits and has to confine itself to keeping them blocked, from the time the client deposits those funds until they are unblocked by the definitive agreement between the client and the contractor.

– It accepts that, once the definitive agreement between the client and contractor has been reached, Betaal hands over the funds to the contractor, after deducting its commission. This is a deferred, conditional payment by the client to the contractor, which is made when the building work is completed to the satisfaction of the owner of the property.

– It maintains that the account from which the transfer of funds is made to the contractor is irrelevant, because the definition of the execution of credit transfers as a payment service in Annex I to Directive 2015/2366 is very broad and covers actions taken by entities that are not banks, but which involve the transfer of funds to payment accounts held by banks.

40. The referring court and the DNB refer to an answer from the Commission which is incorporated into the Single Rulebook of the European Banking Authority (‘the EBA’) (11) and which would support the broad interpretation argued by the DNB. (12)

41. According to that answer:

– The receipt and forwarding of funds qualifies as a payment service according to Article 4(3) of Directive [2015/2366], in conjunction with Annex I to that directive.

– Depending on the design of the contractual agreements it could qualify, for instance, as money remittance (Article 4(22) in conjunction with point 6 of Annex I to that directive) or as another payment service, for example the execution of payment transactions (point 3 of Annex I to that directive).

42. However, at the hearing, the Commission explained clearly that that answer related to services for receiving and sending funds that were different from the service of arranging security deposits for construction projects, which is the service provided by Betaal.

43. In my opinion, the literal interpretation of Article 4(3) of Directive 2015/2366, read in conjunction with point 3(c) of Annex I to that directive, does not support the DNB’s argument.

44. The wording of the provisions for which the referring court is seeking an interpretation implies that the transfer of funds referred to in those provisions must be carried out by the payment service provider that holds the payer’s payment account. (13)

45. As highlighted by the referring court, (14) two distinct payment transactions are carried out in the present case:

– In the first transaction, the client, acting as the payer (Article 4(8) of Directive 2015/2366), issues a payment order (Article 4(13)) to its bank, which acts as the payment service provider (Article 4(11)). That payment order implies the transfer of funds from the client’s payment account (Article 4(12)) to the payment account of the Betaal Foundation, which could be regarded as the payee (Article 4(9)). Specifically, it is the client’s bank that carries out that payment transaction (point 3 of Annex I) and therefore provides the payment service. Neither Betaal nor the Betaal Foundation carries out that payment transaction.

– In the second transaction, the Betaal Foundation, acting as the payer (Article 4(8) of Directive 2015/2366), issues a payment order (Article 4(13)) to its bank, which acts as the payment service provider (Article 4(11)). That payment order entails the transfer of funds from the payment account (Article 4(12)) of the Betaal Foundation to the payment account of the contractor, as the payee (Article 4(9)). It is the Betaal Foundation’s bank that carries out that payment transaction (point 3 of Annex I) and therefore provides the payment service. Once again, neither Betaal nor the Betaal Foundation carries out that payment transaction.

46. Thus, we are dealing with the provision of two payment services, carried out by the financial institutions and not by Betaal. Betaal’s clients do not have payment accounts with that entity or with the Betaal Foundation that would allow them to transmit payment orders to Betaal to make transfers to the contractors.

47. In the case of the two payment services carried out by the client’s bank and the Betaal Foundation’s bank, Betaal does not intervene in any way nor does it take any technical action to handle the transfers. Point 3 of Annex I to Directive 2015/2366 refers to ‘execution of payment transactions’ and, in point 3(c), to ‘execution of credit transfers’, which implies technical involvement with the accounts by the payment service provider. (15)

48. I reiterate that neither Betaal, nor its Foundation, is involved technically in that way, since they do not hold accounts in the name of the clients, nor do they manage accounts belonging to the clients. The technical operations for executing credit transfers and payment transactions are carried out by their respective banks.

49. A payment transaction, according to Article 4(5) of Directive 2015/2366, is ‘an act, initiated by the payer or on his [or her] behalf or by the payee, of placing, transferring or withdrawing funds, irrespective of any underlying obligations between the payer and the payee’.

50. Betaal merely transfers funds from the account of its Foundation to the contractor, if the contractor and the client consider that the work has been completed correctly. There is, then, an underlying transaction which must be completed for Betaal to be able to give its bank a payment order (Article 4(13) of Directive 2015/2366). Therefore, as the DNB argues, it cannot be said that there is a single payment service in the triangular legal transaction between the property owner, Betaal and the contractor.

51. Certainly, the client gives an instruction to his or her bank to transfer the money for the security deposit to Betaal. Nevertheless, it cannot be said that there is a payment order by the client to transfer funds to the contractor, because that action does not take place automatically.

52. Indeed, a potential disagreement between the client and the contractor would prevent the money transferred by the client to Betaal and deposited in the account of its Foundation from being paid into the contractor’s account. In the event of a disagreement, either the client recovers the money constituting the security deposit or that money will be paid to the new contractor who finishes the work to the client’s satisfaction.

53. Article 80 of Directive 2015/2366 establishes that, in general terms, users of payment services cannot revoke a payment order once it has been received by the payer’s payment service provider. Conversely, in the present case, the client, as the payer of the security deposit payment, is able to ‘revoke’ the transfer of those funds to the contractor payee, if he or she is not in agreement as to the completion of the building work.

54. The service offered by Betaal consists in providing a guarantee which facilitates fulfilment of the contract between the client and the contractor: the transfers of money necessary to formalise that service are incidental to that guarantee.

55. In that context, Betaal does not provide a payment service, but rather it makes use of the payment services of the client’s bank and the contractor’s bank in order to coordinate the guarantee. Betaal, as has already been mentioned, is not involved in the technical operations to carry out those payment services, nor does it control the funds deposited in the account of its Foundation, for the purposes of trading with them or obtaining a profit from them. (16)

B. Systematic interpretation

56. According to recital 24 of Directive 2015/2366, the application of its legal framework ‘should be confined to service providers who provide payment services as a regular occupation or business activity in accordance with this Directive’ (emphasis added).

57. That recital and Article 1(1) of Directive 2015/2366 specify the categories of payment service providers which may legitimately provide payment services throughout the European Union. Those categories include:

– credit institutions which take deposits from users that can be used to fund payment transactions, subject to the prudential requirements laid down in Directive 2013/36/EU; (17)

– electronic money institutions which issue electronic money that can be used to fund payment transactions, subject to the prudential requirements laid down in Directive 2009/110/EC; (18)

– payment institutions; and

– post office giro institutions which are so entitled under national law.

58. Betaal, as the provider of the security deposit service to clients and building contractors in the Netherlands, does not fit into any of those categories. ‘Payment institutions’ subject to the stringent rules laid down in Directive 2015/2366 must provide payment services as their regular, main, business activity. (19)

59. The requirement that the provision of payment services should be a professional activity and should be the provider’s main activity is explained by the legislative context of Directive 2015/2366.

60. Indeed, the classification of a transaction as a ‘payment service’ has important legal effects for an entity which offers that service as its regular business activity.

61. In the first place, the provision of payment services on a professional basis by payment institutions is subject to authorisation. The requirements and the procedure for granting that authorisation are laid down in Chapter I of Title II of Directive 2015/2366. In that regard, a provider must, in particular, demonstrate that it has a corporate governance system and internal control mechanisms, and also that it is in a position to apply the appropriate and proportionate systems, resources and procedures necessary for it to function correctly. (20)

62. In the second place, an entity which provides payment services is subject to prudential supervision: in accordance with Article 23 of Directive 2015/2366, the competent authorities may, in particular, carry out on-site inspections and, where necessary, suspend or withdraw an authorisation.

63. In the third place, payment institutions have to satisfy certain requirements relating to initial capital and own funds, which are detailed in Articles 6 to 9 of Directive 2015/2366.

64. In the fourth place, Directive 2015/2366 establishes harmonised rules in relation to the civil liability of payment service providers for unauthorised payment transactions (Article 73) or for non-execution, defective execution or late execution of payment transactions (Article 89).

65. The rigour of the requirements imposed by Directive 2015/2366 only makes sense if they are applied to professional providers of payment services. Such requirements would be disproportionate if applied to providers of other kinds of services which, in addition, conduct money transfers as an ancillary component of their main activity.

66. While it is for the referring court to make that assessment, Betaal appears to fall into the latter category, since its main activity is the provision of real estate security deposit services to buyers and building contractors for properties under construction.

67. If, in the context of carrying on its main activity, Betaal conducts payment transactions on an ancillary basis, that fact does not make it a company that provides payment services on a professional basis, subject to the supervision of the DNB.

C. Teleological interpretation

68. The DNB proposes a broad interpretation of Directive 2015/2366 that takes into consideration the protection of users. (21) At the hearing, the DNB emphasised that objective as the basis of its argument.

69. Recital 6 of Directive 2015/2366 (22) refers, in effect, to the objective of ‘… ensuring a high level of consumer protection in the use of those payment services …’ (23)

70. In my opinion, however, the objective of protecting consumers cannot take precedence over any other interpretative criterion when interpreting Directive 2015/2366.

71. That objective sits alongside others of equal importance, such as that of providing ‘more legal clarity’, ensuring ‘consistent application of the legislative framework’ and generating ‘efficiencies in the payment system as a whole’. (24)

72. From that integrated perspective, there is no justification for an expansive interpretation of the concept of payment service provider (subject to Directive 2015/2366) which alters its defining features to such an extent that they are indistinguishable from those of other concepts that fall outside the scope of that directive.

73. The protection of payment service users cannot, then, give rise to a situation in which providers of other services who carry out transfers of funds in a manner ancillary to their main activity are subject to the stringent rules applicable to payment service providers subject to Directive 2015/2366.

74. Such an extension would be difficult to accept for professionals, such as notaries and lawyers, who receive, on deposit, funds from their clients to be handed over to third parties at a subsequent time and according to the instructions received. Those legal actors, in the course of their activity, provide services relating to the custody of funds and the provision of security deposits, and they make the transfers and give the payment orders necessary to that end. That does not, however, make them subject to the rigorous obligations of Directive 2015/2366.

75. In the case of the Netherlands, a notary is able to handle security deposits for building work in the same way as Betaal does. In fact, Netherlands legislation specifically provides for notaries to receive the relevant funds from their clients in order to guarantee payment of the amounts that the clients have to pay to the contractor. (25)

76. Applying the argument made by the DNB regarding the nature of the service provided, a notary who received such funds from the client and later passed them on to the contractor would also be subject to Directive 2015/2366 and the prudential supervision provided for therein. At the hearing, the DNB acknowledged, however, that Directive 2015/2366 does not apply to professionals, such as notaries and lawyers, who handle security deposits and hold client funds. (26)

77. If those professionals cannot be classified as payment service providers within the meaning of Directive 2015/2366, despite receiving funds from clients in order to pass them on to third parties, it is, among other reasons, because they are not professional and regular providers of such services as their main activity, but rather they do so on an ancillary or peripheral basis, that is to say, as a complement to their own functions.

78. That same argument could also be extended to the main activity carried on by Betaal, which is not that of providing payment services, but rather that of arranging security deposits to ensure that homebuyers settle their debt with the contractors who build those homes.

79. It follows from the above that providers of mere security deposit services who, on an ancillary basis, provide payment services are excluded from the scope of Directive 2015/2366.

80. Certainly, excluding providers of security deposit services such as Betaal from the scope of Directive 2015/2366 does not provide users with the same protection as that directive affords to those using payment services provided by payment institutions. (27)

81. That fact, however, does not have a determining influence on the response to the concerns of the referring court. The national legal order may have other mechanisms for protecting users which safeguard their interests, whether through ways of insuring the funds, or by the imposition, by law, of strict conditions on entities which, even though they do not provide payment services, receive funds from those clients by way of a guarantee of the performance of their contractual obligations.

82. In short, Article 4(3) of Directive 2015/2366, read in conjunction with point 3(c) of Annex I to that directive, is to be interpreted as meaning that a service entailing the receipt and forwarding of funds, provided by an entity as an intermediary, does not constitute a payment service if, in the context of a contract concluded with a client and a contractor, that entity receives the client’s funds in its payment account and, after the client has given its consent, transfers those funds from that payment account to the contractor.

D. Money remittance

83. According to the Norwegian Government, the service provided by Betaal would fit the concept of ‘money remittance’, (28) referred to in point 6 of Annex I to Directive 2015/2366 and defined in Article 4(22) of that directive. (29)

84. In reality, there is no reason for the Court of Justice to rule on the interpretation of Article 4(22) of Directive 2015/2366, since is it not a provision that is referred to in the order for reference.

85. In case the Court decides, in any event, to respond to the view of the Norwegian Government, I shall examine that provision below.

86. Recital 9 of Directive 2015/2366 states clearly that money remittance ‘is a simple payment service that is usually based on cash provided by a payer to a payment service provider, which remits the corresponding amount, for example via a communication network, to a payee or to another payment service provider acting on behalf of the payee.’

87. The Norwegian Government, having acknowledged that, in the present case, the payer’s funds are received without a payment account being created in the name of the payer or the payee, argues that a ‘money remittance’ does indeed take place, within the meaning of the abovementioned provisions.

88. In my opinion, there are various arguments for rejecting that view.

89. In the first place, the dynamics of the transactions in which Betaal is involved are not those of a ‘simple’ money remittance, which is characterised by its immediacy and by the unconditional transfer of the money to the payee. (30)

90. In the second place, with a money remittance, the payee receives the amount which the payer has transferred. In Betaal’s case, that automaticity and unconditionality do not exist: the client could give the instruction to transfer the funds and the funds might not reach the contractor payee if the property has not been finished to the payer’s satisfaction.

91. In the third place, for Betaal’s activity to be classified as a payment service consisting in money remittance, it would have to be carried on as its main activity and on a professional basis. In other words, Betaal would have to be engaged in the activity of money remittance on a regular basis, without its money remittance services being ancillary to, or instrumental in, the provision of a security deposit service.

92. As I have already set out, Betaal’s main activity is not money remittance, but rather arranging security deposits to guarantee the payment, by the clients, to the contractors who are building their homes. Money remittances, if they took place in the present case, would be an instrumental and ancillary activity.

93. Nor do I consider the Norwegian Government to be correct in its comparison between Betaal’s security deposit service and those provided by ‘supermarkets, merchants and other retailers [which] provide to the public a corresponding service enabling them to pay utilities and other regular household bills’, referred to in recital 9 of Directive 2015/2366.

94. The analogy, I repeat, is not appropriate in that: (a) supermarkets, traders and other retailers transfer all of the funds remitted by the customers to pay certain bills, without deducting any amount; and (b) the service they provide is not a service that is ancillary to, or instrumental in, another main activity, but rather a remittance of money in order to pay those bills – a service which, in some States, those entities offer their customers as just one more in a catalogue of (main) services they provide.

V. Conclusion

95. In the light of the foregoing considerations, I propose that the Court of Justice should respond to the College van Beroep voor het bedrijfsleven (Supreme Administrative Court for Trade and Industry, Netherlands) as follows:

Article 4(3) of Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC, read in conjunction with point 3(c) of Annex I to that directive,

must be interpreted as meaning that a service entailing the receipt and forwarding of funds, provided by an entity as an intermediary, does not constitute a payment service if, in the context of a contract concluded with a client and a contractor, that entity receives the client’s funds in its payment account and, after the client has given its consent, transfers those funds from that payment account to the contractor.

1 Original language: Spanish.

2 Directive of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC (OJ 2015 L 337, p. 35).

3 Law on the supervision of financial markets (‘the Wft’).

4 The client may then deposit the final tranche of the cost of the building work in the account of the Betaal Foundation rather than with a notary.

5 Betaal had to put an end to those infringements within four weeks, following publication of the decision (grace period), by ceasing to offer the works completion guarantee and security deposit products and assigning, modifying or terminating any current agreements.

6 The penalty was EUR 10 000.00 for each week (after the expiry of the grace period) that Betaal failed to comply with the order in full. The maximum amount of the penalty is EUR 50 000.00.

7 ECLI:NL:RBROT:2022:9932.

8 In its written observations, the Netherlands Government confined itself to stating that it shared the position of the DNB and that it would possibly explain its point of view orally. It never gave that explanation, as it did not attend the hearing.

9 The Czech Government submits that a service such as that at issue in the present dispute only constitutes a payment service when an entity provides it in the course of a professional or commercial activity, without it being solely a necessary component of another service, and the transfer of funds is carried out solely on the basis of an instruction from the payer or the payee.

10 Judgments of 17 November 1983, Merck (C‑292/82, EU:C:1983:335, paragraph 12); of 6 July 2023, Commissaire général aux réfugiés et aux apatrides (Refugee who has committed a serious crime) (C‑8/22, EU:C:2023:542, paragraph 29); and of 1 August 2025, Alace and Canpelli (C‑758/24 and C‑759/24, EU:C:2025:591, paragraph 91).

11 Answer of 18 March 2022 to question ID 2020_5216. The answer lacks binding legal force. It is available on the EBA website, in the section Single Rulebook Q&A, Question ID 2020_5216; www.eba.europa.eu/single-rule-book-qa/qna/view/publicId/2020_5216.

12 The DNB also refers to the Commission’s answer of 6 January 2023 to question ID 2020_5099, but the factual circumstances that formed the basis of that question where different from those of the present case. That answer from the Commission is available at https://www.eba.europa.eu/single-rule-book-qa/qna/view/publicId/2020_5099.

13 Judgment of 22 February 2024, ABC Projektai (C‑661/22, EU:C:2024:148, paragraph 34): ‘… where a payment service user puts funds at a payment institution’s disposal and those funds are credited to a payment account held by that institution in the name of that user, such transactions must, in principle, be regarded as constituting a transaction related to the operation of a payment account within the meaning of Article 4(12) of Directive 2015/2366 and, therefore, as forming part of a payment service, within the meaning of Article 4(3) of that directive.’

14 Order for reference, paragraphs 12.1 to 12.3.

15 In that regard, I agree with the statements made by the court a quo in paragraph 13.5 of the order for reference: ‘… it could be inferred from the context of the provisions in the chapter ‘Execution of payment transactions’ (Articles 78 to 93) of Directive 2015/2366 and the definitions of payment transaction, payer and payee, that the execution of payment transactions is principally to be understood from a technical perspective and that ‘execution’ refers to the execution of a payment transaction on a payment account. … Those provisions appear to assume the direct and technical involvement of the payment service provider in the transfer of funds from one payment account to another.’ Emphasis added.

16 At the hearing, the DNB confirmed that Betaal did not act as a financial intermediary in relation to the funds constituting the security deposits; that is to say, it was obliged to keep them blocked and not to operate with them for the purposes of maximising its profits. Consequently, Betaal cannot be likened to a financial intermediary, where the risk involved justifies the entity being subject to prudential supervision by the DNB.

17 Directive of the European Parliament and of the Council of 26 June 2013 on access to the activity of credit institutions and the prudential supervision of credit institutions and investment firms, amending Directive 2002/87/EC and repealing Directives 2006/48/EC and 2006/49/EC (OJ 2013 L 176, p. 338).

18 Directive 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 amending Directives 2005/60/EC and 2006/48/EC and repealing Directive 2000/46/EC (OJ 2009 L 267, p. 7).

19 In relation to Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC (OJ 2007 L 319, p. 1), the judgment of 22 March 2018, Rasool (C‑568/16, EU:C:2018:211, paragraph 36), stated that its application should be confined to payment service providers whose ‘main activity’ consists in the provision of payment services to payment service users. In paragraph 37 of that judgment, the Court of Justice held that the main activity of the defendant undertaking was the operation of gaming arcades and that, in that context, the operations concerning the multifunctional terminals, for which users exchanged and withdrew money, formed part of a service that was purely ancillary to that activity.

20 Betaal did not have that authorisation, which was why the DNB ordered it to cease its activity.

21 For the purposes of this dispute, it is not relevant to specify whether the users protected would be only those who were ‘consumers’ in the strict sense of the term or whether they would also include those who did not fit that definition (such as undertakings, for example). Recital 53 of Directive 2015/2366 reads: ‘As consumers and undertakings are not in the same position, they do not need the same level of protection. While it is important to guarantee consumer rights by provisions from which it is not possible to derogate by contract, it is reasonable to let undertakings and organisations agree otherwise when they are not dealing with consumers. However, Member States should be able to provide that microenterprises … be treated in the same way as consumers. In any case, certain core provisions of this Directive should always apply, irrespective of the status of the user.’

22 Transcribed in point 4 of the present Opinion.

23 See judgment of 2 September 2021, CRCAM (C‑337/20, EU:C:2021:671, paragraph 44), with regard to the purpose of Directive 2007/64, which is, to a great extent, the same as the objectives pursued by Directive 2015/2366.

24 Recital 6 of Directive 2015/2366.

25 According to Article 767 of Book 7 of the Netherlands Civil Code: ‘The developer shall only be obliged to make payments corresponding, at least approximately, to the progress of the building work or the value of the assets that have been transferred to it; nevertheless, in order to guarantee the fulfilment of its obligations, it may be agreed that the developer should deposit with a notary an amount not exceeding 10% of the price of the work or provide an equivalent guarantee for that amount. Any amount paid in excess [of 10%] constitutes an undue payment.’

26 The Italian Government makes similar observations (paragraphs 37 and 38 of its written observations). In its view, a broad interpretation of the legislation in question could significantly extend the concept of a payment service, with consequences that are difficult to predict. Activities that are currently carried on freely and are not considered to be subject to the rules on payment services could fall within the scope of that legislation, if the service described in the request for a preliminary ruling were classified as a payment service. It adds that, in that scenario, a similar classification should apply to the service of depositing with a notary the price of the transfer of ownership of, or the transfer, creation or extinguishment of other rights in rem over, immovable assets or going concerns. Similarly, any entity that provides a similar guarantee service, or service involving the custody of funds, could be regarded as a payment service provider.

27 At the hearing, the DNB raised the possibility of security deposit providers becoming insolvent and not being able to recover the funds allocated for that purpose. It added that that had happened in the case of Betaal.

28 The syntagm ‘money remittance’ presents a certain degree of ambiguity. From its translation in the different language versions that I have consulted (‘envío de dinero’ (Spanish), ‘transmission de fonds’ (French), ‘Finanztransfer’ (German), ‘geldtransfer’ (Dutch), ‘rimessa di denaro’ (Italian), ‘envio de fundos’ (Portuguese) and ‘remiterea de bani’ (Romanian)), it is not possible to obtain a very clear idea of its semantic field, in order to distinguish it from other more or less similar concepts.

29 Transcribed in point 6 of the present Opinion.

30 Betaal does not transfer all of the money received from the client to the contractor. According to Article 10 of the GTC, Betaal deducts 2.5% of the deposit amount, or a minimum of EUR 200, from the amount received from the client, which is neither transferred nor paid to the contractor.

Opinion of Advocate General Campos Sánchez-Bordona delivered on 26 February 2026.###

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