Some online services offer a fiduciary process for your business model when customers interact with each other. This is also useful per se, as it allows cash flows to be controlled and, if necessary, fees for the use of the platform to be withheld. This may apply to marketplaces selling third-party objects or rights, as well as providers of other business models and online services that, for whatever reason, seek to prevent direct cash flows between individual customers from taking place, for example, because smaller payment amounts are otherwise to be feared by large amounts of payment.

However, when offering such a procedure/model, there is a major problem to be taken into account, namely the Payment Services Supervision Act (ZAG). This regulates requirements for payment services and provides for any necessary approvals from BaFin, the Federal Financial Supervisory Authority.

The ZAG is certainly one of the most complicated laws, especially because the legislator is no longer able to write comprehensible norms. An example of an exception:

payment transactions carried out via a telecommunications, digital or IT device where the goods or services are delivered to a telecommunications, digital or IT device and are to be used by such a device, provided that the operator of the telecommunications, digital or IT system or IT network shall not operate exclusively as an intermediary between the payment service user and the supplier of the goods and services.

Quiz question: Who can tell me when you don’t need a BaFin permit to run an online shop/marketplace?

Unfortunately, there are so far very few judgments and little literature on the subject. Probably the most well-known judgment came from the Regional Court of Cologne in 2011 and initially prohibited the delivery service “Delivery Hero” from receiving money from customers and later disbrate this money to suppliers without having a permit. The judgment became final. However, since Lieferheld briefly bought the plaintiffs’ company, it had little effect, except for legal uncertainty.

The standards of the ZAG are long, complicated and full of exceptions and other exceptions. In this case, it is hardly possible to make a sensible decision in this case whether contracts, business models and cash flows can/must be adapted or whether a very complex and complicated approval by BaFin could be useful. At the same time, however, a close examination should be carried out, because in the event of a breach of the ZAG, fines, prohibition orders and possibly even criminal proceedings are threatened; warnings from competitors.

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