Services exempted from the scope of ZaDiG 2018 | FMA Österreich

Services exempted from the scope of ZaDiG 2018

Jump to: Footer

Here you can find detailed information about services that are exempted from the scope of ZaDiG 2018.

Limited networks

Under ZaDiG 2018 any service provider performing an activitiy pursuant to Article 3 para. 3 no. 11 lit. a or b ZaDiG 2018 where the total value of the payment transactions for the preceding 12 months exceeds Euro 1 million (threshold), is required to notify the FMA about this activity pursuant to Article 3 para. 4 ZaDiG 2018.

The provision for the exception for limited networks especially applies for store cards, fuel cards, membership cards, public transport cards, parcking tickets, meal vouchers or vouchers for specific services, provided that the corresponding conditions for the activity are met.

Further information about the goods or services that are addressed by Article 3 para. 3 no. 11 ZaDiG 2018 as well as issued relating to them can be found in the FMA’s Circular “01/2020 FMA Circular – Limited Networks – the notification obligation pursuant to Article 3 para. 4 ZaDiG 2018 Format: pdf“.

The notification must

  • contain a description of the goods or services offered and
  • state which exception (Article. 3 para 3 lit. a or b ZaDiG 2018) is being made use of for performing the activity.

For this purpose, the FMA has created a form Format: docx that may be submitted to the following e-mail address anzeige-begrenzte-netze@fma.gv.at.

In order to be ensure that notifications are processed quickly and effectively, you are requested to only use the form that has been made available.

The information that is to be submitted in accordance with Article 3 para. 4 ZaDiG 2018 (Company name, address, information about the type of activity that is being conducted, purpose of the issued payment instrument) are subsequently displayed in the Company Database (Article 13 para. 2 ZaDiG 2018).

The notification for making use of the exception pursuant to Article 3 para. 3 no. 11 ZaDiG 2018 must be made in a timely manner as defined in Article 3 para. 4 ZaDiG 2018. The FMA assumes that a notification has been made in a timely manner, in the case that it is submitted within 3 months following the total value of payment transactions in the preceding twelve months exceeding the EUR 1 million threshold for the first time.

The FMA checks whether the criteria for the exception stated in Article 3 para. 3 no. 11 lits. a or b ZaDiG 2018 are duly met based on the information submitted by the provider, and subsequently informs the provider about the outcome of this review.

In general there is only a one-off obligation to notify pursuant to Article 3 para. 4 ZaDiG 2018, unless there is a (significant) change in the area of deployment of the payment instrument that was initially notified (e.g. the range of goods or services being expanded) that may lead to a change in the legal assessment In such a case, a new notification pursuant to Article 3 para. 4 ZaDiG 2018 must be sent to the FMA.

Electronic Communications Networks or Services

Under Article 3 para. 3 no. 12 ZaDiG 2018 payment transactions do not constitute payment services pursuant to Article 1 para. 2 ZaDiG 2018, which are offered by a provider of electronic communications networks or services in addition to electronic communications services provided for a participant of the network or service, and which

  • are provided in conjunction with the acquisition of digital content and voice-based services, regardless of the device used to purchase or consume digital content, provided that the payment transactions are billed on the corresponding bill, or
  • are conducted from an electronic device or through one and which are billed on the corresponding bill as part of a charitable activity, or to purchase tickets,

provided that the value of an individual payment does not exceed EUR 50, and the cumulative value of payment transactions for an individual subscriber does not exceed EUR 300 per month (upper limit).

Under Article 4 no. 40 ZaDiG 2018 digital content means goods or services which are produced and supplied in digital form, the use or consumption of which is restricted to a technical device and which do not include in any way the use or consumption of physical goods or services.

The term “voice services”, unlike digital content is not legally defined, and covers however inter alia entertainment services (e.g. chat services) and information services (e.g. alerts about weather, sport results or stock markets, wake-up calls, speech-related services) as well as participation in television or radio programmes in the form of polls, competitions and live feedback.

By making use of the exception in Article 3 para. 3 no. 12 ZaDiG 2018 it means that the relevant entity shall not be allowed to provide an activity requiring a licence under ZaDiG 2018, and consequently is not subject to ongoing supervision by the FMA.

Under ZaDiG 2018 a service provider that exercises an activity pursuant to Article 3 para. 3 no. 12 ZaDiG 2018, is required to notify the FMA about this activity pursuant to Article 3 para. 5 ZaDiG 2018.

As a result of making use of the provision for the exception in Article 3 para. 3 no. 12 ZaDiG 2018 the affected service provider is moreover obliged to submit a opinion by an auditor on an annual basis to the FMA, from which it must be possible to ascertain that the notified activity is actually compatible with the upper limits determined in the provision on the exception.

A service provider wishing to invoke the exception under Article 3 para. 3 no. 12 ZaDiG 2018, is without exception subject under Article 3 para. 5 ZaDiG 2018 to a obligation to the notify the FMA.

The existing obligation to notify in accordance with Article 3 para. 5 ZaDiG 2018 is ultimately not dependent on the performance of a specific activity covered by an exception or on a specific threshold value being reached (e.g. The total value of payment transactions in the preceding twelve months).

All service providers are therefore required to observe the notification requirement set forth in Article 3 para. 5 ZaDiG 2018 that wish to make use of the exception for electronic communications networks or services set forth in Article 3 para. 3 no. 12 ZaDiG 2018. The obligation to notify is not linked to other conditions.

Service providers that are subject to a notification obligation pursuant to Article 3 para. 5 ZaDiG 2018, may also make use of a third party (e.g. a lawyer) to comply with this obligation. Responsibility for the timely and orderly submission of such a notification in all cases however remains with the relevant service provider.

Within the scope of the notification under Article 3 para. 5 ZaDiG 2018 the relevant service provider is merely asked to declare that it wishes to make used of the exception set forth in Article 3 para. 3 no. 12 ZaDiG 2018 and that the necessary conditions for doing so are met.

For this purpose, the FMA has created a form Format: docx that may be submitted to the following e-mail address anzeige-telekom-ausnahme@fma.gv.at.

In order to be ensure that notifications are processed quickly and effectively, you are requested to only use the form Format: docx that has been made available.

The information to be submitted in accordance with Article 3 para. 5 ZaDiG 2018 (Company name, address, information about making used of the provision for the exception in Article 3 para. 3 no. 12 ZaDiG 2018) will then be displayed in the Company Database (Article 13 para. 2 ZaDiG 2018).

The FMA is moreover also obliged to make the European Banking Authority (EBA) aware of the notifications received pursuant to Article 3 para. 5 ZaDiG 2018 (Article 13 para. 7 ZaDiG 2018). The making use of the provision for the exception to be submitted pursuant to Article 3 para. 3 no. 12 ZaDiG 2018 are subsequently included by EBA in the EBA Register and therefore will also be visible there.

The notification for making use of the exception pursuant to Article 3 para. 3 no. 12 ZaDiG 2018 must be made in a timely manner as defined in Article 3 para. 5 ZaDiG 2018. In the case of service providers that are already making used of the exception for electronic communications networks or services pursuant to Article 3 para. 3 no. 12 ZaDiG 2018, in order to satisfy this requirement, the notification must be received by the FMA by 31.12.2020 at the latest.

In the case of service providers wishing to make use of the exception at some point in the future, the notification must be received by the FMA within 3 months of the beginning to make use of the exception set forth in Article 3 para. 3 no. 12 ZaDiG 2018.

In the case that the notification is not made within the stipulated deadline, then the service provider is required to enclose an explanation for the delay in notifying the FMA.

Based on the explanation provided with the notification, the FMA assumes that the service provider in question fulfils the criteria for the exception pursuant to Article 3 para. 3 no. 12 ZaDiG 2018. The service provider then subsequently received a confirmation about the notification pursuant to Article 3 para. 5 ZaDiG 2018 having been made.

However, where grounds exist that suggest that the conditions for making use of the exception are potentially not met by the service provider, then the FMA reviews the submitted notification more closely. The FMA therefore explicitly reserves the right to request further information and documents about all details provided.

In the event that a service provider has already met the obligation to notify pursuant to Article 3 para. 5 ZaDiG 2018, then in general no further notification obligations exist regarding the exception pursuant to Article 3 para. 3 no. 12 ZaDiG 2018.

For as long as the service provider makes use of the exception, it however remains obligated to submit an opinion to the FMA on an annual basis about the observance of the upper limits listed in Article 3 para. 3 no. 12 ZaDiG 2018.

If a service provider no longer wishes to make use of the exception set forth in Article 3 para. 3 no. 12 ZaDiG 2018 in the future, due to it for example entering into a cooperation with a licensed payment service provider, or if it is generally considering to discontinue its activities, then the relevant service provider is also obliged to inform the FMA about such a step. In this case, the information in this regard must be submitted to the FMA within 14 days of discontinuation of making use of the exception under Article 3 para. 3 no. 12 ZaDiG 2018. Such information should also be submitted to the FMA using the e-mail address anzeige-telekom-ausnahme@fma.gv.at.

In the case that a service provider makes use of the exception under Article 3 para. 3 no. 12 ZaDiG 2018, then it is subsequently also required to submit an opinion by an auditor to the FMA on an annual basis.

From this opinion it must be clear that the notified activity is actually in line with the upper limits defined in the provision on the exception.

In this context, an upper limit of EUR 50 for individual payments, as well as a monthly cumulative limit of EUR 300 per participant has been defined in Article 3 para. 3 no. 12 ZaDiG 2018.

These statutory requirements can be met accordingly by means of a statistical approach based on valid historical billing data, with the observation of the cumulative threshold of EUR 300 being determined by means of the participant’s phone number and the respective service.

The submission of the annual opinion by the auditor to the FMA shall take place for the first time from 02.01.2021. The FMA as a rule assumes that a prompt submission has taken place when such a submission is made to the FMA by 31.03. of the respective calendar year (3 month deadline).

In the event that the annual opinion by the auditor is not made within the stipulated deadline, then the service provider is required to enclose an explanation for the delay in notifying the FMA.

The submission of the annual opinion by the auditor should also be sent to the FMA using the following e-mail address: anzeige-telekom-ausnahme@fma.gv.at.

Service providers may also make use of a third party (e.g. lawyer, auditor) for the submission of the auditor’s annual opinion, in order to comply with this obligation. The responsibility for the timely and orderly submission in all cases however remains with the relevant service provider.

Where a service provider makes use of the provision set forth in Article 3 para. 3 no. 12 ZaDiG 2018, without however fulfilling the necessary conditions for doing so, this this may lead to an administrative penalty for unauthorised business.

Where it arises from the FMA’s own findings or other evidence that the material conditions for making use of the provision for the exception are not fulfilled, then the service provider in question is deemed to be habitually providing a payment service as defined in Article 1 para. 2 ZaDiG 2018, without having the necessary authorisation to do so. This constitutes an administrative offence pursuant to Article 99 para. 1 ZaDiG 2018, which the FMA may punish with a fine of up to EUR 50,000.

If it is not completely clear whether the conditions of Article 2 para. 2 no. 12 ZaDiG 2018 are met, then prior to making use of the provision about the exception it is advised to make an enquiry to the FMA in order to clarify whether the requirements are actually met in relation to the provision for the exception for communications networks or services. Such an enquiry may be sent to the FMA’s postal address or electronically to anzeige-telekom-ausnahme@fma.gv.at.