4.2. Exclusion from the scope of Regulation (EU) 2023/1113 and derogations

PSPs and CASPs should set out in their policies and procedures how they will determine whether the conditions for the application of the exclusions or derogations set out in Article 2 of Regulation (EU) 2023/1113 are met. PSPs and CASPs that are unable to establish that those conditions are met should comply with Regulation (EU) 2023/1113 in respect of all transfers of funds and crypto-assets.

4.2.1. Determining whether a card, instrument or device is used exclusively to pay for goods or services as referred to in Article 2(3), point (a), and (5), point (b), of Reg-ulation (EU) 2023/1113

Transfer of funds and crypto-assets

PSPs and CASPs should treat a transfer of funds or crypto-assets as a payment for goods or services when the transfer is made from a customer (buyer) to a merchant (seller) in exchange for the purchase of goods or for the provision of services. To determine whether a card, instrument or device is used exclusively to pay for goods or services, PSPs and CASPs should establish that at least one of the following conditions is met:

• a) whether the functionality of the card, instrument or device used is restricted to pay for goods or services;
• b) whether a merchant categorisation code is assigned to customers, including payment card schemes’ Merchant Category Code (MCC), that is used to categorise the type of goods or services sold;
• c) whether the customer is engaged in economic or professional activity, irrespective of its legal form, using information collected for the purposes of Article 13 of Directive (EU) 2015/849, if available, or information accessible via third-party providers or in publicly available sources; and
• d) the PSP’s or CASP’s analysis of trends and behaviours, including transfer history and patterns, allows it to determine whether the payer and originator make payments for goods or services, or the payee and beneficiary receive payments for goods or services.

4.2.2. Linked transfers in relation to the EUR 1 000 threshold as referred to in Articles 2(5), point (c), 5(2), 6(2) and 7(3) of Regulation (EU) 2023/1113

Transfer of funds

PSPs should have policies and procedures in place to detect transfers that appear to be linked.

PSPs should treat transfers as linked that are:

• a) carried out in a single operation or in several transactions; and
• b) sent by the same payer to the same payee, within a short timeframe; or
• c) sent from one payer to different payees or from different payers to the same payee within a short timeframe; including cases where different accounts are used belonging to the same person or different transactions are made intended for the same person, where that information is known by the PSP.

PSPs should set out in their policies and procedures:

• a) what constitutes a short timeframe for different types of transfers; PSPs should deter-mine this timeframe in a way that is commensurate with the ML/TF risk to which their business is exposed, based on the risk assessments they have carried out in line with the EBA’s ML/TF Risk Factors Guidelines⁵ ;
• b) how they will identify attempts to circumvent the threshold or evade detection; and
• c) any other scenarios that might also give rise to linked transactions.

⁵ EBA/CP/2023/11.

PSPs should determine whether a transfer is linked the moment the transfer was ordered or initiated, taking into account its absolute values, regardless of any charges levied by the PSP.