Does holding and forwarding client funds in a construction security deposit arrangement amount to a payment service? On 16 July 2026 (Betaal Garant Nederland CV v De Nederlandsche Bank NV, C-51/25), the Court of Justice of the European Union answered no – at least regarding credit transfers.

The dispute arose between Betaal Garant Nederland CV (Betaal Garant), a Netherlands company that provides guarantees and security deposits to individuals in connection with building construction projects, and De Nederlandsche Bank NV, the Dutch financial supervisory authority. The supervisor had imposed an order for periodic penalty payments on Betaal Garant for infringing the national legislation transposing PSD2 – specifically, for carrying on the activity of a payment service provider without authorisation.

Under the Dutch Civil Code, a developer in a construction project relationship is obliged to make payments only in amounts corresponding to the progress of the building work or the value of the assets transferred to it. To secure the fulfilment of those obligations, however, the parties may agree that the developer deposit up to 10% of the price of the work with a notary, or provide an equivalent guarantee for that amount.

Betaal Garant offered precisely such an “equivalent guarantee”: it collected clients’ funds into a deposit account and released them to the contractor once the contractor had met all predetermined requirements. The Dutch supervisor argued that, by offering this security deposit product, Betaal Garant was in breach of the prohibition on carrying on the activity of a payment service provider (PSP) without authorisation under the national law transposing PSD2.

The Court however held that an intermediary receiving client funds and forwarding them to a contractor upon meeting predetermined conditions does not execute a “credit transfer” within the meaning of PSD2. The ruling relied on three cumulative circumstances:

  • No payment accounts were held in the clients’ names. Funds sat in an account of the intermediary with a third-party PSP.
  • The intermediary did not itself execute the transfers – the account-holding PSPs did.
  • The fund flows were ancillary to a primary service falling outside PSD2.

Before the ruling, national authorities in the EU commonly treated such intermediaries as PSPs. But because the CJEU’s rulings bind all Member States, those authorities will now have to re-evaluate their positions.

Neither the PSR nor the PSD3 draft addresses the ruling: the current public texts predate the judgment. Nothing in the drafts, however, suggests a deliberate move in the opposite direction.

Against that background, intermediaries currently authorised under PSD2 whose receipt and forwarding of funds is ancillary to another service outside the directive should test their model against the three features above and consider whether reclassification outside PSD2 (and later the PSR/PSD3) is supportable. One question nonetheless remains open: at what point a fund-relaying service ceases to be ancillary, so that the intermediary does require authorisation as a PSP?

Have more questions? Contact Donatas Šliora.