New ECJ ruling – Receiving funds does not automatically constitute the provision of a payment service

Yesterday, 16 July 2026, the European Court of Justice (ECJ) handed down an important judgement in Case C-51/25 (Betaal Garant Nederland CV v De Nederlandsche Bank NV) which clarifies the scope of PSD2.

We have summarised the facts of the case, the reasoning of the judges and the ruling's significance for you:

The facts

Betaal Garant offers a performance guarantee product in the context of Dutch construction contracts. The client pays a sum (usually 6 per cent of the contract price) to a foundation affiliated with Betaal Garant. Once the works have been completed to the client’s satisfaction, the foundation instructs its bank to transfer the sum to the contractor.

De Nederlandsche Bank (DNB) took the view that this amounted to an unlicensed payment service.

However, the ECJ did not concur with this view, for the following reasons:

Reasoning of the ECJ

The ECJ bases its reasoning in the judgment on the following three pillars:

• Wording: A transfer within the meaning of PSD2 requires the payment service provider to hold the payer’s payment account. Betaal Garant does not hold such accounts. When the foundation instructs its bank to pay the contractor, the foundation is the payer, not the executing payment service provider. This role is performed by the banks on both sides.

• Context: The authorisation, supervision and liability requirements of PSD2 are designed for undertakings whose main business activity consists of the provision of payment services. If money transfers are merely ancillary activities to a separate main activity – in this case, the provision of an equivalent guarantee under Dutch law – the application of these strict rules is both disproportionate and not covered by the wording of the Directive.

• Purpose: Crucially, the ECJ has confirmed that consumer protection – however central it may be to PSD2 – cannot justify interpreting legal definitions beyond their literal meaning. This would itself undermine the legal certainty that the Directive is intended to ensure.

Why is the judgement significant?

Although the CJEU’s judgement comes as no surprise to us, it does now confirm the views expressed in the legal literature that mere involvement in the movement of funds does not trigger a PSD2 licensing requirement.

The decisive factor is whether the company itself maintains payment accounts and carries out transfers as its main activity. Incidental payment flows – embedded within a broader guarantee, trust or security structure – do not fall within the scope of PSD2. This is likely to be relevant for the interpretation of PSD3/PSR as well.