Opinion of the Advocate General — ECLI:EU:C:2023:742
Date: 2023-10-05
Language of the case: Lithuanian
Subject matter: Right of establishment;Free movement of capital;Internal market - Principles;Approximation of laws
Procedure: Reference for a preliminary ruling
Origin: Lithuania

Summary C-661/22–1 
Case C-661/22 
Summary of the request for a preliminary ruling pursuant to Article 98(1) of 
the Rules of Procedure of the Court of Justice  
Date lodged:  
20 October 2022 
Referring court:  
Lietuvos vyriausiasis administracinis teismas (Lithuania) 
Date of the decision to refer:  
19 October 2022 
Appellant (applicant at first instance):  
Bruc Bond UAB 
Other party to the appeal proceedings (defendant at first instance):  
Lietuvos bankas 
  
Subject matter of the main proceedings 
A dispute between Bruc Bond UAB (the ‘appellant’) and Lietuvos bankas (Bank 
of Lithuania) concerning the latter’s resolution to revoke the payment institution 
licence issued to Bruc Bond UAB (the ‘resolution’). 
Subject matter and legal basis of the reference 
Interpretation of: points 3 and 5 of Article 4 of Directive (EU) 2015/2366 of the 
European Parliament and of the Council of 25 November 2015 on payment 
services in the internal market, amending Directives 2002/65/EC, 2009/110/EC 
and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 
2007/64/EC; point 2 of Article 2 of Directive 2009/110/EC of the European 
Parliament and of the Council of 16 September 2009 on the taking up, pursuit and 
prudential supervision of the business of electronic money institutions amending 
Directives 2005/60/EC and 2006/48/EC and repealing Directive 2000/46/EC; third 
paragraph of Article 267 of Treaty on the Functioning of the European Union. 
EN 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-661/22 
 
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Question referred 
In circumstances such as those in the main proceedings, where a payment 
institution accepts funds without a specific payment order to transfer them on the 
same or following business day and the funds remain in the payment institution’s 
account intended for carrying out payment transactions for longer than the time 
limits for the execution of the payment service laid down by the legislation, are 
the actions of the payment institution to be regarded as: 
(a) a part of a payment service or a payment transaction, as defined in points 3 
and 5 of Article 4 of Directive (EU) 2015/2366 of the European Parliament and of 
the Council of 25 November 2015 on payment services in the internal market, 
amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation 
(EU) No 1093/2010, and repealing Directive 2007/64/EC, performed by the 
payment institution; or 
(b) the issuance of electronic money as defined in point 2 of Article 2 of 
Directive 2009/110/EC of the European Parliament and of the Council of 
16 September 2009 on the taking up, pursuit and prudential supervision of the 
business of electronic money institutions amending Directives 2005/60/EC and 
2006/48/EC and repealing Directive 2000/46/EC[?] 
Provisions of EU law cited 
1. Recitals 25 and 71, points 3, 4, 5 and 12 of Article 4, Article 18(3), 
Article 73(1) and Article 83 of Directive (EU) 2015/2366. 
2. Recitals 5 and 7, points 1, 2 and 3 of Article 2, Article 6(1), Article 10, 
Article 11(1) and (2) of Directive 2009/110/EC. 
3. Point 5 of Article 4 of Directive 2007/64/EC of the European Parliament and 
of the Council of 13 November 2007 on payment services in the internal market 
amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and 
repealing Directive 97/5/EC. 
4. Judgement of 16 January 2021 in Case C-389/17 Paysera LT, 
EU:C:2019:25, paragraphs 24, 25, 29 and 32-35. 
Provisions of national law and the case-law cited 
1. Article 2(11) and (40), Article 5, Article 6(3), Article 38(1), Article 42(2), 
Article 46(1) and (3) of the Lietuvos Respublikos mokėjimų įstatymas (Republic 
of Lithuania Law on Payments) (in the version applicable to the dispute, in force 
as from 20 October 2019). 
BRUC BOND 
 
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2. Article 4(3) and (5) of the Lietuvos Respublikos mokėjimo įstaigų įstatymas 
(Republic of Lithuania Law on Payment Institutions) (in the version applicable to 
the dispute, in force from 1 August 2018). 
3. Article 2(1), Article 5, Article 6(1) of the Lietuvos Respublikos elektroninių 
pinigų ir elektroninių pinigų įstaigų įstatymas (Republic of Lithuania Law on 
Electronic Money and Electronic Money Institutions) (in the version applicable to 
the dispute, in force from 1 August 2018). 
Brief summary of the facts and the main proceedings 
1 By the resolution, the Bank of Lithuania revoked the payment institution licence 
of Bruc Bond UAB which had entitled it to provide payment services referred to 
in Article 5(3) and (6) of the Law on Payments of the Republic of Lithuania 
(execution of payment transactions, including transfers of funds in a payment 
account with the payment service provider of the payment service user or with 
another payment service provider: execution of direct debits, including one-off 
direct debits, execution of payment transactions through a payment card or a 
similar device and/or execution of credit transfers, including standing orders and 
money transfers), as it retained the customers’ funds for longer than the time 
required for the execution of the payment transactions or for technical reasons, 
and was, therefore, issuing electronic money without being an issuer of electronic 
money, and, therefore, infringed the requirements of the Republic of Lithuania 
Law on Electronic Money and Electronic Money Institutions. 
2 The Bank of Lithuania established that as from 20 February 2017, the accounts of 
six of the appellant’s customers were credited with funds received by customers 
(incoming payments) without a specific purpose of payment, and that transfers of 
funds (outgoing payments) had, for several days (or, in some cases, for months) 
not taken place, with the exception of debiting the appellant’s fees, although the 
appellant’s business plan indicated that it does not control the funds for longer 
than necessary to carry out the transactions, and that the funds are held in the 
account for no longer than 48 hours, and are returned to the payer if there is no 
payment order within 48 hours. In the case in the main proceedings, it was 
established that in some cases Bruc Bond UAB was unable to execute payment 
orders due to customers’ failure to specify the purpose of payment. There is no 
dispute between the parties that the appellant controlled the funds longer than 
necessary. Furthermore, it has been established that the appellant has returned all 
the funds transferred to it without a payment order. 
3 The appellant appealed against the resolution of the Bank of Lithuania to the 
Vilniaus apygardos administracinis teismas (Regional Administrative Court, 
Vilnius), which dismissed the appeal on 8 June 2021. It subsequently applied to 
the Lietuvos vyriausiasis administracinis teismas (Supreme Administrative Court 
of Lithuania) (the referring court) to have the judgment mentioned above set aside 
and to have a new judgment made, upholding its appeal. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-661/22 
 
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Main arguments of the parties to the main proceedings 
4 The appellant states that the court of first instance was wrong to find that it issued 
electronic money, as it unlawfully set out conditions for the issue of electronic 
money which are not laid down in the Law on Electronic Money and Electronic 
Money Institutions, which is contrary to the interpretation given by the Court of 
Justice in its judgment of 16 January 2021 in Case Paysera LT that payment 
transactions can be regarded as relating to the issuance of electronic money only 
where the payment service is provided by an electronic services institution and is 
provided for the purpose of issuing or redeeming the par value of the electronic 
service. The appellant takes the view that, where a payment service is not 
provided by an electronic money institution and the issuance or redemption of the 
par value of the electronic services is not the purpose of the service provided, that 
service does not constitute an activity related to the issuance of electronic money. 
5 The Bank of Lithuania bases its conclusion that the appellant issued electronic 
money on its position as the Supervision Board in respect of funds held in 
payment accounts, which states that a payment institution may accept funds into a 
payment account opened by it only in conjunction with a payment order which 
must be executed within the time limits laid down in the Law on Payments and 
must take sufficient measures to ensure that funds received from third parties into 
the payment account of the customer of the payment institution are not held for 
longer than is necessary for the payments to be made, otherwise, the funds held in 
the payment account of the payment institution are to be regarded as deposits or 
other repayable funds or electronic money. 
6 The Bank of Lithuania also relies on the European Commission’s letter of 
26 October 2015, which states that payment institutions are only permitted to hold 
payment accounts and to receive funds from consumers to provide those payment 
services; unlike deposits, funds should not be under the control of the payment 
institution for longer than is necessary for operational and technical reasons in 
order to provide the relevant payment service; the fact that electronic money funds 
are held in the form of a cash value means that the funds are controlled by the 
issuer for the entire duration of the contract (however, the cash value can be 
redeemed at any time at the request of the holder of electronic money), whereas 
that is not so in respect of an ordinary payment account, where the funds can only 
be transferred to another account or withdrawn, at any time, from the account 
(without additional charges). 
Brief summary of the reasons for the request for a preliminary ruling 
7 The referring court submits that Directive 2015/2366 clearly states that a payment 
transaction carried out by a payment institution includes the act, initiated by the 
payer or on his [or her] behalf or by the payee, of placing, transferring or 
withdrawing funds, i.e. the holding of funds is not included in the payment 
transaction. Article 46 of the Law on Payments and Article 83 of [Directive 
BRUC BOND 
 
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2015/2366] deal with the time limits for the execution of payment services, and 
Article 38 of the Law on Payments and Article 73 of [Directive 2015/2366] 
provide that in the case of an unauthorised payment transaction, the payment 
service provider must refund the payer the amount of the unauthorised payment 
transaction immediately (no later than by the end of the following business day 
after noting or being notified of the transaction). 
8 The referring court points out that the provision of technical capabilities for the 
customers of payment institutions to provide funds and to hold them in the 
accounts of the payment institution for longer than is necessary to execute 
payment transactions or for technical reasons falls within the scope of the issuance 
of electronic money, as, in accordance with point 2 of Article 2 of Directive 
2009/110, electronic money is defined as electronically, including magnetically, 
stored monetary value as represented by a claim on the issuer which is issued on 
receipt of funds for the purpose of making payment transactions, i.e. electronic 
money relates to the holding thereof *. 
9 In its judgment of 16 January 2021 in Case Paysera LT, the Court of Justice ruled 
that Article 5(2) of Directive 2009/110 must be interpreted as meaning that 
services provided by electronic money institutions in payment transactions 
constitute activities linked to the issuance of electronic money, within the meaning 
of that provision, if those services trigger the issuance or redemption of electronic 
money in a single payment transaction. It also noted that the concept of the 
‘issuance of electronic money’ is not defined by Directive 2009/110, and a 
payment service provided for the purpose of enabling the redemption of the par 
value of the electronic money constitutes an activity linked to the issuance of 
electronic money. The Court of Justice pointed out that, as is clear from point 3 of 
Article 4, read in conjunction with the Annex to that directive, the execution of a 
payment transaction, including the transfer of funds to a payment account, 
constitutes a payment service. In so far as the funds are redeemed solely for the 
purpose of their transfer and in a single payment transaction a service may be 
regarded as being linked to the issuance of electronic money within the meaning 
of Article 5(2) of Directive 2009/110. A transaction whereby, at the request of the 
seller, the buyer of the goods or services pays for them by making a transfer of 
funds for that purpose to the electronic money institution, which, upon receipt of 
the funds, issues electronic money for the benefit of the seller (electronic money 
holder), is directly linked to the issuance of electronic money, if the transfer of 
funds automatically triggers, in a single payment transaction, the issuance of 
electronic money. The transfer of funds is thus linked to the issuance of electronic 
money. 
10 However, in its judgment in Case Paysera LT, the Court of Justice did not assess 
the difference between the activities of payment institutions and those of 
electronic money institutions, but rather whether payment services provided by an 
 
* Translator’s note: It is believed that ‘thereof’ refers to monetary value, rather than e.g. electronic 
money. 
SUMMARY OF THE REQUEST FOR A PRELIMINARY RULING – CASE C-661/22 
 
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electronic services institution should be regarded as services relating to the 
issuance of electronic money. 
11 The referring court considers that it is apparent from the provisions of Directives 
2009/110 and 2015/2366 that the nature of the services provided by the electronic 
money issuer and the nature of the payment transaction carried out by the payment 
institution are similar. The funds for payment transactions can be electronic 
money and the issuer of electronic money undertakes, at the customer’s request, to 
deliver the funds to the payee who accepts the electronic money (point 2 of 
Article 2 of Directive 2009/110). In the case of a payment transaction carried out 
by a payment institution, the payment service provider must also deliver the funds 
to the payee (point 5 of Article 4 of Directive 2015/2366). 
12 The national court maintains that, on the basis of the judgment in Paysera LT, the 
issuance of electronic money is not a spontaneous activity, but is carried out for 
the purpose of enabling the redemption of the par value of the electronic money. 
The case in the main proceedings involves the situation where the appellant did 
not intend to issue electronic money, but if the customers failed to specify the 
purpose of the payment transfers, the funds were held for a certain period of time 
(longer than necessary to execute the payment transactions) and only refunded to 
the customers after a certain period of time. It is apparent from the facts of the 
case that the refunding of the amounts of the unauthorised payment transactions 
took a significant amount of time and was carried out over a period of time longer 
than permitted for the execution of the payment transactions, that is to say, it was 
not carried out immediately in accordance with Article 73 of Directive 2015/2366. 
13 In the light of the foregoing, the question from the national court is whether, in 
circumstances such as those in the main proceedings, the actions of a payment 
institution are to be regarded as part of a payment service or of a payment 
transaction executed by the payment institution or whether those actions are to be 
regarded as the issuance of electronic money. The answer to the question referred 
is of fundamental importance to the case in the main proceedings, as it would 
enable (1) a clear decision to be taken on the assessment of the services provided 
by payment institutions and of the situation in which a payment institution fails to 
execute a payment order within the time limits laid down in the legislation in 
accordance with points 3 and 5 of Article 4 of Directive 2015/2366 and point 2 of 
Article 2 of Directive 2009/110; 2) the establishment of uniform case-law of the 
national courts, and 3) the interpretation and application of the rules of national 
law to the disputed legal relationship in order to determine the appellant’s 
obligations related to the provision of payment services, thus ensuring the 
effectiveness of European Union law.