According to Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on Payment Services in the Internal Market (PSD2) ‘payment instrument’ is a personalised device(s) and/or set of procedures agreed between the payment service user and the payment service provider and used in order to initiate a payment order.
MiFID II does not provide a definition of instruments of payment, but specifies in Article 4(1)(44) that they are excluded from the scope of ‘transferable securities’.
Instruments of payment are also excluded from the scope of money-market instruments (Article 4(1)(17) MiFID II).
Annex 1 to the ESMA’s Advice of 9 January 2019 (ESMA50-157-1384) mentions that the majority of the EU national legal orders does not provide the legal definition of ‘instruments of payment’.
The countries that reported to have a national definition of ‘instruments of payment’ have transposed in their legislation the PSD2 provisions.
MiFID II and PSD2 clearly provide that instruments of payments are not securities.
As regards the interdependencies with the crypto-asset markets, the said Annex 1 to the ESMA’s Advice of 9 January 2019 (ESMA50-157-1384) observes that some EU National Competent Authorities (NCAs) highlighted that to be classified as instruments of payments, crypto-assets should be intended solely for payment purpose (without combining investment purposes).