Danish Competition and Consumer Authority publishes first decision and injunction on discriminatory access to accounts maintained by a credit institution

By Scott McInnes, Ivan Sagál, Annette Printz Nielsen, Kristiina Lehvilä, Cathie-Rosalie Joly, Dr. Michael Juenemann, Konrad Siegler, Stefano Febbi, Karen Berg, Slawomir Szepietowski, Adrian Calvo, José Luis Lorente Howell, Hans Svensson, Trystan Tether

12-2019

On 4 December 2019, the Danish Competition and Consumer Authority (DCCA) published their first decision and injunction on discriminatory access to accounts maintained by a credit institution under Article 63(1) of the Danish Payments Act (DPA).

Pursuant to Article 63 of the DPA (transposing Article 36 of directive (EU) 2015/2366 of 25 November 2015 (PSD2) into Danish law), a credit institution shall provide access to payment institutions (PI) to payment account services on objective, non-discriminatory and proportionate basis. Such access shall be sufficiently extensive so as to allow PIs to provide payment services in an unhindered and efficient manner.

To our knowledge, this is the first decision adopted by a national competent authority (NCA) in relation to Article 36 of PSD2.

On 28 June 2019, the DCCA decided that the Danish credit institution, Arbejdernes Landsbank, (Bank) acted in breach of Article 63(1) of the DPA by setting discriminatory, non-transparent and/or disproportionate requirements to a PI's access to the Bank's payment account services. The Bank had required the PI to:

  • terminate a number of its customers following reasonable suspicion of illegal transactions, although this event of termination was not set out in the Bank's terms and conditions and/or proportionate.

  • reduce the number of its business customers registered outside of Denmark, and number of foreign business customer transactions, to a maximum of X% of the PI's total number of business customers / foreign transactions, although this requirement was not set out in the Bank's terms and conditions and/or proportionate.

  • terminate a proportion of its business connections being association customers registered outside of Denmark, whereas other customers of the Bank were allowed to accept association customers registered outside of Denmark under the Bank's general terms and conditions.

  • terminate a proportion of its business connections being association customers registered outside of Denmark or customers whose business primarily consisted of issuing, exchanging or other activities in relation to digital currencies, although this event of termination was set out in the Bank's terms and conditions and/or proportionate.
On this basis, the DCCA issued an injunction to the Bank requiring the Bank to provide access to payment accounts on objective, non-discriminatory and proportionate conditions.

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