Following an investigation into the role of major technology firms (Big techs) in the Dutch payment market (see our alert here), the ACM has announced a competition law investigation into payment apps’ access to the Near-Field Communication (NFC) antenna.

ACM’s press release can be found here.

The NFC antenna enables contactless payments using smartphones. As previously reported, Apple has placed a technical restriction on access to the NFC antenna which means that only cards stored in the Apple Pay wallet (as opposed to another e-wallet on the iPhone) can be used to make NFC payments. Apple’s practice is being investigated by DG Competition, resulted in the German legislator adopting legislation forcing Apple to give access to the NFC antenna, and the recent EC Digital Finance Strategy mentions that the EC may propose legislation forcing access to the NFC antenna  (see our previous alerts in this here and here). It is therefore surprising to see the ACM open a competition law investigation on the same topic as it would appear to be potentially duplicative.

In addition, Article 11(6) of Regulation 1/2003 on the implementation of the EU competition law rules states that “The initiation by the Commission of proceedings for the adoption of a decision … shall relieve the competition authorities of the Member States of their competence to apply [EU competition law]”. As a result, the ACM shouldn’t be investigating the lock on the iPhone’s NFC antenna which is already being investigated by the EC, unless of course the ACM intends to investigation something else.

In its press release, the ACM emphasises the freedom of consumers to choose their own method of payment. This would seem to be a reference to Article 8(6) of the EU Interchange Fee Regulation (IFR) that gives the holder of a co-badged cards the ultimate choice as to which of the brands on the card should be used to make a payment. The ACM happens to be the competent authority to enforce most (but not all) IFR provisions. Perhaps the ACM intends to focus on this topic instead? Although, to our knowledge, there is no obvious link between Article 8(6) IFR and the NFC antenna. We will just have to wait and see.

Should you have any questions about the above, please do not hesitate to contact one of the members of the Bird & Bird global payments team.

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