The Dutch competition authority (ACM) has decided to close its investigation into payment apps’ access to Apple’s Near-Field Communication (NFC) antenna. The ACM concludes that the EU Interchange Fee Regulation (IFR) does not provide a legal basis for its investigation.
The ACM’s press release can be found here.
As Bird & Bird commented when ACM announced its investigation in December 2020, article 8(6) of the IFR - which gives the holder of co-badged cards the ultimate choice as to which of the brands on the card should be used to make a payment – does not provide a sound legal basis to investigate access to the NFC antenna and investigation of access issues on the basis of competition law risks duplication or interference with the Commission’s ongoing investigation (click here for further details).
The ACM has now reached the same conclusion. In its press release the ACM writes that the IFR and more specifically article 8(6) IFR only provides a mandate if various payment apps are available on the market and not if there is only one on the market, such as in the Netherlands. The ACM notes that it will advocate for amending the PSD2 and introduction of the Digital Markets Act at EU level to create a legal basis for regulatory enforcement. ACM refers to the ongoing Commission investigation into access to NFC technology on the basis of competition law.
This conclusion by the ACM does not mean that Apple Pay is off the hook. The European Commission is still investigating the NFC antenna under competition law (see our previous alerts on this here and here). Also, Germany is in the process of changing its domestic legislation to open up access to the NFC antenna (see our previous alerts on this here and here)
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.
If you would like to receive our regular Payments alerts in your inbox, click here.
If you would like to read Bird & Bird’s previous alerts, please check out our Payments In Focus webpage here.