ACM study calls for regulation of Big Techs on payment market

According to the ACM, this calls for measures to maintain a level playing field for all providers of payment services and to prevent this market from tipping in the future. Immediately after publishing the market study, the ACM launched an investigation into payment apps’ ability to access NFC technology, including through the use of smartphones.

In recent years, an increasing number of Big Tech companies have started to offer payment-related services in the EU, attracting the attention of competition authorities and other regulators. The purpose of the ACM study, carried out at the request of the Ministry of Finance, is to examine the current role and potential impact of Big Tech companies’ activities in three specific sub-segments of the Dutch payment market: point of sale (POS) payments, online payments and payments between consumers.

The Big Tech companies subject to the ACM’s market study are Apple, Amazon, Facebook, Google, Ant Group, and Tencent.

According to the ACM, although Big Tech firms currently have a limited position in the Dutch payment market, use of their services is growing rapidly (Apple Pay is cited as an example). Each of the Big Tech companies subject to the study offer online payment solutions and services facilitating POS payments.

The market study reports that most Big Tech companies did not enter the market as payment service providers themselves, but instead chose to offer technical services in cooperation with and relying on existing payment infrastructure and applications provided by banks and other payment service providers. As a result, the ACM concludes that the access rules introduced by the second Payment Services Directive 2 (PSD2) are not the main driver behind market entry. According to the study, Big Tech companies instead became active in the payment space as a means to further expand and increase the attractiveness of their ecosystems. 

Risks of Big Tech firms on the payment market

The study identifies multiple potential threats to competition resulting from Big Techs firms’ entry into the payment market. According to the ACM, such firms may leverage their market power in other markets, causing the payment market to “tip”. The ACM is worried that once Big Tech firms establish a gatekeeper position on the payments market, they will engage in self-preferencing or exclusionary behaviour. The ACM also highlights concerns raised by traditional banks that they will lose customer contact to Big Tech firms, and that these firms will charge increasingly higher access fees for their services.

The market study focusses on four specific types of exclusionary behaviour. First, Big Tech firms could deny other payment service providers access to their platforms (or only allow access against unreasonable terms). Some banks, for example, claim that their choice to cooperate with Big Tech firms is driven by obstacles to rolling out their own services on Big Tech platforms. Second, bundling and tying would allow the Big Tech firms to leverage market power on a separate market to distort competition on the payment market. Third, Big Tech companies could use the technology of their platforms to favour their own services above those of competitors (known as self-preferencing). The question raised here is to what extent the Big Tech platforms compete with each other in their primary activities on their platforms, as some seem to complement each other (Apple and Amazon for example), making self-preferencing less likely. Lastly, to the extent Big Tech firms obtain a dominant position in the market, the ACM identifies potential abuse in the form of demanding excessive data and combining payment-related data with other data already in their possession, giving them an advantage over, for example, banks which have only payment data at their disposal.

Proposed solutions

Although the study does not find any current competition concerns on the Dutch payment market, the ACM stresses the importance of maintaining a level playing field in the future. It proposes two solutions to avoid any potential risk to competition on the payment market.

First, it suggests amending the PSD2 so that Big Tech firms that only facilitate payment services fall within the scope of the Directive if they obtain a gatekeeper position. According to the ACM, Big Tech firms should be subject to the same rules (e.g. access requirements) that currently apply to payment service providers, thereby preventing self-preferencing and maintaining a level playing field.

Second, the ACM suggests a new ex-ante tool for gatekeeping platforms. This is in line with the Commission proposal to introduce an ex-ante instrument as a new competition tool (see our newsletters from July 2020 and December 2020) and the joined proposal of the Dutch, Belgian and Luxembourg competition authorities supporting such an ex-ante tool.

Conclusion

The study seems to welcome Big Tech companies on the payment market, as long as a level playing field is maintained in the future. On the one hand, Big Tech firms act as suppliers facilitating the distribution and use of existing payment instruments issued by banks (Apple Pay provides an example). Interestingly, however, the ACM also contends that the services offered by Big Tech companies compete with those offered by banks (e.g. contactless payment cards).

The role and power of Big Tech firms in the digital economy remains a hotly debated topic. The interest in their role on the payment market fits into this broader debate and has already triggered further investigations. Based on the results of the market study, the ACM opened an antitrust investigation on 4 December 2020 into payments apps’ access to NFC communication, while the European Commission already started a formal investigation into Apple Pay and NFC restrictions in June 2020.

This article was published in the Competition Newsletter of January 2021. Other articles in this newsletter:

• (Geo)blockbuster: Canal+ ruling annuls commitment decision
• Commission evaluates Antitrust Damages Directive: to be continued
• Amsterdam District Court puts a halt to unlimited forum shopping
• Do the math: ACM publishes strategy on monitoring use algorithms