'I Access Your Data You Access Mine'. Setting a Reciprocity Clause for the ‘Access to Account Rule’ in the Payment Services Market
28 Pages Posted: 25 Jun 2019
Date Written: June 20, 2019
Do we need pro-competitive regulation for Fintechs and in particular for digital payment services?
The 'access to account' rule (also known as XS2A rule) has been introduced by a much-commented Article of the EU Payment Services Directive 2 No. 2015/2366 to award so-called third party payment providers (TPPs) the right to freely access users’ payment accounts data, typically detained by incumbent banks to provide payment initiating services (PIS) or account information services (AIS). The stated goal of the rule is to let develop an infant industry: that of Fintech payment services.
The paper provides an analysis of the norm from a competition policy and regulatory perspectives. Because both can shape data governance in a substantive way, it is essential to keep their application consistent, and also, more generally, to allow a systematic coherence with EU rules on databases.
However, to level the playing field among all the market players involved, it is suggested that the norm is revisited to reflect two different possible relationships:
(i) between startup Fintechs and the banks; and
(ii) between digital conglomerates and the banks.
While in the first case (i), the XS2A rule should provide the broadest possible access to account data; in case (ii), a proposal to complement the XS2A rule with a ‘reciprocity clause’ is made with regard to behavioral data (pertaining to specific customers), that might increase the efficiency of the payment service provision.
The latter is meant to enhance the circulation of data among market participants while fostering competition among them and strengthening the overall proportionality of the XS2A rule.
Keywords: financial markets, banks, big data, AI, algorithms, access to account, privacy, database, competition, regulation
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