Germany's 'Lex Apple Pay': Payment Services Regulation Overtakes Competition Enforcement

CRC TR 224 Discussion Paper Series 2020, final version JECLAP 12 (2021) 68-81

21 Pages Posted: 6 Aug 2020 Last revised: 3 Nov 2021

See all articles by Jens-Uwe Franck

Jens-Uwe Franck

University of Mannheim - Department of Law

Dimitrios Linardatos

University of Mannheim; University of Liechtenstein

Date Written: June 1, 2020

Abstract

As of January 2020, Section 58a of the German Payment Services Supervisory Act (PSSA) provides a right for payment service providers and e-money issuers to access technical infrastructure that contributes to mobile and internet-based payment services. This right of access is intended to promote technological innovation and competition in the consumers’ interests in having a wide choice among payment services, including competing solutions for mobile and internet-based payments. The provision has been dubbed ‘Lex Apple Pay’ as it seems to have been saliently motivated by the objective to give payment service providers the right of direct access to the NFC interfaces of Apple’s mobile devices. In enacting Section 58a PSSA, the German legislature has rushed forwards, overtaking the EU Commission’s ongoing competition investigation into Apple Pay as well as the pending reform of the German Competition Act, which is aimed precisely at operators of technological platforms, which enjoy a gatekeeper position. This article explores the scope of application and the statutory requirements of this right of access as well as available defences and possible legal barriers. We point out that, to restore a level playing field in the internal market, the natural option would be to further harmonize EU payment service regulation, including the availability of a right of access to technical infrastructure for mobile and internet-based payment services and e-money issuers.

Keywords: ‘Lex Apple Pay’; Technology Platforms; Antitrust; Payment Services Regulation; Mobile Payment; Access to NFC Interfaces; Wallet Apps; Internal Market Regulation

JEL Classification: K21, K22

Suggested Citation

Franck, Jens-Uwe and Linardatos, Dimitrios, Germany's 'Lex Apple Pay': Payment Services Regulation Overtakes Competition Enforcement (June 1, 2020). CRC TR 224 Discussion Paper Series 2020, final version JECLAP 12 (2021) 68-81, Available at SSRN: https://ssrn.com/abstract=3634484

Jens-Uwe Franck (Contact Author)

University of Mannheim - Department of Law ( email )

Schloss Westflügel
Mannheim, 68131
Germany

Dimitrios Linardatos

University of Mannheim ( email )

Schloss
Mannheim, 68163
Germany

University of Liechtenstein ( email )

Fuerst Franz Josef-Strasse
Vaduz, 9490
Liechtenstein

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