End of last year I reported on the introduction of a new provision in the German ZAG aka PSSA, Section 58a PSSA. You will find this regulation there cited in its entirety. It contains provisions on sector-specific access regulation. It is intended to overcome competitive abuses in the field of mobile payment solutions. This regulation is also called “Lex Apple Pay”because it is politically directed primarily against the large technology corporation, which had caused quite a stir in the banking world with its own payment solution. But individual case laws are on the one hand inadmissible from a German constitutional perspective. On the other hand, the wording of the provision gives more far-reaching interpretations and is not limited to Apple. Because it is aimed at so-called “undertakings”. But what are these system undertakings? Can these even be identified? What criteria apply?
First the wording: Section 58a (1) sentence 1 PSSA contains a legal definition of a system undertaking at the very beginning. Accordingly, the undertakings in question must be those which, by providing technical infrastructure services, contribute to the provision of payment services or the conduct of e-money business within the country. Divided into its components, it looks like this:
- technical infrastructure services
- contribution to the provision of payment services or the conduct of e-money business
- in domestic situations
At first glance, this seems rather easy to understand. Something of Apple Pay is not yet apparent. Moreover, as Susanne Grohé rightly says on paytechlaw.com, numerous technical services could be covered, provided they meet the requirements of the legal definition. A car’s operating system could fall under this category if payments can be initiated via the cockpit. This, however, does not apply if the cockpit only displays the smartphone application that controls the payment process on its own. Why is that? Because although this is a technical infrastructure service, it does not contribute to the provision of payment services or the conduct of e-money transactions. It does not matter what a technical infrastructure service is at all.
The relevant characteristic in practice is the word “contributes”. This operator allows technical infrastructure services to be divided into relevant and irrelevant according to this regulation. Only those infrastructure services that also contribute to the provision of payment services or the conduct of electronic money business within the meaning of this provision should be covered. But how is this operator to be interpreted legally? First, the wording suggests that there should be effective support for these two services. In other words, not just suitability, but the services must have been opened by the company for the PSSA services. It is obvious that not every possible causality is already a “contribution”. Rather, the characteristic would have to be interpreted according to the purpose of the provision, i.e. protection of competition or, conversely, prevention of anticompetitive foreclosure practices. In practice, some more dogmatic aspects from the antitrust law, abusive refusal to deal and the Essential Facilities doctrine will also play a role here. A relevant contribution of infrastructure would exist if, without it, the undertakings concerned would be excluded from competition. This is also in line with the purpose of the provision of a sector-specific access regime. The provision is therefore not intended to be a general “platform buster”, but rather to grant a specific access claim. A further corrective measure is the de minimis rule included in Section 58 (2) PSSA. It excludes certain small enterprises from the scope of the access regime. These are less likely to have negative effects on competition.
For the application of these rules, this means that the competition aspects must be taken into account. The provisions therefore need to be interpreted in the light of their competitive purpose. Some of the experience gained in antitrust law, such as the importance of infrastructures, platforms or other resources, can be transferred. Thus, the scope of this access provision can be viewed according to regulatory standards. The further shaping of the access conditions is something that is also often found in my antitrust advice on digital platforms.