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Restriction of online payment services by German banking industry in violation of competition law

Date of issue: 05.07.2016

The Bundeskartellamt has declared certain rules in the online banking conditions of the German Banking Industry Committee (Deutsche Kreditwirtschaft) as illegal. The authority holds the view that the banks' general terms and conditions restrict competition between the different providers of payment services in the Internet and violate German and European competition law.

Andreas Mundt, President of the Bundeskartellamt: "The online banking conditions of the German Banking Industry Committee hinder the offer of new and innovative services in the growing market for payment services in the e-commerce sector. In essence, it is about whether non-bank payment services can also use PINs and TANs. We have taken careful consideration of the justified interest of the banking industry that security in online banking has to be safeguarded. However, the rules currently used cannot be considered as a necessary part of a consistent security concept of the banks and they impede non-bank competitors."

The German Banking Industry Committee and its banking associations, National Association of German Cooperative Banks (Bundesverband der Volks- und Raiffeisenbanken e.V., BVR), German Savings Bank Association (Deutscher Sparkassen- und Giroverband e.V., DSGV) and the Association of German Banks (Bundesverband deutscher Banken e.V., BdB) have for many years used jointly agreed General Terms and Conditions which also include the "Special Conditions for Online Banking". The General Terms and Conditions are decided by the members of the German Banking Industry Committee and recommended by the leading banking associations for use by their member banks. They are used by all the banks active in Germany.

The illegal practice of the German Banking Industry which the authority has established in its investigations concerns the rules applied in the "special conditions for online banking" which are imposed on online banking customers for the use of the personal security features PIN (personal identification number) and TAN (transaction authentication number). According to these rules, online banking customers may not use their PIN and TAN in non-bank payment systems to allow access to third party systems, which include so-called payment initiation services.

This rule has significantly impeded and continues to hinder the use of non-bank and innovative payment solutions for the purchase of goods or services in the Internet. The providers of these payment solutions have developed an offer of services which provides a lower-priced alternative to the payment solutions already established in the market and have responded to the needs of online customers and sellers for a cheap and fast payment option.

The Bundeskartellamt has limited its intervention to declaring the illegality of the clauses objected to. At the request of the parties concerned the Bundeskartellamt has suspended the immediate enforceability of its decision. This means that in the enforcement of the decision and termination of the conduct objected to the parties' scope of action is not restricted by provisions imposed by the authority and tight deadlines. On the other hand the limits of their scope of action under competition law are clearly defined. The parallel ongoing civil proceedings, some of which have been suspended, and deliberations on a reform of the law governing this sector will benefit from the Bundeskartellamt's detailed legal interpretation based on its official investigations.

Background:

Rules for the activity of non-bank payment solution providers are currently undergoing a European legislative process: The relevant European Payment Services Directive (PSD) covering this area of activity was amended in 2015 and is to be implemented into national law by the beginning of 2018. Its implementation will create a standard legal framework in which the providers of payment initiation services will be subject to state control and have to observe standard technical regulation standards in the performance of their services.




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