Swiss Competition Commission investigates mobile payment apps

What has happened?

On 15 November 2018, the Swiss Competition Commission, Comco, announced an investigation into whether various Swiss financial firms agreed to boycott Apple Pay and Samsung Pay, in order to protect rival mobile payments app, TWINT. 

TWINT is a joint venture between: SIX; Worldline; and the six largest Swiss banks.  Comco suspects that five financial firms – Aduno, Credit Suisse, PostFinance, Swisscard and UBS – refused to allow their credit cards to be used with the rival mobile payments apps.   Comco has conducted inspections at the offices of those companies, as well as at TWINT, although it is not under investigation.

Credit Suisse has cast doubt on the allegations, indicating that it already allows its customers access to Apple Pay and Samsung Pay via its subsidiary, Swisscard.  UBS indicated that it had tried to reach an agreement with Apple Pay in 2016 without success.  TWINT indicated that it has made its own antitrust complaint against Apple, which it alleges prevents the trouble-free use of TWINT on IOS devices.

Why does this matter?

The case is one of a number of recent antitrust investigations into payment services and the fintech sector more broadly, in which established players face growing competitive threats from new entrants, as well regulatory initiatives, such as Open Banking and PSD2, to open up the sector to increased competition.   

For example, in October 2017, the European Commission confirmed that it was investigating the conduct of banks in a number of Member States, due to concerns that they were refusing to grant rivals access to bank customers’ account data, despite customer consent having been given.  In March 2018, the UK Payment Services Regulator also announced an antitrust investigation in the payments sector.

Comco’s investigation has a long way to go, and the allegations have already been questioned by some of the firms involved.  Nevertheless, the nature of Comco’s concerns are fairly typical of cases in this sector, which tend to focus on suspected collusive conduct of an exclusionary nature, for example: refusing to deal, as alleged in this case; or refusing to grant access to information, as alleged in the European Commission case.

However, such cases can be difficult to prove, as they require evidence inter alia: of a refusal to deal (or to grant access); that the refusal was motivated by an anti-competitive aim; and the parties under investigation shared that aim.  In the absence of clear evidence to that effect, the parties may be able to rebut the allegations, as they did successfully in the European Commission’s long-running Credit Default Swaps investigation, which alleged that various investment banks refused to grant licenses in order to foreclose access to the future market for exchange-traded credit derivatives.

What happens next?

Comco’s investigation is at an early stage, and therefore its focus will be on the collection and review of evidence, including information obtained during the various inspections and possible follow-up information requests. 

Some of the firms under investigation have already questioned the allegations, and will presumably therefore seek to defend any action against them.   

Comco has indicated that it will soon be reaching a decision in respect of TWINT’s parallel antitrust complaint against Apple.

How can Cadwalader help?

Cadwalader’s antitrust team is one of only a few to focus on the financial services sector. We regularly represent companies before the EU, UK and US antitrust authorities, and are specialists in offering ‘end-to-end’ advice on antitrust investigations and related litigation in this sector, working closely with our financial regulatory and white collar colleagues. 

If you would like to discuss the issues arising in this alert, or how we can help you more generally, please contact Vincent Brophy and Tom Bainbridge.

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