Take 2: Changes to German legislation allowing access to the iPhone's NFC antenna

Background

The popularity of mobile phone payments is increasing steadily. Most of those payment methods rely on the phone’s Near Field Communication (NFC) antenna (or chip) to transmit data between the phone and the merchant’s contactless terminal.

Most phone manufacturers leave the NFC interface “open” for payment service providers (PSPs). PSPs are therefore able to add payment functions via NFC to their banking apps. Apple, however, is said to have “closed” the interface to PSPs. Therefore, payment service providers are required to use Apple’s e-wallet service: ‘Apple Pay’ - and pay a fee for it.

Lex Apple Pay

To change this in January 2020, German lawmakers introduced a law as part of the German Payment Services Supervisory Act (Zahlungsdiensteaufsichtsgesetz - ZAG) to force access to NFC antenna (or interfaces in general). As the law mostly affects Apple, it has become commonly known as Lex Apple Pay. See our client alert from February 2020 here.

The law states that PSPs must be granted access to technical infrastructure (like the NFC antenna) by so called system enterprises, which enables them to provide payment and e-money services. In exchange, system enterprises are allowed to charge an “appropriate fee” for providing access to the infrastructure.

If there are both justified and proven security concerns, system enterprises are allowed to refuse the aforementioned access. Furthermore, if a system enterprise has less than 2 million registered users or if its infrastructure is used by ten or less PSPs, it is not subject to the obligation.

What happened after the law was passed

One of the main purposes of this law was to enable PSPs to access Apple’s NFC interface. German banks, especially German Sparkassen, were advocating for this law as they did not want to rely on Apple Pay. However, to date it is believed that no German bank has used the newly created options.

It is widely assumed that Apple’s “appropriate fee” for access to the technical infrastructure is similar to the fee charged for the use of Apple Pay, causing PSPs to prefer singing up for Apple Pay rather than using a different wallet. The term “appropriate fee” is quite vague and leaves a lot of uncertainty with the payment service providers. Currently, there is no case law which provides an indication as to what fee is “appropriate”. However, this does not necessarily mean that the law has no effect at all. Some have argued that Apple’s pricing policy has become more flexible because of this law.

It was believed that other EU countries may adopt similar legislation, but to date individual countries have not passed similar laws. However, the European Commission opened a formal antitrust investigation in June 2020 and considered regulating how phone manufactures grant access to payment service providers. This might result in EU wide legislation that incentivises PSPs to consider the possibility of using or create an e-wallet unrelated to Apple Pay.

Changes to Lex Apple Pay

From March 2022, changes to this German law will become applicable.

Under the changes law, system enterprises will no longer be allowed to charge an “appropriate fee” for providing access to the infrastructure. Instead, only a fee not exceeding the actual costs of the respective access may be charged by the system enterprise. While “actual costs” provides more clarity than “appropriate fee”, it is still open to interpretation. The legislative discussions provide more details than set out in the law. The lawmakers intention was not to create an access right which is uneconomical for the system enterprise. The official justification for the law as provided by the financial committee of the German Bundestag (Drs. 19/30443, page 79) says that the system enterprises may also include – to a reasonable extent; development costs associated with access in the actual costs.

Additionally, the extent to which infrastructure must be made accessible will increase: Prior to the change, system enterprises only had to grant appropriate access conditions, they will now be obliged to grant a standardised technical interface to all end devices (i.e. not only smartphones but also smart watches or smart speakers). Functional equality must be guaranteed; meaning that hardware components and authentication methods (like facial recognition, fingerprint sensor, iris scanner) must also be included.

In cases where system enterprises refuse access to the infrastructure, PSPs will be able to verify the rejection via an expert who can demand the information necessary for such review. The system enterprise should provide the expert with the information required for this review without undue delay upon request. The expert shall be bound to secrecy with regard to the information provided and shall not disclose it to the payment service provider or third parties.

Effects and what’s next?

There are still several months to go before the changes will enter into force It remains to be seen whether Lex Apple Pay 2 will have the desired effect of incentivising PSPs to create competing services to Apple Pay or whether the impact is as low as we have seen for Lex Apple Pay 1 . In any case, it will be interesting to see the other EU countries’ next steps and the outcome of the European Commission’s formal antitrust investigation.

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