Dutch competitors authority closes regulatory investigation into NFC antenna
The Dutch competition authority (Hot water) has decided to investigate the access of payment apps to Apple’s Near-Field Communication (NFC) Antenna. The ACM comes to the conclusion that the EU Interchange Fee Regulation (IFR) does not provide a legal basis for their investigation.
The ACM press release can be found here.
As Bird & Bird commented when ACM announced its IFR investigation 8 (6) in December 2020 – which gives co-badged cardholders the ultimate choice of which of the tokens on the card to use for a payment – not a solid one Legal basis for investigating access to the NFC antenna and investigating access issues on the basis of competition law risks duplicating or disrupting the Commission’s ongoing investigation (click here for more details).
The ACM has now come to the same conclusion. In its press release, the ACM writes that the IFR and in particular Article 8 (6) IFR only provides a mandate if different payment apps are available on the market and not if only one is on the market, as is the case in the Netherlands, for example . The ACM notes that it will advocate amending PSD2 and introducing the Digital Markets Act at EU level to provide a legal basis for regulatory enforcement. ACM draws attention to the Commission’s ongoing investigation into access to NFC technology based on competition law.