Payment Services Directive 2, Open Banking and Its Implications on Competition Law

Authors: Mikko Huimala and Pauliina Sutinen

The Payment Services Directive 2 (the “PSD2”) introduces a novel supply obligation for account banks to supply access to account data for third-party service providers of, for instance, account information services or payment initiation services. However, this obligation is subject to an explicit consent by the customer, and the account bank may refuse to supply access if such refusal is justified under the PSD2. Besides account data, banks are also planning to open access to data outside the PSD2 as part of their so-called open banking systems referring to any data other than account data.

In this setting, competition law considerations are also relevant in parallel to the PSD2 regulations. For example, a bank’s refusal to supply access to account data in certain circumstances might constitute an abuse of dominant position. In the open banking system, the following situations should be distinguished:

Obligation to Supply Access to Account Data Under the PSD2

• Regulatory obligation for account banks to supply access to account data

• The exceptions to account banks’ obligation to supply access to account data may be of limited relevance in practice

• The access obligations apply regardless of market position

• Sanctions under the PSD2 applied by financial regulatory authorities in parallel to potential competition law consequences enforced by the competition authorities

Other Banking Data Outside the PSD2 – Higher Threshold for Forced Data Sharing Under Competition Law

• No specific regulatory obligations for banks to supply data – general competition law provisions apply (prohibition of restrictive agreements and abuse of dominant position)

• Higher burden of proof for the competition authorities to prove refusal to supply. In addition to establishing a dominant position, there is a need to examine whether the foreclosure is anti-competitive, including indispensability of access to data

• Only in very specific circumstances, access must be provided on a non-discriminatory basis for third-party service providers

Future Considerations

The market practice on the payment services market will evolve once the transitional period of the PSD2 ends on 14 September 2019, and the market players will need to assess a range of financial regulations and competition law perspectives going forward.

Hannes Snellman Assists with Questions Related to the PSD2 and Its Implications on Competition Law

Hannes Snellman’s Competition & Procurement and Financial Services Regulation teams are happy to discuss any questions or issues related the PSD2 and/or its implications on competition law.