As legal counsel for COCOO, an organization dedicated to enforcing competition law, I have carefully reviewed the information regarding price interventions in the card market, particularly focusing on the European Commission’s (EC) actions and their implications. Below is a detailed analysis addressing your queries:
1. Potential Entities for Filing Complaints:
- European Commission (EC): The EC’s implementation of price interventions, such as interchange fee caps and surcharge bans, has been criticized for lacking clear criteria and periodic reviews.
- Member State Authorities (e.g., Spain): National authorities responsible for enforcing these interventions may also be subject to scrutiny if they have implemented measures without adequate assessment of their impact on competition and consumers.
2. Grounds and Supporting Evidence for Complaints:
- Lack of Clear Criteria and Justification: The EC’s price interventions reportedly do not stipulate clear criteria for their justification or duration, nor require periodic reviews. This lack of transparency can lead to inefficiencies and potential market distortions.
- Potential Negative Impact on Consumers: The EC has been unable to demonstrate that the positive effects of certain interventions, particularly those related to card payments, clearly outweigh the negative consequences for consumers.
- Insufficient Monitoring and Data Access: The absence of an effective monitoring system and lack of access to relevant data hinder the assessment of the impact of these interventions, raising concerns about their effectiveness and unintended consequences.
3. Appropriate Forums for Lodging Complaints:
- European Ombudsman: Given that the complaints pertain to the actions of the European Commission, the European Ombudsman is the appropriate body to address issues related to maladministration within EU institutions.
- European Court of Justice (ECJ): For legal challenges concerning the validity or application of EU measures, cases can be brought before the ECJ.
Analysis of Harm and Time Limits:
- Type of Harm: Potential market distortions, inefficiencies, and adverse effects on consumers due to poorly designed price interventions.
- Date Harm Started: The specific dates would correspond to the implementation dates of the respective price interventions.
- Time Limit to File a Complaint or Claim for Damages: Under EU law, actions for annulment must be brought within two months of the publication of the measure, while claims for damages have a five-year limitation period from the date the damage occurred.
- Perpetrators and Victims:
- Perpetrators: European Commission and relevant national authorities responsible for implementing the interventions.
- Victims: Consumers, merchants, and potentially other market participants adversely affected by the interventions.
Assessment of Time Limits for Claims:
- If the price interventions were implemented within the past five years, there may still be an opportunity to file claims for damages. However, for actions seeking annulment of the measures, the two-month limitation period has likely expired.
Potential Reasons for Lack of Claims:
- Lack of Awareness: Victims may be unaware of the negative impacts or their rights to challenge the measures.
- Collective Action Challenges: Individual consumers or taxpayers may lack the standing or resources to initiate claims on behalf of a broader group.
- Perceived Futility: There may be a perception that challenging EU institutions is unlikely to succeed.
Role of COCOO:
- COCOO, as an organization dedicated to upholding competition law and protecting public interest, is well-positioned to advocate on behalf of consumers and the public. By leveraging its standing, COCOO can initiate actions to address potential competition violations and seek remedies for the harm caused.
Conclusion:
While the window for certain legal actions may have closed, there remains an opportunity for COCOO to pursue claims for damages resulting from the EC’s price interventions, provided they fall within the applicable limitation periods. By acting on behalf of affected consumers and the public interest, COCOO can address potential competition violations and seek appropriate remedies.
Note: This analysis is based on the information available as of January 12, 2025. For precise legal advice, further detailed examination of the specific interventions and their implementation dates is recommended
i ask:
you are the lawyer of the cocoo, an organisation that enforces competition law. read the attachment in depth, looking for points of law and points of fact, and insights into actual or potential competition violations. what companies or organisations (example, the eu commission) can we file a complaint about?. For example, the the commission fail to enforce competition law, by tacking any potential competition violations?. Who was harmed as a result?: the public interest, consumers, competitors? what were the harms? any negative externalities?. before you give an answer, go online and browse for relevant information: legal precedents, news, insights, etc to strengthen our legal position and evidence…..READ THE ATTACHMENT AND GIVE ME A FULL LIST OF COMPANIES AND ORGANISATIONS THAT HARM COMPETITION LAW. WE MUST COMPLAIN ABOUT THEM. WHAT HARMS WERE INFLICTED? ARE THE HARMS ONGOING? NAME THE PERPETRATORS OF THOSE HARMS TO COMPETITION LAW, CONSUMER LAW, AND PUBLIC INTEREST
The audit report identifies several companies and organizations responsible for anti-competitive behavior or for failures in ensuring fair competition in the EU’s digital payments market. The following entities and associated harms to competition, consumer interests, and the public interest have been detailed:
1. Visa and Mastercard (International Card Schemes)
- Harm to Competition: High market share (90%) in cross-border payment markets creates significant barriers to entry, fostering limited competition.
- Consumer Harm: Elevated interchange fees lead to higher merchant service charges, ultimately borne by consumers.
- Ongoing Harms: Price interventions, such as interchange fee caps, are not consistently reviewed, leading to potential distortions in the market.
2. Payment Service Providers (PSPs)
- Examples: Major PSPs across the EU include banks and specialized payment institutions.
- Harm to Competition: Lack of standardization in open banking interfaces stifles competition, particularly affecting small third-party providers.
- Consumer/Public Harm: Reduced innovation and fragmented market create higher costs and less accessible payment options.
3. The European Commission
- Harm to Competition and Public Interest: Delays in reviewing and implementing regulatory frameworks, such as the Payment Services Directive (PSD2), and lack of enforcement in addressing discriminatory payment account practices.
- Consumer/Public Harm: Consumers and businesses continue to face barriers in cross-border payments, leading to inefficiencies and increased costs.
4. National Card Schemes
- Examples: Bancontact (Belgium), CB (France), Girocard (Germany).
- Harm to Competition: These schemes dominate domestic markets and resist integration with international standards, creating fragmented markets that impede cross-border competition.
5. European Banking Authority (EBA)
- Harm to Competition: Insufficient guidance and supervision of open banking frameworks hinder consistent implementation.
- Consumer/Public Harm: A lack of reliable data impairs the ability to assess the effectiveness of competition and consumer protection measures.
Summary of Harms:
- To Consumers: Higher prices, reduced access to innovative payment solutions.
- To Competition: Barriers to entry, limited interoperability of payment systems.
- To Public Interest: Undermined goals of a unified and efficient digital market in the EU.
Recommendations for Complaints:
- File complaints against Visa, Mastercard, and dominant PSPs for anti-competitive practices.
- Advocate for stronger enforcement by the European Commission and EBA to address regulatory gaps and monitoring deficiencies.
finextra.com: >> has raised concerns over how the EU goes about price interventions in the card market and its approach to open banking data sharing. Digital payments for retail sales in the EU more than doubled in value between 2017 and 2023, surpassing €1 trillion. These digital payments are considered crucial for the EU’s internal market to function smoothly, especially across borders, meaning that the body has responsibility for ensuring that they operate efficiently and effectively. In a report, the European Court of Auditors says that EU’s approach to digital payments has helped to make them “safer, faster and cheaper for users”. However, the report raises concerns about the EU’s approach to price interventions when it comes to the interchange fee cap for card payments and the surcharge ban on card and Sepa payments. Ildikó Gáll-Pelcz, ECA Member in charge of the audit, says: “We found that the basic legal acts on digital payments do not stipulate clear criteria for assessing whether price interventions are justified, or how long they should apply. There are also no requirements for periodic reviews. “For some of the interventions linked to card payments, the European Commission could not demonstrate that the positive effects for consumers clearly outweigh the negative ones.” In addition, the impact of the EU’s digital-payment policies remains largely unknown because the Commission has not put in place an effective monitoring system and, more importantly, lacks access to the relevant data, says the report. Elsewhere, the court queries the EU’s open banking framework’s obligation on firms to provide third-party providers with access to payment user data free of charge. This, “may discourage account data holders from providing high-quality service”. The report also flags the lack of standardised APIs, hindering third-party providers from using those data.
ChatGPT said:
As of January 10, 2025, the following entities have been identified for potential violations of competition law within the EU’s digital payments market:
1. Visa and Mastercard
- Violation Details: Both companies have been under investigation for imposing fees that may harm retailers. The European Commission initiated a probe in September 2024, sending questionnaires to retailers and payment service providers to assess the impact of these fees.
- Ongoing Status: The investigation is active, and no final decision has been made as of this date.
2. Payment Service Providers (PSPs)
- Violation Details: Specific PSPs have been implicated in anti-competitive practices, particularly concerning the lack of standardization in open banking interfaces, which stifles competition. However, detailed information on individual PSPs and the exact dates of violations is not readily available.
- Ongoing Status: Without specific details, it’s unclear whether these violations are ongoing.
3. The European Commission
- Violation Details: The Commission has faced criticism for delays in reviewing and implementing regulatory frameworks, such as the Payment Services Directive (PSD2), potentially impacting fair competition. However, these are procedural delays rather than direct violations of competition law.
- Ongoing Status: Efforts are ongoing to address these delays.
4. National Card Schemes
- Violation Details: Schemes like Bancontact (Belgium), CB (France), and Girocard (Germany) have been noted for dominating domestic markets and resisting integration with international standards, leading to market fragmentation. Specific violation dates are not documented.
- Ongoing Status: The market dynamics suggest that these practices may still be in place.
5. European Banking Authority (EBA)
- Violation Details: The EBA has been criticized for insufficient guidance and supervision of open banking frameworks, which may hinder consistent implementation. However, this pertains more to regulatory oversight than direct competition law violations.
- Ongoing Status: The EBA continues its regulatory functions, with ongoing discussions about improving guidance.
Calculating Limitation Periods:
- Damages Claims: Under the EU Damages Directive (Directive 2014/104/EU), claimants have a minimum of five years to bring damages actions, starting from the date they become aware of the infringement, the harm caused, and the identity of the infringer. The period does not commence until the infringement has ceased. If a competition authority initiates proceedings, the limitation period is suspended until at least one year after the decision becomes final.
- Judicial Review Applications: These should be filed promptly, typically within three months from when the grounds for the application first arose. Delays can prejudice the respondent or third parties, and applications made after the deadline are generally disfavored.
Conclusion:
Given the complexities and the need for precise timing, it’s advisable to consult legal counsel to determine the exact expiry dates for initiating claims against these entities, tailored to the specific circumstances of each case.
chatgpt:
The audit report identifies several companies and organizations responsible for anti-competitive behavior or for failures in ensuring fair competition in the EU’s digital payments market. The following entities and associated harms to competition, consumer interests, and the public interest have been detailed:
1. Visa and Mastercard (International Card Schemes)
- Harm to Competition: High market share (90%) in cross-border payment markets creates significant barriers to entry, fostering limited competition.
- Consumer Harm: Elevated interchange fees lead to higher merchant service charges, ultimately borne by consumers.
- Ongoing Harms: Price interventions, such as interchange fee caps, are not consistently reviewed, leading to potential distortions in the market.
2. Payment Service Providers (PSPs)
- Examples: Major PSPs across the EU include banks and specialized payment institutions.
- Harm to Competition: Lack of standardization in open banking interfaces stifles competition, particularly affecting small third-party providers.
- Consumer/Public Harm: Reduced innovation and fragmented market create higher costs and less accessible payment options.
3. The European Commission
- Harm to Competition and Public Interest: Delays in reviewing and implementing regulatory frameworks, such as the Payment Services Directive (PSD2), and lack of enforcement in addressing discriminatory payment account practices.
- Consumer/Public Harm: Consumers and businesses continue to face barriers in cross-border payments, leading to inefficiencies and increased costs.
4. National Card Schemes
- Examples: Bancontact (Belgium), CB (France), Girocard (Germany).
- Harm to Competition: These schemes dominate domestic markets and resist integration with international standards, creating fragmented markets that impede cross-border competition.
5. European Banking Authority (EBA)
- Harm to Competition: Insufficient guidance and supervision of open banking frameworks hinder consistent implementation.
- Consumer/Public Harm: A lack of reliable data impairs the ability to assess the effectiveness of competition and consumer protection measures.
Summary of Harms:
- To Consumers: Higher prices, reduced access to innovative payment solutions.
- To Competition: Barriers to entry, limited interoperability of payment systems.
- To Public Interest: Undermined goals of a unified and efficient digital market in the EU.
Recommendations for Complaints:
- File complaints against Visa, Mastercard, and dominant PSPs for anti-competitive practices.
- Advocate for stronger enforcement by the European Commission and EBA to address regulatory gaps and monitoring deficiencies
i ask:
As of January 10, 2025, there are several ongoing investigations and legal proceedings concerning potential violations of competition law within the digital payments sector. Notably:
1. Visa and Mastercard
- Investigation Details: In September 2024, the European Commission initiated an antitrust investigation into Visa and Mastercard’s fee structures, particularly focusing on scheme fees charged to retailers. The Commission distributed questionnaires to retailers and payment service providers to assess whether these fees negatively impact competition and consumer welfare.
- Current Status: The investigation is active, with both companies cooperating by providing the requested information.
2. Apple
- Investigation Details: The European Commission has been examining Apple’s practices related to its mobile payment system, Apple Pay. Concerns were raised about Apple’s restrictions on access to the Near Field Communication (NFC) technology embedded in iPhones, potentially limiting competition in mobile wallets.
- Current Status: In June 2024, Apple reached a settlement with the European Commission, agreeing to open its NFC technology to third-party mobile wallet providers. This commitment is legally binding for ten years, with potential fines for non-compliance.
3. Digital Markets Act (DMA) Enforcement
- Investigation Details: The European Commission has initiated non-compliance investigations under the Digital Markets Act against major tech companies, including Alphabet (Google), Apple, and Meta (Facebook). These investigations focus on practices such as self-preferencing, anti-steering rules, and conditions imposed on developers, which may hinder competition.
- Current Status: These investigations are ongoing, aiming to ensure compliance with the DMA’s provisions designed to promote fair competition in digital markets.
Conclusion:
The digital payments sector remains under close scrutiny by European competition authorities, with active investigations and enforcement actions targeting potential anti-competitive practices by major industry players. These proceedings underscore the EU’s commitment to maintaining fair competition and protecting consumer interests in the rapidly evolving digital economy.
As of January 10, 2025, there are several ongoing investigations and legal proceedings concerning potential violations of competition law within the digital payments sector. Notably:
1. Visa and Mastercard
- Investigation Details: In September 2024, the European Commission initiated an antitrust investigation into Visa and Mastercard’s fee structures, particularly focusing on scheme fees charged to retailers. The Commission distributed questionnaires to retailers and payment service providers to assess whether these fees negatively impact competition and consumer welfare.Reuters
- Current Status: The investigation is active, with both companies cooperating by providing the requested information.
2. Apple
- Investigation Details: The European Commission has been examining Apple’s practices related to its mobile payment system, Apple Pay. Concerns were raised about Apple’s restrictions on access to the Near Field Communication (NFC) technology embedded in iPhones, potentially limiting competition in mobile wallets. Financial Times
- Current Status: In June 2024, Apple reached a settlement with the European Commission, agreeing to open its NFC technology to third-party mobile wallet providers. This commitment is legally binding for ten years, with potential fines for non-compliance. The Wall Street Journal
3. Digital Markets Act (DMA) Enforcement
- Investigation Details: The European Commission has initiated non-compliance investigations under the Digital Markets Act against major tech companies, including Alphabet (Google), Apple, and Meta (Facebook). These investigations focus on practices such as self-preferencing, anti-steering rules, and conditions imposed on developers, which may hinder competition. Digital Markets Act
- Current Status: These investigations are ongoing, aiming to ensure compliance with the DMA’s provisions designed to promote fair competition in digital markets.
Conclusion:
The digital payments sector remains under close scrutiny by European competition authorities, with active investigations and enforcement actions targeting potential anti-competitive practices by major industry players. These proceedings underscore the EU’s commitment to maintaining fair competition and protecting consumer interests in the rapidly evolving digital economy