Newsletter 6/2020

EU/Competition: Banking and Finance

The Presidency of the Council and the European Parliament reached 23.06.20 a deal on a common set of rules for central counterparties (CCPs) and their authorities to prepare for and deal with financial difficulties. The main objectives of the reform are: (i) to reduce the probability of CCP failure by introducing effective incentives for proper risk management; (ii) In case a financial difficulty would effectively arise, to preserve CCPs’ critical functions, to maintain financial stability, and to prevent taxpayers from bearing the costs associated with their restructuring or resolution. Read more here.

The main objectives of the Interchange Fees Regulation (“IFR”), which entered into force in 2015, were to address interchange fees for cards and card-based payment transactions, which were highly diversified, elevated and non-transparent. These fees represented an obstacle to market integration, including higher costs for retailers and consumers. To this effect, the IFR caps interchange fees for consumer cards, introduces business rules and prohibits practices that create market barriers, such as territorial restrictions or the prevention of choice of payment brand or payment application by merchants and consumers. The Commission published 29.06.20 a report on the impact of the IFR, concluding that the main objectives of the Regulation have been achieved, as interchange fees for consumer cards have decreased, leading to reduced merchants’ charges for card payments, and ultimately resulting in improved services to consumers and lower consumer prices. Furthermore, market integration has improved through the increased use by merchants of acquirers (banks servicing merchants) located in other EEA countries (cross-border acquiring services) and more cross-border card transactions. Visit the report here.

The Commission published 26.06.20 a public consultation on the Market Definition Notice used in EU competition law. The current Market Definition Notice dates from 1997, and the Commission now states – unsurprisingly – that the notice may not “address all pertinent questions arising today when defining the relevant product and geographic market”. The Commission has also gained a lot of experience in market definition all these years, techniques have evolved and the EU courts have provided additional guidance. The best practices that can be distilled from these developments may need to be reflected in a revised Market Definition Notice, and the Commission is seeking stakeholders’ feedback on this. The information collected through the public consultation will provide part of the evidence to be used in the evaluation. Stakeholders can submit their views and respond to the consultation until 09.10.20. Visit the consultation here.

The Norwegian government launched 24.06.20 a consultation on a new state aid act for Norway. The new act – as the current act – is mainly focused on implementing all procedural provisions, i.e. the provisions of the act do not include substantive provisions. It proposes clarifications in relation to the stand-still provision and recovery; otherwise it is mostly a technical modernization of the implementation of existing procedural rules and EEA obligations. The deadline for comments is 01.10.20. Visit the consultation here.

The Norwegian mobile communications sector consist of quite concentrated markets, with only two complete networks and Telenor as the incumbent provider. In a decision of 30.06.20 ESA found that Telenor abused its market dominance by a pricing strategy that resulted in rivals making a loss when selling residential mobile broadband services on tablets and laptops. In the view of ESA, during a critical growth phase in mobile data in Norway, Telenor’s wholesale prices for access to its network were higher than the retail prices it charged its own residential users for accessing mobile broadband services on large-screen devices, such as tablets and laptops. The decision rests on the view that, despite an acceleration in consumer demand for mobile data, Telenor’s pricing practices made it impossible for rivals that were dependent on buying wholesale access from Telenor to offer large-screen mobile broadband services to residential users without incurring a loss. According to ESA, these “margin squeeze” practices prevented rival companies from competing viably from 2008 to the end of 2012 in what was an evolving and fast-growing market at the time. ESA found this to be an illegal abuse of dominance pursuant to Article 54 EEA. Telenor has already stated that the decision will be tried at the EFTA Court. A public version of the decision has yet to be published. Visit ESA’s fact sheet on the decision here.

The Norwegian Competition Authority (NCA) has concluded its investigation related to alleged abuse of dominance of Ringnes following commitments proposed by the company. The NCA has investigated Ringnes since 2017. The Authority was concerned that Ringnes’ agreements had tied pubs and restaurants to Ringnes and forced these customers to buy beer exclusively from the company. Such agreements may hinder other breweries and suppliers access to the market, and amount to an infringement of the Competition Act’s prohibition against abuses of a dominant position (Section 11 of the Competition Act). Ringnes has committed not to conclude agreements that give the company exclusive rights to deliver beer to pubs and restaurants. Moreover, it must follow clearly from Ringnes’ agreements that the pubs and restaurants concerned are free to accept deliveries of beer from other breweries and suppliers. The commitments make it possible for other breweries and suppliers to compete effectively with Ringnes on price, as Ringnes has undertaken not to grant discounts that tie pubs and restaurants to Ringnes, or to reward customers that source all their requirements from Ringnes. A trustee will ensure that Ringnes complies with the commitments. If Ringnes should not act in accordance with the submitted commitments, the Authority may reopen the investigation and could possibly impose a fine for non-compliance under the Competition Act. It is the first time the NCA concludes an investigation by adopting a commitment decision, making commitments proposed by the company under investigation legally binding. Read more here.