The Australian Competition and Consumer Commission is continuing to assess the applications for authorisation by the Commonwealth Bank of Australia, Westpac Banking Corporation, National Australia Bank, and Bendigo and Adelaide Bank after deciding not to grant the banks’ request for interim authorisation at this early stage of its assessment process.
The banks wish to engage in collective negotiation and boycott activities with Apple in relation to its e-commerce Apple Pay platform and with other third party wallet providers in Australia.
“The ACCC has considered interim authorisation within a short timeframe at the request of the applicants. However, given the complexity of the issues and the limited time available, the ACCC has decided not to grant interim authorisation at this time. The ACCC requires more time to consult and consider the views of industry, consumers, and other interested parties,” ACCC Chairman Rod Sims said.
In deciding not to grant interim authorisation, the ACCC took into account the potential for continuing effects on competition in the market, the extent of urgency for the request, any possible harm to the applicants or other parties if interim authorisation is granted or denied, and possible public benefits and detriments.
“The entire ACCC authorisation process usually takes up to six months, including the release of a draft decision for consultation before making a final decision. We expect to release a draft decision in October 2016. The ACCC’s decision not to grant interim authorisation at this time is not indicative of whether or not a draft or final authorisation will be granted,” Mr Sims said.
The banks, together with other participating card issuers, are seeking authorisation to collectively negotiate and boycott on a range of issues. One of these issues relates to the banks’ ability to utilise Near Field Communication hardware on Apple devices to enable contactless payments to be made through the banks’ own digital wallets.
A digital wallet is an application that can allow consumers to tap and pay using their phone and can store other information, such as loyalty or membership cards. Other issues for collective negotiations include appropriate industry standards for digital wallets and the banks’ ability to pass on any fees charged by a third party digital wallet provider.
On 26 July 2016, the applicants sought authorisation on behalf of themselves and potentially other credit and debit card issuers to engage in limited collective negotiation with Apple and other providers of third-party mobile wallet services.
The applicants also sought authorisation to enter into a limited form of collective boycott in relation to a third-party mobile wallet provider while collective negotiations with that provider are ongoing.
The applicants sought a decision on interim authorisation within 28 days of lodging their application.
Notes to editors
Authorisation provides statutory protection from court action for conduct that might otherwise raise concerns under the competition provisions of the Competition and Consumer Act 2010 (Cth). Broadly, the ACCC may grant an authorisation when it is satisfied that the public benefit resulting from the conduct outweighs any public detriment.
About the authorisation process
- Where urgent interim authorisation has been requested, the ACCC aims to make a decision on it within 28 days. When granted, the applicants can engage in the conduct while the substantive application is considered by the ACCC.
- Generally, the ACCC can grant authorisation if it is satisfied that the public benefit from the conduct outweighs any public detriment, including any lessening of competition.
- The statutory period for the assessment of an authorisation is six months (unless extended by a maximum of an additional six months).
- The ACCC is required to publish a draft decision (‘determination’) in relation to an application. This is usually 3-4 months after receiving an application.
- The ACCC will conduct public consultation with interested parties both before and after a draft determination.
- Applicants or interested parties may call a ‘conference’ following a draft determination which is an opportunity for applicants and interested parties to make oral submissions to the ACCC about the draft decision.
- The ACCC will generally release its final decision (‘determination’) 5-6 months after receiving an application.