Communication from the Commission published pursuant to Article 27(4) of Council Regulation (EC) No 1/2003 in Case AT.40452 – Apple – Mobile Payments
Date: 2024-01-19
Institutions: Directorate-General for Competition, European Commission
Subjects: EU competition policy, European Economic Area, control of restrictive practices, dominant position, electronic banking, electronic money, mobile application, mobile phone, payment system








C_202401027EN.000101.fmx.xml












Official Journal of the European Union


EN
Series C













C/2024/1027


19.1.2024






Communication from the Commission published pursuant to Article 27(4) of Council Regulation (EC) No 1/2003 in Case AT.40452 – Apple – Mobile Payments
(C/2024/1027)

1.   Introduction









(1)


According to Article 9 of the Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (1), the Commission may decide – in cases where it intends to adopt a decision requiring that an infringement is brought to an end and the parties concerned offer commitments to meet the concerns expressed to them by the Commission in its preliminary assessment – to make those commitments binding on the undertakings. Such a decision may be adopted for a specified period and shall conclude that there are no longer grounds for action by the Commission. According to Article 27(4) of the same Regulation, the Commission shall publish a concise summary of the case and the main content of the commitments. Interested parties may submit their observations within the time limit fixed by the Commission.




2.   Summary of the Case









(2)


On 2 May 2022, the Commission adopted a Statement of Objections in case AT.40452 – Apple – Mobile Payments concerning alleged infringements of Article 102 of the Treaty on the Functioning of the European Union (the ‘Treaty’) and of Article 54 of the Agreement on the European Economic Area (‘EEA Agreement’). The Statement of Objections constitutes a preliminary assessment within the meaning of Article 9(1) of Regulation (EC) No 1/2003.












(3)


The Statement of Objections expressed the preliminary conclusion that Apple would have abused its dominant position in markets for mobile wallets on iOS devices (iPhones) by limiting access to a standard technology used for contactless payments with mobile devices in stores (‘Near-Field Communication’ or ‘NFC’) in the European Economic Area (‘EEA’) (2).












(4)


Apple Pay is Apple’s own mobile wallet solution used to enable mobile payments in physical stores and online. Apple Pay is the only method that may access the necessary NFC input for mobile payments in physical stores. Apple does not make it available to third-party app developers of mobile wallets. The NFC technology enables communication between a mobile device and payment terminals in stores. NFC is standardised, available in almost all payment terminals in stores in the EU and allows for safer and more seamless mobile payments.




3.   The Main Content of the Offered Commitments









(5)


Apple does not agree with the Commission’s Statement of Objections. It has nevertheless offered commitments pursuant to Article 9 of Regulation (EC) No 1/2003, to address the Commission’s preliminary competition concerns. The key elements of the commitments are as follows.












(6)


Apple commits to facilitating in-store payments (3) using NFC with iOS devices through a set of Application Programming Interfaces (‘APIs’) independent of Apple Pay. For this purpose, Apple undertakes to allow third-party mobile wallet and payment service providers to access and interoperate, free of charge, with the NFC functionality on iOS devices, without using Apple Pay or Wallet. Apple would create the necessary APIs to allow equivalent access to, inter alia, the NFC controller (4) and the NFC interface (5). This access would be enabled by Host Card Emulation (‘HCE’).












(7)


Apple offers to apply the commitments to all app developers established in the EEA and all iOS users with an Apple ID registered in the EEA (6). The solution would be made available on iPhones capable of upgrading to the latest version and any future version of iOS (iPhone XS and later).












(8)


Apple commits to providing additional features and functionalities, including:






(i)


A functionality within iOS settings, easy to locate, allowing users to set and change their preferred payment application as the default NFC payment application;










(ii)


A register of installed payment applications requesting access to the NFC controller;










(iii)


General access to other relevant APIs and software development kits available to iOS apps through the Apple Developer Program, including authentication functionalities used by Apple Pay (Touch ID, Face ID, passcode), access to Field Detect, Double-click, and a suppression mechanism.
















(9)


Apple further commits that fair, objective, transparent, and non-discriminatory eligibility criteria will be used for granting NFC access to third-party developers, that would have to conclude an Apple Developer Program License Agreement and accept additional terms applicable to the use of the entitlement.












(10)


Apple offers to apply the commitments for a period of ten years.












(11)


These commitments relate solely to the present case AT.40452.












(12)


The commitments are published in full in English on the website of the Directorate-General for Competition at:
https://ec.europa.eu/competition-policy/index_en




4.   Invitation to make Comments









(13)


Subject to market testing, the Commission intends to adopt a decision under Article 9(1) of Regulation (EC) No 1/2003, declaring binding the commitments summarised above and published on the Internet, on the website of the Directorate-General for Competition.












(14)


In accordance with Article 27(4) of Regulation (EC) No 1/2003, the Commission invites interested third parties to submit their observations on the proposed commitments. These observations must reach the Commission not later than one month following the date of this publication. Interested third parties are also asked to submit a non-confidential version of their comments, in which any information they claim to be business secrets and other confidential information should be deleted and replaced as required by a non-confidential summary or by the words ‘business secrets’ or ‘confidential’.












(15)


Answers and comments should preferably be reasoned and should set out the relevant facts. If you identify a problem with any part of the proposed commitments, the Commission would also invite you to suggest a possible solution.












(16)


Observations can be sent to the Commission under reference number AT.40452 – Apple – Mobile Payments, either by e-mail (COMP-GREFFE-ANTITRUST@ec.europa.eu) or by post, to the following address:





European Commission




Directorate-General for Competition




Antitrust Registry




1049 Bruxelles/Brussel




BELGIQUE/BELGIË










(1)  
            OJ L 1, 4.1.2003, p. 1. With effect from 1 December 2009, Articles 81 and 82 of the EC Treaty have become Articles 101 and, respectively, 102 of the TFEU. The two sets of provisions are in substance identical. For the purposes of this notice, references to Articles 101 and 102 of the TFEU should be understood as references to Articles 81 and 82 of the EC Treaty when applicable.

(2)  For the purposes of the SO, although the United Kingdom withdrew from the European Union as of 1 February 2020, according to Article 92 of the Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community (OJ L 29, 31.1.2020, p. 7), the Commission continues to be competent to apply Union law as regards the United Kingdom for administrative procedures which were initiated before the end of the transition period. Accordingly, the SO referred to the EEA as also including the United Kingdom.

(3)  Payments made at merchant’s industry-certified physical point-of-sale payment terminals.

(4)  To communicate with NFC payment terminals to exchange data.

(5)  To enable communication with the NFC Controller.

(6)  For the purposes of the commitments offered by Apple, the EEA should be understood as covering the 27 Member States of the European Union (Austria, Belgium, Bulgaria, Croatia, Cyprus, Czechia, Denmark, Estonia, Finland, France, Germany, Greece, Hungary, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Poland, Portugal, Romania, Slovakia, Slovenia, Spain and Sweden), as well as Iceland, Liechtenstein and Norway.


ELI: http://data.europa.eu/eli/C/2024/1027/oj
ISSN 1977-091X (electronic edition)