Several Australian banks, including three out of the ‘big four’ banks, want the ACCC to give them the green light to engage in hard-core cartel conduct.
The Banks’ submission
On 26 July Bendigo and Adelaide Bank, the Commonwealth Bank, NAB and Westpac sought authorisation to engage in collective negotiation with providers of third party mobile wallet services (essentially Apple) and to collectively boycott third-party providers during the course of collective negotiations. Apple has so far locked out third-party providers, although ANZ (the fourth of the big Australian banks) has negotiated access to Apple Pay.
The applicants’ 121 page authorisation submission, which can be found on the ACCC authorisation register, states, in part:
[para 2] The applicants seek authorisation on behalf of themselves and potentially other credit and debit card issuers to engage in limited collective negotiation with providers of third-party mobile wallet services on conditions relating to competition, best practice standards, and efficiency and transparency. The applicants also seek 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.
Plenty of commentary has followed – see, for example:
- Cameron Abbott and Rebecca Murray, ‘Big banks want a slice of the Apple Pay pie’ (K&L Gates, CyberWatch: Australia, 28 July 2016)
- James Eyers, ‘Australian banks take on Apple over digital wallets’ (AFR, 27 July 2016)
- Clancy Yeates, ‘Banks team up in Apple Pay talks’ (SMH, 27 July 2016)
- Richard Chirgwin, ‘Australian Banks ask permission to form anti-Apple cartel’ (The Register, 27 July 2016) (‘You can’t make it up’)
- James Eyers, ‘Apple Pay deal could deliver accounts to ANZ Bank’ (AFR, 28 April 2016)
- Stuart Condie, ‘ANZ ‘pulled fast one’ on Apple Pay’ (news.com.au, 27 July 2016).
Apple fights back
On 4 August Apple provided a brief (3-page) submission to the ACCC’s review. The submission notes that Apple will provide a ‘separate and comprehensive submission’ at a later date, but makes a number of key points, urging ACCC to reject the banks’ application for interim authorisation.
Apple claims (amongst other things) that the banks seeking authorisation view Apple Pay as a ‘competitive threat’ and that this is based on their ‘limited understanding of the offering’ and a desire to ‘maintain complete control over their customers’ and that the application represents a tactic to ‘blunt Apple’s entry into the Australian market’.
The submission notes that a collective boycott is a ‘hard-core breach’ of the Act and would ‘slow innovation and reduce choice’.
Apple also claims that there are no public interest justifications (necessary for authorisation) supporting the application. It argues the reverse; in particular, it argues that giving the banks simple access to its NFC antenna would ‘fundamentally diminish the high level of security Apple aims to have’ on its devices.
In these circumstances Apple suggests interim authorisation would be inappropriate and outside ACCC Guidelines and that the normal six month statutory assessment period should apply.
For emerging commentary on this see:
- James Eyers, ‘Apple says Australia’s banks pose a security threat to iPhones’ (AFR, 10 August 2016)
- Angus Kidman, ‘The war over access to Apple Pay and NFC looks set to run and run’ (Finder,com.au)
- Mikey Campbell, ‘Apple counters Australian banks’ call for iPhone NFC access, cites handset security’ (appleinsider, 9 August 2016)
More details can be found on the ACCC authorisation register, including the banks’ application, Apple’s submissions and submissions by other interested parties and the ACCC’s correspondence in relation to the matter.
The applicants have sought interim authorisation and the ACCC have set the following timetable:
- 26 July 2016 – lodgement of authorisation application
- 28 July 2016 – public consultation begins
- 4 August 2016 – closing date for submissions in relation to interim authorisation
- August 2016 – ACCC decision regarding interim authorisation (no more precise date offered)
- 18 August 2016 – closing date for submissions in relation to substantive authorsiation application
- September 2016 – applicants to respond to issues raised in relation to substantive authorisation application
- October 2016 – Draft determination and public consultation on draft determination
- December 2016/January 2017 – final determination
Definitely one to watch!