Germany’s Bundeskartellamt (Federal Cartel Office) investigates PayPal for possible anti-competitive practices

Germany's Bundeskartellamt (Federal Cartel Office) investigates PayPal for possible anti-competitive practices

Germany’s Bundeskartellamt (Federal Cartel Office) investigates PayPal for possible anti-competitive practices

(IN BRIEF) The Bundeskartellamt, Germany’s antitrust watchdog, has initiated a proceeding against PayPal (Europe) S.à.r.l. et Cie, S.C.A. over practices that may restrict price competition and limit the ability of competitors to enter the market. The proceeding deals with PayPal’s “Rules about surcharging” and the “Presentation of PayPal” set out in its user agreement in Germany. These terms prohibit merchants from offering lower prices for customers who use payment methods cheaper than PayPal, and prohibit sellers from expressing a preference for payment methods other than PayPal or making their use more convenient for customers. The Bundeskartellamt will now assess the extent of PayPal’s market power and how dependent online sellers are on offering PayPal as a payment method.

(PRESS RELEASE) BONN, 23-Jan-2023 — /EuropaWire/ — The Bundeskartellamt, Germany’s national competition regulatory agency, has initiated a proceeding against PayPal (Europe) S.à.r.l. et Cie, S.C.A., a credit institution (or bank) authorised and supervised by Luxembourg’s financial regulator, on account of practices possibly foreclosing competitors and restricting price competition. The proceeding deals with PayPal’s “Rules about surcharging” and the “Presentation of PayPal” set out in its user agreement applicable in Germany.

Under these terms and conditions merchants are not allowed to offer their goods and services at lower prices if customers choose to use a payment method that is cheaper than PayPal. In addition, sellers are not allowed to express a preference for payment methods other than PayPal or, for example, make their use more convenient for customers.

Andreas Mundt, President of the Bundeskartellamt“These clauses might restrict competition and violate the prohibition of abuse of a dominant position. We will now assess the extent of PayPal’s market power and in how far online sellers depend on offering PayPal as a payment method. If merchants are prevented from taking into account the differences in costs of various payment methods by imposing surcharges or granting discounts, it is more difficult for other and new payment schemes to compete successfully in terms of price and quality or to enter the market in the first place. Powerful payment schemes could thus obtain additional pricing leeway. Consumers in particular would also suffer since in the end they are the ones indirectly paying for these higher costs via the products’ prices.”

The fees incurred by sellers for the use of a payment service differ considerably depending on the payment scheme. Sellers usually include these fees in the product prices so that ultimately consumers bear the costs incurred for payment services even if these costs – unlike shipping costs, for example – are often not separately charged to consumers.

According to market studies, PayPal is not only the leading online payment scheme in Germany but also one of the most expensive online payment services. According to the company’s price list, PayPal’s standard rate in Germany currently amounts to 2.49%-2.99% of the payment amount plus 34-39 cents per payment.

The antitrust proceeding is based on the prohibition of abuse of a dominant position (Article 102 TFEU, Section 19 German Competition Act (GWB)) and the prohibition of abuse of a position of relative or superior market power (Section 20 GWB). In addition, PayPal’s conduct might also violate the prohibition of anti-competitive agreements (Article 101 TFEU, Section 1 GWB). The present case thus also ties in with various proceedings already conducted by competition authorities against other online platforms due to so-called most-favoured-nation clauses.

To prevent excessive payment method surcharges for consumers, Article 62(4) of the European payment services directive (Directive (EU) 2015/2366) prohibits sellers from requesting separate charges for certain payment methods which were deemed to involve comparatively low costs. According to a judgment handed down by the Federal Court of Justice on 25 March 2021 (I ZR 203/19), PayPal does not fall under the scope of application of this provision. In the context of the currently ongoing review of the payment services directive, the Bundeskartellamt also called for abolishing the surcharge ban for certain card-based payments since these payment schemes do not always involve low costs (see Bundeskartellamt’s statement of 2 August 2022).

Media contacts:

Kay Weidner (Press Officer)
Phone: +49 228 9499-215
kay.weidner@bundeskartellamt.bund.de

SOURCE: Bundeskartellamt

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