Immaterialgüter- und Wettbewerbsrecht

Sector-Specific Data Access and Governance Regimes- the Case of Digital Payment Services

This project analyses sector-specific access and data governance regimes enshrined in the PSD2. It assesses the fitness of the access remedies and analyses the legal framework in light of the chosen regulatory approach, adverse effects on competition and innovation and potential conflicting data protection and IP and trade secrets law regimes.

Last Update: 17.04.21

The retail banking sector has been characterized by lock-in problems, a low elasticity of demand and a general lack of competition and innovation. The reasons for this were manifold and related to systemic market structural, informational and behavioural issues. This led early on to the adoption of market regulation that should address certain issues from an ex ante perspective, as competition laws typically failed to deliver the desired outcome. These market regulating tools not only addressed the systemic market failures by outlining price gouging laws, introducing transparency obligations, spurring the entry of new smaller entrants in the market by lowering legal entry barriers and providing more supply side diversification and new innovative services, it also took the role of access to data at the core of their considerations. Inspired by the remedy of Open Banking - chosen in course of a market investigation led by the CMA in the UK opened in 2013 - the Second Payments Directive (PSD2) together with the Delegated Regulation on Regulatory Technical Standards established data access and governance regimes for different fields in the retail banking sector.

This project analyses the regulated access regimes pertaining to payment initiation services and account information services. Such regimes are put in a much broader legal framework that not only involves overlaps with existing horizontal data portability regimes, i.e. the right to data portability under Art. 20 GDPR it, also involves overlaps with potentially conflicting Intellectual Property (inter alia the protection of APIs ), data protection and trade secret law regimes. The project answers the following questions:

(1)What regulatory data access models have been chosen by the legislature and do they establish a novel concept of (information) access regimes?

(2)Do these regulatory models serve their purpose to spur data driven innovation or are they dysfunctional?

(3)Do these regulatory models appropriately reconcile different interests implied and properly address conflicting norms and potential adverse effects?

(4)What amendments are needed?

This research has been conducted by applying an inter-disciplinary regulatory approach. In addition to a traditional legal analysis this work builds on basic IP and information economics that can be analogously applied in data access cases. It reflects on the current economic research and policy work pertaining to the right legal framework for data driven innovation and assesses how this has been translated into law. It further takes the current competition policy considerations regarding the regulation of platform undertakings into account and considers the recent research in behavioural economics on privacy protection and consumer inertia in the retail banking sector. Ultimately the research provides new policy considerations and suggests legal amendments de lege lata.

Main Areas of Research

II.3 Vernetzte Datenwirtschaft