Competition in the Payments Sector – a year in review of the PSR

22/04/2016

Speech by Carole Begent, PSR Head of Legal, at Osborne Clarke LLP, on 20 April 2016 in London.

This is the text of the speech as drafted and may differ from the delivered version.


Good afternoon,

It is a pleasure to be asked to speak this afternoon about competition in the payments sector and to reflect on the past year’s work of the PSR.

[SLIDE 2]

Paul (Anning, Osborne Clarke) asked me to focus on three particular areas of the PSRs’ work – Concurrency, Innovation and the Indirect Access Market Review. So I will begin where Zoe (Hare, Osborne Clarke) left off – Concurrency.

[SLIDE 3]

Concurrency

You can approach the subject of concurrency in several ways and it can be a significant topic of its own. I shall focus on three aspects: the historical, the practical and the substantive.

The historical perspective

The debate around concurrency hotted-up with the reform of the anti-trust law when the Competition Act 1998 was introduced.

Concurrency had existed already amongst the some of the regulators responsible for utility sectors. These are most commonly referred to as economic regulators. The introduction of the Competition Bill invited fresh consideration of the organisation of powers within the UK, in particular who should have them.

Many of the significant decisions made at the time remain true today:-

The economic regulators would have competition powers, as did the leading competition authority - then the OFT (Office of Fair Trading), now the CMA (Competition and Markets Authority). That is, they would have powers under the Competition Act 1998 – which addresses anti-competitive agreements or conduct.

The only exception would be that the OFT, now the CMA, would investigate and pursue cartels.

The regulators would also continue - like the OFT - to be able to refer markets to the Competition Commission (CC) for phase 2 investigations. This is now within the CMA. The ongoing Retail Banking Market Investigation is, of course, an example of such a reference (though in fact referred by the CMA phase 1 to itself at Phase 2).

Almost at the same time, the reforms of antitrust law in Europe were under discussion and the UK Government also determined that the same economic regulators with concurrent powers under the UK regime would also have the equivalent European antitrust powers as the UK competition authority (the CMA).

Mergers were outside the  concurrency debate (although no less a tool) and the situation then, as now, is that the  lead competition authorities (OFT/CC - now the CMA) would have responsibility for decision making on mergers except when the merger was within the EU jurisdiction – in which case generally DG Comp is the decision maker.

Why did they give the regulators the anti-trust powers?  There were several reasons including:

  • First and foremost - recognition that the regulator likely had the greater and more detailed knowledge of the sector (essential when thinking about whether