Open banking extended to access to hardware in Germany

Out-Law News | 26 Nov 2019 | 4:27 pm | 2 min. read

A new law in Germany will force Apple to provide banks and other payment service providers (PSPs) with access to iPhone devices to enable the companies to provide rival payment options to users of those devices.

Apple will be able to charge banks and PSPs to access its "technical infrastructure" under the new law, and to refuse such access in some circumstances, but the company has warned that the reforms could "worsen the user-friendliness of payments and endanger data protection and the security of financial data", according to a report by German newspaper Welt.

The new access requirements were adopted by Germany's parliament on 14 November alongside new laws implementing EU anti-money laundering, having only been initially proposed by the parliament's Finance Committee earlier in the month.

Technology and payments law expert Ruth Maria Bousonville of Pinsent Masons, the law firm behind Out-Law, said the new legislation is designed to complement Germany's existing 'open banking' regime, which stems from the underlying second EU Payment Services Directive (PSD2).

PSD2, which took effect in early 2018, provides new categories of PSPs – account information service providers (AISPs) and payment initiation service providers (PISPs) – with rights to access payment accounts and payment account information held by banks and other account servicing payment service providers (ASPSPs) where customers consent to such access.

Bousonville said: "Where services depend on access to hardware, there’s no reason to treat this hardware differently from data. It will be interesting to see whether mobile payments now finally get off the ground in Germany."

The new legislation, introduced via Section 58a of the Payment Services Supervision Act, applies to companies that support the provision of payment services or e-money services in Germany through "technical infrastructure services", where those services are used by more than 10 PSPs or e-money issuers or where the system operator has more than two million registered users.

System operators subject to the legislation must provide PSPs or e-money issuers with "appropriate access to this technical infrastructure for a reasonable fee and without undue delay" when such access is requested by the firms. The access given must allow a requester to "provide or operate its payment services or electronic money business without hindrance".

System operators have the right, under the new law, to refuse the access to their technical infrastructure requested "if there are objective reasons" to do so. These include if the system operator can prove that the safety and integrity of the technical infrastructure services will be jeopardised by providing such access.

The operators must be able to "comprehensibly" justify their reasons for rejecting access and will be liable for damage caused to the PSPs and e-issuers if they "culpably infringe" the access requirements without justification.

In Germany, sales of Apple's iPhone currently account for just less than 20% of all smartphone sales. The company began operating its mobile payment service Apple Pay in Germany in late 2018. According to Apple, 24 banks and other card payment providers work in partnership with it on Apple Pay in the country.