Legal constants and the ‘constant’ outside of the law: Mobile payments in comparative perspective under European Union law

This article aims to determine whether mobile payments can be characterized by a legal constant, or common legal meaning. Indeed, mobile payments are a new form of payment system that is shaping the new economy of financial markets. Generally, they are part of the Fintech phenomenon, and they are specifically regulated in Europe, inter alia, under the Payment System Directive and the Regulation on Multilateral Interchange Fees. Nonetheless, those secondary hard law acts do not include any compulsory legal definition for mobile payments, which remain undefined and conventionally identified as means of proximity or remote payments. With that in mind, the article introduces for the first time in comparative law a new concept that aims at discovering meanings rather than similarities and differences that are irremediably limited to a merely descriptive function. To this end, the article argues that each time the constant outside of the law is subsequently recognized as ‘legal’, it becomes a legal constant, which is in turn capable of effectively revolutionizing the same study of mobile payments as well as of comparative law tout court.

An Event Study Analysis of the Impacts of the European Interchange Fee Regulation*

One of the key success factors of the regulatory involvement by the European Commission (EC) in card payment markets across Europe is the reduction of merchant service charges for retailers and final prices for goods and services for consumers. In light of the EC’s scheduled review of the impacts of the policy intervention, this paper evaluates the usability of the event study analysis to determine the impacts of the interchange fee regulation. Findings show that 1 April 2009 is the single, statistically significant date in relation to the regulation. Contrary to common rationale, positive excess returns are recorded for issuers (9 percent-pts), pure issuers (9 percent-pts), and merchants (4.8 percent-pts), primarily driven by previous uncertainty of investors around a potential ban on interchange fees. As a consequence, total market capitalization for the retail industry increased by 11.2 billion Euro. This results in a partial pass-through rate of 46 percent from acquirers to merchants. The event study is deemed a suitable methodology to complement existing research techniques in this field. To determine ultimate pass-through to consumers, further investigation on the prevalent manifestation of issuer–acquirers needs to be conducted.

Payment services in the EU: price regulation to protect a duopoly

The EU Interchange Fee Regulation (‘IFR’) introduced price caps on the fees paid between banks in respect of credit and debit card payments. The Second Payment Services Directive (‘PSD2’) forces some payment schemes to open up their networks to any banks that want to use them. These rules, together with a wealth of related and ancillary provisions, are the legislative fallout from a series of antitrust investigations into Visa and Mastercard. But the rules are not limited to Visa and Mastercard, nor are they limited to schemes that operate in the same way as Visa and Mastercard. They extend to payment schemes with no interchange fees at all and with tiny market shares. One argument made for including all schemes within the scope of the rules was to create a level playing field for competition. Instead, regulation that was initially aimed at Visa and Mastercard has created high entry barriers and hamstrung the only realistic challengers to these four-party schemes. If rival schemes are unable to offer customers or merchants something different, all payment services will become commoditised. Without meaningful rivals, the duopoly of Visa and Mastercard will become more entrenched and customers will see a reduction in choice and innovation. The unintended consequence of the IFR and PSD2 could be to reduce competition in the market, the very thing they were originally designed to address.