Antitrust

7 8 BLOCKCHAIN: NEW SCENARIOS FACILITATING COLLUSION? Trade finance, payments, clearing and settlement, and syndicated loans have already started to embrace blockchain due to its speed, security and transparency. But the spread of blockchain technologies has also drawn the attention of competition authorities, who question whether this new structure could facilitate collusion. 1 In most cases, the EC and NCAs already have the necessary enforcement tools to ensure compliance with competition law, although they must be alive to new challenges posed by the technology. For instance, blockchain's structure may allow for more sophisticated implementation of an agreement to collude, allowing for easier detection of deviation from the agreement and a more accurate retaliation method. Blockchain also enhances transparency, which could prompt competition authorities to more readily bring allegations of tacit collusion. 2 In this regard, competition authorities should be reminded that whereas explicit collusion constitutes a 'by object' infringement, companies cannot be prevented from "adapt(ing) to [the] existing and anticipated conduct of their competitors" 3 as long as they do not overtly collude. Tacit collusion scenarios are much less clear and common and need to be assessed more rigorously under an effect-based assessment. REFUSAL TO GRANT ACCESS TO BANK USERS ACCOUNT DATA Online payment services providers need access to the bank account user's data to operate, and this data is owned by the banks. Competition concerns could arise where the bank is found to have a dominant position (as it is the sole owner of its customers' data), in which case it could be an abuse to refuse fintechs access to its customers' data once the customer has agreed to provide access to it. This would be the case if it can be established that: (i) only the bank where the customer has an account has access to the payment data of that customer; (ii) payment service providers need account data, which is not substitutable for other information, hence it is indispensable or essential for fintechs to compete in the market; and (iii) banks have incentives to foreclose fintechs if they offer competing products on the basis of the bank account data. Therefore, potential enforcement of competition law in relation to Article 102 TFEU may be around the corner. In October 2017, the EC carried out inspections of banks in Poland and the Netherlands under suspicion of access to bank customers' account data being blocked by banks even when customers gave their consent to it. 4 This investigation is currently ongoing but shows how these concerns may materialize in the EU. COMPLIANCE 14 B L O C K C H A I N ' S S T R U C T U R E M A Y A L L O W F O R M O R E S O P H I S T I C A T E D I M P L E M E N T A T I O N O F A N A G R E E M E N T T O C O L L U D E How Should Competition Law React to Fintech?

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