EMVCo ANTITRUST AND COMPETITION LAW COMPLIANCE GUIDELINES

EMVCo has designed these guidelines to ensure that all participants in EMVCo specifications development and adoption programs (including the Board of Managers, the Executive Committee, EMVCo’s Members, its Working Groups, its Subscriber Programme participants and its Associates Programme participants) (collectively, “Participants”) comply fully with the letter and spirit of United States and foreign antitrust and competition laws. Any questions about the applicability of these guidelines, or any other questions or concerns, should be directed to the Chair of the EMVCo Board of Managers, for reference to legal counsel as appropriate.

A. EMVCo and the procompetitive effects of standard setting organizations

EMVCo’s primary role is to manage and evolve the EMV Specifications that enable card-based payment products to work together seamlessly and securely worldwide.  As an organization striving to facilitate a payments infrastructure that is standardized in terms of security and interoperability, EMVCo plays an important role in bringing together stakeholder interests among payments industry participants.

However, EMVCo does not require anyone to implement or comply with the EMV Specifications. Policies for implementation are handled independently by each payment network outside of EMVCo.

The antitrust laws have long recognized that standard-setting activity that facilitates interoperability, increases efficiency and benefits consumers.  By developing specifications for card payment system interoperability, EMVCo fosters efficiency by reducing product development costs and speeding the pace of innovation.  EMVCo intends to continue these procompetitive aspects of its operations while also ensuring that it protects against the risks of any unintended anticompetitive outcomes or any conduct that might raise questions under the antitrust and competition laws of the United States and foreign countries.

B. Potential antitrust considerations for standard setting organizations

The antitrust laws protect competition in the market, in order to benefit consumers through lower prices and higher quality products and services.  The most serious antitrust violations are certain types of “horizontal” agreements between or among competitors, which can include:

  1. price-fixing agreements – that is, agreements among competitors to raise or stabilize prices (including licensing fees), or to reduce output;
  2. agreements allocating customers, geographic markets, product developments, or percentage shares of the market; and
  3. agreements excluding other competitors from access to assets critical to effective competition, including standards and data essential to develop products and systems consistent with those standards.

These types of agreements are, with rare exceptions, illegal per se, meaning that antitrust authorities take them very seriously and violators are subject to significant civil and criminal penalties. It is not a defense if the agreement did not actually result in price increases or otherwise harm competition.

The “agreements” prohibited under the antitrust laws include more than just written contracts or commitments made at formal meetings.  A prohibited agreement may take the form of a tacit understanding, what the courts sometimes describe as a “meeting of the minds” or a “knowing wink.”  Agreements can be made through any communication or gathering, including during social events before or after formal meetings.  Discussions of competitively sensitive subjects may be seen as circumstantial evidence of an illegal agreement, especially when coupled with later parallel conduct in the market (such as parallel changes in key licensing terms).

Therefore, joint standard setting organizations may not be used as a forum for competitors to agree with each other to unlawfully exclude competitors or harm competition.  Moreover, precautions should be taken to avoid even discussing certain competitively sensitive topics, to avoid any misunderstandings and minimize the risk that certain conversations could be misconstrued as anticompetitive agreements prohibited under the antitrust laws.

C. Antitrust compliance guidelines and list of prohibited discussion topics

In order to ensure compliance with the antitrust laws, it is EMVCo’s policy that: (a) no Participant shall use the development of the EMV Specifications or the standard setting process to unlawfully exclude competitors or harm competition; and (b) industry stakeholders shall have opportunities to provide input into the development of proposed EMV Specifications and access to the EMV Specifications on a reasonable and non-discriminatory basis so that they can develop products and systems consistent with those specifications.

EMVCo’s primary role is to develop, manage and evolve the EMV Specifications, and therefore all Participants should limit their discussions to the information relevant and reasonably necessary to such activities.  Participants may not discuss competitively sensitive topics such as:

  • Their current or future product prices or changes in their own product licensing terms;
  • Customer lists or the selection, retention or quality of customers; and
  • Their respective marketing or distribution plans or strategies, especially about specific markets individual Participants intend to pursue.

D. Obligation to disclose and license certain intellectual property rights

EMVCo Members must disclose to EMVCo any intellectual property rights of which the Member is aware that may likely be infringed by the implementation of the EMV Specifications. No Member, however, is required to conduct a search of its intellectual property portfolio to comply with this obligation. In accordance with applicable law, all Participants must, on reasonable and non-discriminatory terms, license to implementers their intellectual property rights that are necessarily infringed by implementing the EMV Specifications.

Participants must honor these obligations. The failure to disclose relevant intellectual property rights as described above, or the demand of unreasonable or discriminatory license terms for their use, are abuses of the standard setting process and may violate the antitrust laws.

E. Conduct of Meetings

To ensure discussions are limited to lawful subjects, written agendas and minutes must be prepared and kept for all regularly scheduled and special meetings of the Board of Managers, Executive Committee, Working Groups, Associates Programme and Subscriber Programme. Meetings must limit their discussions to those topics set forth on the agenda. An antitrust compliance statement will be provided at all meetings and EMVCo legal counsel will monitor meetings for compliance, as appropriate.

Updated: 02 December 2020