This complaint was originally published by Forbes.
Complaint Re: Infringements of Articles 101 and 102 of the EU Treaty
- 13 pages
- July 2, 2011
1. The complainant:
DataCell ehf. id.no. 460709-0160, Skúlagata 19, 101 Reykjavik, is a limited liability company incorporated under the laws of Iceland. (Hereinafter the complainant will alternatively be referred to as DataCell or as the “Complainant”)
DataCell offers data and software hosting services, ranging from the hosting of websites, physical and virtual servers to the operation of complete data centres.1 Datacell has also operated payment gateways and acted as a payment facilitator enabling businesses, NGOs, humanitarian organisations and others which do and/or choose not to have their own merchant account to accept payment cards.
1.1 Corporate Group:
DataCell is part of a group of 4 companies under common ownership, which together form an inter-supportive and a cohesive company group well equipped to serve and support international (as well as lcelandic) customers of variable needs:
1. Kerfisþróun ehf. id.no. 540409-0130, Skúlagötu 19, (“Kerfisþróun”), develops software and provides hosting of computer and software for the Icelandic market. Kerfisbróun has developed its own ERP software that are served either stand alone or on a SaaS model to over 3000 Icelandic customers, which constitutes a 25% market share for similar ERP applications in Iceland.
In addition, many of Kerfislróun’s customers host their business applications at DATACELL’s data centre facilities and pay my client for these services with the use of International payment cards.
2. Backbone ehf. id,no. 540710-1120, Skúlagötu 19, Reykjavik, (“Backbone”), is an Internet infrastructure company focusing operating physical lines necessary for local Internet connections in Iceland. Backbone has extensive plans to install fiber lines within Iceland to support my client’s data centre facilities as well as lines to and from the country.
3. iCell ehf id.no. 540710-1200, Skúlagötu 19, Reykjavik (“iCell”), is a retail Internet and wireless and telephone service provider which builds on my client’s DataCell’s data centre facilities and Backbones fiber infrastructure to offer and provide its services in Iceland. DATACELL has three subsidiaries:
DataCell is under equal ownership of Mr. Andreas Fink of Geneva switzerland and Mr. Ólafur Sigurvinsson of Reykjavik Iceland. Mr Fink has a controlling interest in a number undertakings in Europe and the US. These are.
(i) SMSRelay AG, Switzerland, a SMS Wholesale provider, (100%)
(ii) Fink Consulting GmbH, Switzerland, Telecom and IT Consulting and Resale (100%)
(iii) Alisanus GmbH, Switzerland, Management Company (100%)
(iv) BebbiCell AG, Paging Operator, VoIp operator (40%)
(v) Smart Telecom Ltd. UK company, (100%)
(vi) IceCell Inc., US company, (100%)
(vii) Global Networks Switzerland AG
(viii) BebbiCell Inc. Us company, (100%)
3. The conduct which is subject of the complaint:
On 18 October 2010, DataCell concluded a services agreement with Teller (previously known as PBS International A/S) and Korta which enabled DataCell to accept a number of international payment cards, namely Visa, Visa Electron, JCB and MasterCard (hereinafter “the Merchant Agreement”). The Merchant Agreement is enclosed as Annex 1.
On 7 December 2010, the payment card acceptance services provided by Teller and Korta to DATACELL under the Merchant Agreement were terminated without prior notice. Subsequently, DataCell has made several requests to Teller and Korta asking them to either resume the services under the Merchant Agreement or enter into a new payment card acceptance agreement with Data Cell.
Teller and Korta have, however, refused to resume the supply of payment card acceptance services to DataCell. In an e-mail dated 10 January 2011, enclosed as Annex 2, Teller has explained that the decisive reason for the termination of the services provided to DataCell was that Teller had been ordered to do so by Visa Europe and MasterCard.
On 9 June 2011 DataCell sent a letter to Teller, MC and Visa, demanding that the company’s Merchant Agreement be reactivated otherwise my client would have no alternative but to take the appropriate legal action. This has been to no avail, and according to Teller’s explanations acquiring firms in Europe are not about to be allowed by MC and Visa to open merchant agreements with DataCell, irrespective of whether the company would service Sunshine press /Wikileaks as a payment facilitator or not. DataCell has also tried to get merchant agreements with the other two acquiring companies operating in lceland (besides Teller/Korta), i.e. Valitor ltd. and Borgun ltd. (before the times of dual and multi acquiring, Valitor was the sole franchisee of Visa in lceland and Borgun held the MC franchise). However, these channels have not been opened and, according to the information from Teller mentioned above, are not about to be opened.
Visa Europe manages, controls, monitors, enforces and lays down the rules for the Visa network within the EEA area and provides authorisations and clearing services to its members. Visa Europe can discipline its members for violations of its Membership Regulation and the of the Global Rules of Visa Inc. The complainant submits that Visa Europe has very wide discretionary powers to discipline members under threat of expulsion from the system. The membership rules applicable to MasterCard member within the EEA area are structured in much the same way as those of Visa giving MasterCard extensive authority over its members/licensees as to how they shall conduct their businesses as issuers of MC cards or acquirers of MC card transactions.