Martijn van de Hel and Paul Breithaupt have successfully represented a retailer in proceedings against the Netherlands Authority for Consumers and Markets (ACM) before the Rotterdam District Court and Trade and Industry Appeals Tribunal (CBb). The proceedings centred on the fees paid to the retailer for transactions made with credit cards to which the retailer had attached its name as a ‘co-brander’.
In 2020, the ACM imposed an order subject to a penalty on a payment card scheme operator and a credit card issuer (the card issuer). One of the purposes of this order subject to a penalty was to prohibit the card issuer from paying a fee of more than 3% of the transaction value to the ‘co-branding partner’, known as the interchange fee. That payment allegedly violated Regulation (EU) 2015/751 (the Regulation), which aims to prevent consumers from paying high transaction fees.
Interchange fees are generally paid by a card issuer for payment transactions within a so-called four party payment card scheme (cardholder, issuing bank, accepting bank and retailer) or a three party payment card scheme (cardholder, accepting bank and issuing scheme, retailer), including the co-branding partner. The Regulation pertains to these fees.
According to the operator, the card issuer and the retailer, the Regulation did not apply here because this case did not involve a pure four party scheme or a three party scheme with co-branding, but rather a four party scheme with co-branding. The court agreed, and annulled the penalty order. A competing card issuer appealed that judgment. The CBb subsequently found that the card issuer no longer had an interest in bringing an action because the credit card to which the retailer had attached its name was no longer in use.
In other proceedings, the ACM also imposed an order subject to a penalty on a card issuer. That case concerned a three party scheme with a co-branding partner. Also in that case the card issuer had applied an excessively high interchange fee (> 3%), according to the ACM. The court also annulled that penalty order. The CBb then raised preliminary questions on appeal regarding the interpretation of the Regulation. The CBb wishes to know, among other things, to what fees the Regulation applies when parties jointly issue a credit card.
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