Request for a preliminary ruling from the College van Beroep voor het bedrijfsleven (Netherlands) lodged on 29 August 2023 – American Express Europe SA, American Express Carte France SA, Visa Europe Ltd, MasterCard Europe SA, Autoriteit Consument en Markt, Koninklijke Luchtvaart Maatschappij N, other party: International Card Services BV
(Case C-549/23, American Express Europe and Others)
Language of the case: Dutch
Referring court
College van Beroep voor het bedrijfsleven
Parties to the main proceedings
Applicants: American Express Europe SA, American Express Carte France SA, Visa Europe Ltd, MasterCard Europe SA, Autoriteit Consument en Markt, Koninklijke Luchtvaart Maatschappij NV
Other party: International Card Services BV
Questions referred
1. Is Article 2(11) of Regulation (EU) 2015/7511 of the European Parliament and of the Council of 29 April 2015 on interchange fees for card-based payment transactions (‘the Regulation’) to be interpreted, for the purposes of the application of the substantive provisions of that regulation, as meaning that the total net amount of payments, rebates or incentives received by a co-branding partner of a three party payment card scheme in relation to card-based payment transactions or related activities is to be regarded as net compensation, even if that co-branding partner is not itself an issuer?
2. Is Article 4 of the Regulation, read in conjunction with the second sentence of Article 2(10), to be interpreted as meaning that net compensation falls directly within the scope of Article 4?
3. Is Article 5 of the Regulation to be interpreted as also covering remuneration, including net compensation, received by a co-branding partner from the payment card scheme, if the co-branding partner is not an issuer?
4 a. Is Article 5 of the Regulation to be interpreted as meaning that remuneration, including net compensation, received by a co-branding partner in relation to payment transactions or related activities has an equivalent object to the interchange fee if that remuneration has the intention of expanding the business of the payment card scheme?
b. Is Article 5 of the Regulation to be interpreted as meaning that remuneration, including net compensation, received by a co-branding partner in relation to payment transactions or related activities has an equivalent effect to the interchange fee if that remuneration has the effect of expanding the business of the payment card scheme?
c. If the answer to those questions is in the negative, the question then arises as to which criteria and/or factors should be used to assess whether remuneration, including net compensation, received by a co-branding partner in relation to payment transactions or related activities has an equivalent object or effect to the interchange fee?
5. Is Article 5 of the Regulation to be interpreted as meaning that remuneration must already be regarded, for the purposes of the application of Article 4 of the Regulation, as forming part of the interchange fee if the remuneration has an equivalent object to the interchange fee?
6. Is Article 2(11) of the Regulation to be interpreted as meaning that a merchant service charge paid by a co-branding partner to a three party payment card scheme may be deducted from the payments, rebates or incentives received by the co-branding partner from the payment card scheme in relation to card-based payment transactions or related activities?
7 a. Is Article 2(11) of the Regulation to be interpreted as meaning that not only monetary compensation from the co-branding partner but also the costs or economic consideration for a service supplied by a co-branding partner may be deducted from the total amount received by the co-branding partner from the payment card scheme?
b. If the answer to that question is in the affirmative, what criteria should be used to determine that value?
____________
1 OJ 2015 L 123, p.1.