Case C‑304/16
American Express Company
v
The Lords Commissioners of Her Majesty’s Treasury
(Request for a preliminary ruling from the High Court of Justice (England & Wales), Queen’s Bench Division (Administrative Court))
Reference for a preliminary ruling — Regulation (EU) 2015/751 — Interchange fees for card-based payment transactions — Article 1(5) — Three party payment card scheme treated as equivalent to a four party payment card scheme — Conditions — Issuance by a three party payment card scheme of card-based payment instruments ‘with a co-branding partner or through an agent’ — Article 2(18) — Concept of ‘three party payment card scheme’ — Validity)
Summary — Judgment of the Court (First Chamber), 7 February 2018
Questions referred for a preliminary ruling—Jurisdiction of the Court—Limits—Questions referred in a fictitious national dispute—Inadmissibility—No act or omission of a national authority capable of giving rise to an action for judicial review—Not capable, in itself, of rendering the dispute fictitious
(Art. 267 TFEU)
Approximation of laws—Payment services in the internal market—Regulation 2015/751—Interchange fees for card-based payment transactions—Three party payment card scheme—Treated as equivalent to a four party payment card scheme—Conditions—Whether it is a prerequisite of a three party payment card scheme being considered to be a four party payment card scheme that a co-branding partner who has entered into an arrangement with that scheme acts as an issuer of a payment instrument—Not a prerequisite
(European Parliament and Council Regulation 2015/751, Recital 28 and Art. 1(5) and (2), point 2)
Acts of the institutions—Statement of reasons—Obligation—Scope and limits—Regulation providing that, in certain situations, three party payment card schemes should be treated in the same way as four party payment card schemes
(Art. 296 TFEU; European Parliament and Council Regulation No 2015/751, Art. 1(5))
Approximation of laws—Payment services in the internal market—Regulation 2015/751—Interchange fees for card-based payment transactions—Three party payment card scheme—Treated as equivalent to a four party payment card scheme—Conditions—Whether it is a prerequisite of a three party payment card scheme being considered to be a four party payment card scheme that a co-branding partner who has entered into an arrangement with that scheme acts as an issuer of a payment instrument—Not a prerequisite—Breach of the principle of proportionality—None
(Art. 5(4) TEU; European Parliament and Council Regulation 2015/751, Art. 1(5) and (2), point 18)
See the text of the judgment.
(see paras 33, 34)
Article 1 (5) of Regulation (EU) 2015/751 of the European Parliament and of the Council of 29 April 2015 on interchange fees for card-based payment transactions must be interpreted as meaning that, in the context of an arrangement between a co-branding partner or an agent, on the one hand, and a three party payment card scheme, on the other, it is not a prerequisite of that scheme being regarded as issuing card-based payment instruments with a co-branding partner or through an agent and therefore being considered to be a four party payment card scheme, within the meaning of Article 1 (5) of Regulation 2015/751, that that co-branding partner or agent act as an issuer, within the meaning of Article 2(2) of that regulation.
That being the case, as argued in essence by the Commission, it is not inconceivable that some type of consideration or benefit might be identified as constituting an implicit interchange fee, within the meaning of recital 28 of Regulation 2015/751, even though the co-branding partner or agent with which the three party payment card scheme concludes an arrangement is not necessarily involved in the issuing activity of that scheme. It might, therefore, prove difficult to achieve the objectives of Regulation 2015/751, in particular that of Article 1(5) of that regulation, of ensuring a level playing field in the market, if situations where a co-branding partner or agent does not act as an issuer, within the meaning of Article 2(2) of that regulation, were, for that reason, to be exempted from the rules laid down in Articles 3 to 5 and Article 7 of Regulation 2015/751.
(see paras 71, 73, operative part 1)
See the text of the judgment.
(see paras 75-77, 79, 80)
See the text of the judgment.
(see paras 85-87)