# C_2018123EN.01000501.xml

| 9.4.2018 | EN | Official Journal of the European Union | C 123/5 |
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9.4.2018

EN

Official Journal of the European Union

C 123/5

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Judgment of the Court (First Chamber) of 7 February 2018 (Request for a preliminary ruling from the High Court of Justice (England & Wales), Queen’s Bench Division (Administrative Court) — United Kingdom) — The Queen, on the application of American Express Company v The Lords Commissioners of Her Majesty’s Treasury

(Case C-643/16) (1)

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((Reference for a preliminary ruling - Directive (EU) 2015/2366 - Payment services in the internal market - Article 35(1) - Obligation to provide authorised or registered payment service providers with access to payment systems - Point (b) of the first subparagraph of Article 35(2) - Inapplicability of that obligation to payment systems composed exclusively of payment service providers belonging to a group - Applicability of that obligation to three party payment card schemes that have entered into co-branding or agency arrangements - Validity))

(2018/C 123/06)

Language of the case: English

Referring court

Referring court

High Court of Justice (England & Wales), Queen’s Bench Division (Administrative Court)

Parties to the main proceedings

Parties to the main proceedings

Applicant: The Queen, on the application of American Express Company

Applicant:

Defendant: The Lords Commissioners of Her Majesty’s Treasury

Defendant:

Interveners in support of the defendant: Diners Club International Limited, Mastercard Europe SA

Interveners in support of the defendant:

Operative part of the judgment

Operative part of the judgment

| 1. | Point (b) of the first subparagraph of Article 35(2) of Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC, must be interpreted as meaning that a three party payment card scheme that has entered into a co-branding agreement with a co-branding partner does not lose the benefit of the exception provided for by that provision and, therefore, is not subject to the obligation laid down in Article 35(1) of that directive in a situation where that co-branding partner is not a payment service provider and does not provide payment services within that scheme with respect to the co-branded products. However, a three party payment card scheme that makes use of an agent for the purposes of supplying payment services loses the benefit of that exception and, therefore, is subject to the obligation laid down in Article 35(1). |
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1.

Point (b) of the first subparagraph of Article 35(2) of Directive (EU) 2015/2366 of the European Parliament and of the Council of 25 November 2015 on payment services in the internal market, amending Directives 2002/65/EC, 2009/110/EC and 2013/36/EU and Regulation (EU) No 1093/2010, and repealing Directive 2007/64/EC, must be interpreted as meaning that a three party payment card scheme that has entered into a co-branding agreement with a co-branding partner does not lose the benefit of the exception provided for by that provision and, therefore, is not subject to the obligation laid down in Article 35(1) of that directive in a situation where that co-branding partner is not a payment service provider and does not provide payment services within that scheme with respect to the co-branded products. However, a three party payment card scheme that makes use of an agent for the purposes of supplying payment services loses the benefit of that exception and, therefore, is subject to the obligation laid down in Article 35(1).

| 2. | Consideration of the second question has revealed nothing capable of affecting the validity of Article 35 of Directive 2015/2366. |
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2.

Consideration of the second question has revealed nothing capable of affecting the validity of Article 35 of Directive 2015/2366.

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(1)  OJ C 78, 13.3.2017.

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