Provisional text
JUDGMENT OF THE COURT (Second Chamber)
16 April 2026 (*)
( Reference for a preliminary ruling – Payment services in the internal market – Regulation (EU) 2015/751 – Article 2(10) – Interchange fees for card-based payment transactions – Article 2(11) – Net compensation – Article 4 – Cap on the amount of those fees – Article 5 – Prohibition of circumvention – Remuneration received by a co-branding partner from a three party payment card scheme – Application of that cap to that remuneration – Deduction of the value of the services provided by the co-branding partner )
In Case C‑549/23,
REQUEST for a preliminary ruling under Article 267 TFEU from the College van Beroep voor het bedrijfsleven (Supreme Administrative Court for Trade and Industry, Netherlands), made by decision of 29 August 2023, received at the Court on the same day, in the proceedings
American Express Europe SA,
American Express Carte France SA,
Visa Europe Ltd,
Mastercard Europe SA,
Koninklijke Luchtvaart Maatschappij NV
v
Autoriteit Consument en Markt,
intervening party:
International Card Services BV,
and
Autoriteit Consument en Markt
v
American Express Europe SA
American Express Carte France SA,
Visa Europe Ltd,
Mastercard Europe SA,
Koninklijke Luchtvaart Maatschappij NV,
intervening party:
International Card Services BV,
THE COURT (Second Chamber),
composed of K. Jürimäe, President of the Chamber, K. Lenaerts, President of the Court, acting as Judge of the Second Chamber, F. Schalin, M. Gavalec and Z. Csehi (Rapporteur), Judges,
Advocate General: J. Richard de la Tour,
Registrar: A. Lamote, Administrator,
having regard to the written procedure and further to the hearing on 12 December 2024,
after considering the observations submitted on behalf of:
–        American Express Europe SA and American Express Carte France SA, by J.K. de Pree, advocaat, and A. Komninos, dikigoros,
–        Visa Europe Ltd, by M.H.J.M. Immerzeel, W. Knibbeler and E.S. Lambooij, advocaten,
–        Mastercard Europe SA, by D.P. Kuipers, J. van Roosmalen and P.M. Waszink, advocaten,
–        Koninklijke Luchtvaart Maatschappij NV, by R.P. Raas, S. Ramsanjhal and J.R. van Angeren, advocaten,
–        the Autoriteit Consument en Markt, by J. Mulder and A.D. Röell, advocaten,
–        International Card Services BV, by J.P. Postma, Q.J. Tjeenk Willink and J.C.M. van der Beek, advocaten,
–        the European Commission, by C. Auvret, N. Cambien, I.V. Rogalski and H. Tserepa-Lacombe, acting as Agents,
after hearing the Opinion of the Advocate General at the sitting on 6 March 2025,
gives the following
Judgment
1        This request for a preliminary ruling concerns the interpretation of the second sentence of Article 2(10),
Article 2(11) and Articles 4 and 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 (OJ 2015 L 123, p. 1).
2        The request has been made in disputes between, in the first place, on the one hand, American Express Europe SA, American Express Carte France SA (together, ‘Amex’), Visa Europe Ltd, Mastercard Europe SA and Koninklijke Luchtvaart Maatschappij NV (‘KLM’), an airline in its capacity as Amex’s co-branding partner, and, on the other hand, the Autoriteit Consument en Markt (Authority for Consumers and Markets, Netherlands; ‘the ACM’), and, in the second place, the ACM and those various companies regarding an administrative direction on pain of penalty issued by the ACM to Amex for infringement of the provisions in Articles 4 and 5 of Regulation 2015/751 and a recovery decision resulting from a failure to comply with that direction.
Legal context
3        Recitals 10, 28, 29, 31 and 32 of Regulation 2015/751 read as follows:
‘(10)      Interchange fees are usually applied between the card-acquiring payment service providers and the card-issuing payment service providers belonging to a certain payment card scheme. Interchange fees are a main part of the fees charged to merchants by acquiring payment service providers for every card-based payment transaction. Merchants in turn incorporate those card costs, like all their other costs, in the general prices of goods and services. Competition between payment card schemes to convince payment service providers to issue their cards leads to higher rather than lower interchange fees on the market, in contrast with the usual price-disciplining effect of competition in a market economy. In addition to a consistent application of the competition rules to interchange fees, regulating such fees would improve the functioning of the internal market and contribute to reducing transaction costs for consumers.
…
(28)      Card-based payment transactions are generally carried out on the basis of two main business models, so-called “three party payment card schemes” (cardholder – acquiring and issuing scheme – merchant) and “four party payment card schemes” (cardholder – issuing bank – acquiring bank – merchant). Many four party payment card schemes use an explicit interchange fee, which is mostly multilateral. To acknowledge the existence of implicit interchange fees and contribute to the creation of a level playing field, three party payment card schemes using payment service providers as issuers or acquirers should be considered as four party payment card schemes and should follow the same rules, whilst transparency and other measures related to business rules should apply to all providers. However, taking into account the specificities which exist for such three party schemes, it is appropriate to allow for a transitional period during which Member States may decide not to apply the rules concerning the interchange fee cap if such schemes have a very limited market share in the Member State concerned.
(29)      The issuing service is based on a contractual relationship between the issuer of the payment instrument and the payer, irrespective of whether the issuer is holding the funds on behalf of the payer. The issuer makes payment cards available to the payer, authorises transactions at terminals or their equivalent and may guarantee payment to the acquirer for transactions that are in conformity with the rules of the relevant scheme. Therefore, the mere distribution of payment cards or technical services, such as the mere processing and storage of data, does not constitute issuing.
…
(31)      It is important to ensure that the provisions concerning the interchange fees to be paid or received by payment service providers are not circumvented by alternative flows of fees to issuers. To avoid this, the “net compensation” of fees paid or received by the issuer, including possible authorisation charges, from or to a payment card scheme, an acquirer or any other intermediary should be considered as the interchange fee. When calculating the interchange fee, for the purpose of checking whether circumvention is taking place the total amount of payments or incentives received by an issuer from a payment card scheme with respect to the regulated transactions less the fees paid by the issuer to the payment card scheme should be taken into account. Payments, incentives and fees considered could be direct (i.e. volume-based or transaction-specific) or indirect (including marketing incentives, bonuses, rebates for meeting certain transaction volumes). In checking whether circumvention of the provisions of this Regulation is taking place, issuers’ profits resulting from special programmes carried out jointly by issuers and payment card schemes and revenue from processing, licensing and other fees providing revenue to payment card schemes should, in particular, be taken into account. …
(32)      Consumers tend to be unaware of the fees paid by merchants for the payment instrument they use. At the same time, a series of incentivising practices applied by issuers (such as travel vouchers, bonuses, rebates, charge backs, free insurances, etc.) may steer consumers towards the use of payment instruments, thereby generating high fees for issuers. To counter this, the measures imposing restrictions on interchange fees should only apply to payment cards that have become mass products and merchants generally have difficulty refusing due to their widespread issuance and use (i.e. consumer debit and credit cards).
In order to enhance effective market functioning in the non-regulated parts of the sector and to limit the transfer of business from the regulated to the non-regulated parts of the sector, it is necessary to adopt a series of measures, including the separation of scheme and infrastructure, the steering of the payer by the payee and the selective acceptance of payment instruments by the payee.’
4        Chapter I of that regulation, headed ‘General provisions’, includes Article 1, headed ‘Scope’, which provides, in paragraphs 3 and 5:
‘3.      Chapter II does not apply to the following:
…
(c)      transactions with payment cards issued by three party payment card schemes.
…
5.      When a three party payment card scheme licenses other payment service providers for the issuance of card-based payment instruments or the acquiring of card-based payment transactions, or both, or issues card-based payment instruments with a co-branding partner or through an agent, it is considered to be a four party payment card scheme. However, until 9 December 2018 in relation to domestic payment transactions, such a three party payment card scheme may be exempted from the obligations under Chapter II, provided that the card-based payment transactions made in a Member State under such a three party payment card scheme do not exceed on a yearly basis 3% of the value of all card-based payment transactions made in that Member State.’
5        Article 2 of that regulation, headed ‘Definitions’, states as follows:
‘For the purposes of this Regulation, the following definitions shall apply:
…
(2)      “issuer” means a payment service provider contracting to provide a payer with a payment instrument to initiate and process the payer’s card-based payment transactions;
…
(10)      “interchange fee” means a fee paid for each transaction directly or indirectly (i.e. through a third party) between the issuer and the acquirer involved in a card-based payment transaction. The net compensation or other agreed remuneration is considered to be part of the interchange fee;
(11)      “net compensation” means the total net amount of payments, rebates or incentives received by an issuer from the payment card scheme, the acquirer or any other intermediary in relation to card-based payment transactions or related activities;
(12)      “merchant service charge” means a fee paid by the payee to the acquirer in relation to card-based payment transactions;
(13)      “payee” means a natural or legal person who is the intended recipient of funds which have been the subject of a payment transaction;
…
(17)      “four party payment card scheme” means a payment card scheme in which card-based payment transactions are made from the payment account of a payer to the payment account of a payee through the intermediation of the scheme, an issuer (on the payer’s side) and an acquirer (on the payee’s side);
(18)      “three party payment card scheme” means a payment card scheme in which the scheme itself provides acquiring and issuing services and card-based payment transactions are made from the payment account of a payer to the payment account of a payee within the scheme. When a three party payment card scheme licenses other payment service providers for the issuance of card-based payment instruments or the acquiring of card-based payment transactions, or both, or issues card-based payment instruments with a co-branding partner or through an agent, it is considered to be a four party payment card scheme;
…
(24)      “payment service provider” means any natural or legal person authorised to provide the payment services listed in the Annex to Directive 2007/64/EC [of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and repealing Directive 97/5/EC (OJ 2007 L 319, p. 1)] or recognised as an electronic money issuer in accordance with Article 1(1) of Directive 2009/110/EC [of the European Parliament and of the Council of 16 September 2009 on the taking up, pursuit and prudential supervision of the business of electronic money institutions amending Directives 2005/60/EC and 2006/48/EC and repealing Directive 2000/46/EC (OJ 2009 L 267, p. 7)]. A payment service provider can be an issuer or an acquirer or both;
…
(30)      “payment brand” means any material or digital name, term, sign, symbol or combination thereof, capable of denoting under which payment card scheme card-based payment transactions are carried out;
…
(32)      “co-branding” means the inclusion of at least one payment brand and at least one non-payment brand on the same card-based payment instrument;
…’
6        Chapter II of the same regulation, headed ‘Interchange fees’, includes Articles 3 to 5 of that regulation. Article 4 of Regulation 2015/751, headed ‘Interchange fees for consumer credit card transactions’, provides as follows:
‘Payment service providers shall not offer or request a per transaction interchange fee of more than 0,3% of the value of the transaction for any credit card transaction. For domestic credit card transactions Member States may define a lower per transaction interchange fee cap.’
7        Article 5 of that regulation, headed ‘Prohibition of circumvention’, provides:
‘For the purposes of the application of the caps referred to in Articles 3 and 4, any agreed remuneration, including net compensation, with an equivalent object or effect of the interchange fee, received by an issuer from the payment card scheme, acquirer or any other intermediary in relation to payment transactions or related activities shall be treated as part of the interchange fee.’
The dispute in the main proceedings and the questions referred for a preliminary ruling
8        It is clear from the order for reference that Amex operates a three party payment card scheme, within the meaning of Article 2(18) of Regulation 2015/751.
9        In 2010, Amex entered into a co-branding partnership with KLM which was to commence on 1 June 2011 and end on 1 June 2019;
as part of that scheme, Amex was to issue co-branded credit cards.
10      One aspect of the partnership concerns access to KLM’s loyalty programme (‘the Flying Blue programme’), which enables KLM’s customers to earn loyalty points (‘miles’) when travelling on KLM flights or making purchases from KLM’s partners. Customers may exchange their miles for KLM’s flights or other services. KLM and Amex agreed on a ‘points programme’ through which holders of an Amex card earn miles directly under the Flying Blue programme. To that end, Amex purchases miles and awards them to its cardholders for using their cards. Amex and KLM also cooperate to issue co-branded ‘company cards’.
11      Throughout that cooperation, in addition to a ‘signing bonus’, Amex paid KLM four other types of remuneration, namely (i) an annual fee
for the use of KLM’s commercial brands and access to the Flying Blue programme, (ii) a percentage of the remuneration that Amex receives from the cardholder for the use of the card, (iii) a percentage of the value of purchases made with the card, and (iv) remuneration for the purchase of ‘miles’.
12      In addition, it is also clear from the order for reference that KLM, in its capacity as payee in the context of co-branded card-based payment transactions, paid service charges to Amex.
13      In 2018, Amex and KLM concluded new partnership agreements. Under those agreements, Amex paid KLM a ‘singing bonus’ in 2018 and must pay KLM amounts corresponding to the annual fee for the use of KLM’s brands and for access to the Flying Blue programme and to the remuneration for the purchase of miles.
14      Prior to those new agreements, in May 2017, the ACM opened an investigation into the partnership between Amex and KLM. On the basis of that investigation, by decision of 6 March 2019, the ACM imposed on Amex an administrative direction on pain of penalty for infringement of Article 4 in conjunction with Article 5 of Regulation 2015/751, in so far as it had paid KLM interchange fees in excess of 0.3% of the value of the transaction (‘the decision of 6 March 2019’). The ACM determined that amount by adding together, over four years of partnership and in respect of each year, all the fees paid by Amex to KLM and then dividing the amount thus obtained by the volume of payments made with the co-branded credit cards. According to the ACM, the percentage thus calculated greatly exceeded the maximum permitted percentage of 0.3%. The administrative direction on pain of penalty was intended to ensure that Amex pays KLM a fee that does not exceed 0.3% of the value of the transaction on an annual and per transaction basis.
15      Amex and KLM brought an administrative action against that decision and, at the same time, made an application before the rechtbank Rotterdam (District Court, Rotterdam, Netherlands) for interim measures.
16      By order of 24 July 2019, the judge hearing applications for interim measures at the rechtbank Rotterdam (District Court, Rotterdam) suspended the operation of the direction at issue on the ground that it did not take into account, in the calculation of the amount of the interchange fees, the value of the miles purchased by Amex from KLM, which should have been deducted from the remuneration paid to KLM.
17      By decision of 22 January 2020 (‘the contested decision’), the ACM declared the objections raised by Amex and KLM against the administrative direction on pain of penalty imposed by the decision of 6 March 2019 to be unfounded. The ACM found that any remuneration paid by a three party payment card scheme to a co-branding partner comes within the concept of ‘net compensation’ in Article 2(11) of Regulation 2015/751, in so far as that remuneration relates to card-based payment transactions or related activities. If remuneration paid had to be classified as net compensation, it formed part of the interchange fee. In that regard, the ACM argues that Amex cannot deduct the consideration for the miles that it purchased from KLM from the remuneration that Amex paid to KLM. For the sake of completeness, the ACM argues that the remuneration at issue also comes under Article 5 of that regulation in so far as it has an object or effect equivalent to an explicit interchange fee.
18      Furthermore, by decision of 21 December 2020, the ACM claimed EUR 10 million from Amex as a penalty, on the grounds that it had not complied with the administrative direction imposed by the decision of 6 March 2019. While the ACM accepted the method used by Amex in its response to that direction, it found that Amex
had incorrectly (over-) calculated the value of the miles. In the ACM’s view, Amex
had not taken account, in its calculation, of the fact that not all cardholders use their miles. In addition, not all company cards issued by Amex are commercial cards within the meaning of Article 2(6) of Regulation 2015/751 with the result that they also come within the scope of Articles 4 and 5 of that regulation. Consequently, the ACM concluded that Amex had paid KLM higher remuneration than that permitted by the administrative direction on pain of penalty.
19      Amex and KLM challenged the decision at issue and the recovery decision of 21 December 2020 before the rechtbank Rotterdam (District Court, Rotterdam).
20      The rechtbank Rotterdam (District Court, Rotterdam) inferred from the judgment of 7 February 2018, American Express (C‑304/16, EU:C:2018:66), that a three party payment card scheme that concludes a co-branding agreement must be classified as a four party payment card scheme, even if the co-branding partner does not act as an issuer. Consequently, the three party payment card scheme operated by Amex, under which the co-branding agreement with KLM was concluded, is, in its view, equivalent to a four party payment card scheme, within the meaning of Article 1(5) of Regulation 2015/751. Accordingly, Articles 4 and 5 of that regulation, which, in principle, do not apply to three party payment card schemes, in accordance with Article 1(3) of that regulation, do, in its opinion, apply in the present case.
21      However, in the referring court’s view, Article 4 of
Regulation 2015/751 cannot apply in isolation to the partnership concluded by a three party payment card scheme with a co-branding partner not acting as an issuer, but rather only in conjunction with Article 5 of that regulation. Moreover, a fee paid to a co-branding partner, unlike a fee paid to an issuer, does not automatically constitute an interchange fee. According to the rechtbank Rotterdam (District Court, Rotterdam), the criterion used by the ACM to assess whether remuneration has an object or effect equivalent to an interchange fee, according to which that remuneration must be paid in the context of a co-branding partnership and must aim
at persuading co-branding partners to cooperate with a three party payment card scheme in order to encourage the issuing and use of payment cards, is not sufficient to assess whether the remuneration is equivalent to an interchange fee. That court held that the fact that such remuneration may encourage the issuing and use of payment cards does not make it possible to cap the interchange fee, since the object or effect equivalent to that remuneration must be assessed in the light of the objectives of Regulation 2015/751. Therefore, it found that the ACM should have examined the effect of the payments made to the co-branding partner on the internal market and transaction costs for consumers.
22      In those circumstances, the rechtbank Rotterdam (District Court, Rotterdam) held that the ACM had not sufficiently
demonstrated that the remuneration paid by Amex to KLM had an object or effect equivalent to an interchange fee and that it had therefore not been established that Amex had infringed Articles 4 and 5 of Regulation 2015/751. On that ground, that court annulled the decision at issue.
23      Amex, the ACM and KLM brought an appeal against the judgment of the rechtbank Rotterdam (District Court, Rotterdam) before the College van Beroep voor het bedrijfsleven (Supreme Administrative Court for Trade and Industry, Netherlands), which is the referring court.
24      That court has doubts as to whether and how Articles 4 and 5 of Regulation 2015/751 are to apply to payments made by a three party payment card scheme to its co-branding partner, such as those at issue before it. Furthermore, in the event that Articles 4 and 5 are to apply, it is uncertain whether, in order to determine, in the present case, whether
the payments made exceed the cap referred to in Article 4 of that regulation, it is necessary to deduct, from the amount of those payments, the service charges paid by KLM or the value of the miles purchased by Amex.
25      In those circumstances the College van Beroep voor het bedrijfsleven (Supreme Administrative Court for Trade and Industry) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:
‘(1)      Is Article 2(11) of [Regulation 2015/751] 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 from 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 [Regulation 2015/751], read in conjunction with the second sentence of Article 2(10) [of that regulation], to be interpreted as meaning that net compensation falls directly within the scope of [that] Article 4?
(3)      Is Article 5 of [Regulation 2015/751] 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 [Regulation 2015/751] 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 the purpose of that remuneration is to expand the business of the payment card scheme?
(b)      Is Article 5 of [that 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 [Questions 4(a) and (b)] is in the negative, the question then arises of 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 [Regulation 2015/751] to be interpreted as meaning that remuneration must already be regarded, for the purposes of the application of Article 4 of [that 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 [Regulation 2015/751] 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 [Regulation 2015/751] to be interpreted as meaning that not only monetary compensation from the co-branding partner but also the costs [of] 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 [Question 7(a)] is in the affirmative, what criteria should be used to determine that value?’
Consideration of the questions referred
The first question
26      By its first question, the referring court asks whether Article 2(11) of Regulation 2015/751 must be interpreted as meaning that the total net amount of payments, rebates or incentives received by a co-branding partner from a three party payment card scheme may be regarded as being ‘net compensation’, within the meaning of that provision, even if that co-branding partner is not itself an ‘issuer’ within the meaning of Article 2 (2) of that regulation.
27      The term ‘net compensation’ is defined in Article 2(11) of that regulation as being ‘the total net amount of payments, rebates or incentives received by an issuer from the payment card scheme, the acquirer or any other intermediary in relation to card-based payment transactions or related activities’.
28      Article 2(2) of that same regulation defines the concept of an ‘issuer’ as being ‘a payment service provider contracting to provide a payer with a payment instrument to initiate and process the payer’s card-based payment transactions’.
29      Article 2(10) of Regulation 2015/751 provides that net compensation is to be considered to be part of the interchange fee. The latter is to be subject to the cap laid down in Article 4 of Regulation 2015/751.
30      In that regard, the Court observes, first, that, under Article 1(3)(c) of Regulation 2015/751, Chapter II of that regulation – which includes Articles 4 and 5, laying down rules on the capping of interchange fees for transactions made by card by consumers – does not apply to ‘transactions with payment cards issued by three party payment card schemes’. However, Article 1(5) of that regulation provides, like Article 2(18) of that regulation, which defines the concept of a ‘three party payment card scheme’, that, when, inter alia, such a scheme issues card-based payment instruments with a co-branding partner, it is to be considered to be a four party payment card scheme. Therefore, although, as a general rule, a three party payment card scheme is not subject to the obligations stemming from Articles 4 and 5 of that regulation, that is not the case where it has issued card-based payment instruments with a co-branding partner, which causes it, in that situation, to be classified as a four party payment card scheme(see, to that effect, judgment of 7 February 2018, American Express, C‑304/16, EU:C:2018:66, paragraphs 50 to 52).
31      Consequently, where a three party payment card scheme enters into a co-branding arrangement, within the meaning of Article 2(32) of Regulation 2015/751, that scheme must be considered to be a four party payment card scheme, pursuant to Article 1(5) of that regulation, with the result that the obligations stemming from
Articles 3 to 5 and Article 7 of that regulation are applicable to it (judgment of 7 February 2018, American Express, C‑304/16, EU:C:2018:66, paragraph 72).
32      Second, the Court notes that ‘co-branding’ is defined in Article 2(32) of Regulation 2015/751 as meaning ‘the inclusion of at least one payment brand and at least one non-payment brand on the same card-based payment instrument’.
33      It cannot be inferred from that definition or from the wording of Article 1(5) or of Article 2(18) of Regulation 2015/751 that a co-branding partner that has entered into an arrangement with a three party payment card scheme necessarily acts within that scheme as an issuer, within the meaning of Article 2(2) of that regulation. If the EU legislature had wished to restrict the scope of Article 1(5), so that that would be the case, it would have made express provision to that effect (see, to that effect, judgment of 7 February 2018, American Express, C‑304/16, EU:C:2018:66, paragraphs 59 and 60).
34      Therefore, Article 1(5) of Regulation 2015/751 must be interpreted as meaning that, in the context of an arrangement between a co-branding partner, on the one hand, and a three party payment card scheme, on the other, it is not necessary that that co-branding partner act as an ‘issuer’, within the meaning of Article 2(2) of that regulation, in order for that scheme to be regarded as issuing card-based payment instruments with a co-branding partner and therefore to be considered to be a four party payment card scheme, within the meaning of Article 1(5) of Regulation 2015/751.
35      In the present case, the referring court is specifically uncertain as to whether the remuneration that a co-branding partner receives from a three party payment card scheme in relation to card-based payment transactions or related activities must be regarded as net compensation, within the meaning of Article 2(11) of Regulation 2015/751, even if it is common ground that that co-branding partner is not itself an issuer, within the meaning of Article 2(2) of that regulation.
36      It is true that the wording of the definition of the concept of ‘net compensation’, mentioned in paragraph 27 of the present judgment, does refer to payments received by an issuer from a payment card scheme.
37      Nevertheless, it follows that, interpreted in the context of that regulation and in the light of the objectives which it pursues, that definition must be understood as covering the net amount of payments, rebates or incentives received by a co-branding partner, which is not itself an issuer, from the payment card scheme.
38      That interpretation is not called into question by the fact, highlighted by the referring court, that the payments from Amex to KLM are not directly linked to a payment transaction, but constitute the remuneration for KLM’s cooperation.
39      The Court has held previously that 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 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, which relates to ensuring a level playing field in the market, if situations where a co-branding partner 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 that regulation (judgment of 7 February 2018, American Express, C‑304/16, EU:C:2018:66, paragraph 71).
40      As the Advocate General observed in point 29 of his Opinion, the concept of ‘net compensation’, within the meaning of Article 2(11) of Regulation 2015/751, must therefore be interpreted in the light of the fact that three party payment card schemes are in part to be treated in the same way as four party payment card schemes, as is stipulated in Article 1(5) of that regulation.
41      As is apparent from the findings set out in paragraph 31 of the present judgment, the EU legislature made a choice concerning to what extent four party payment card schemes should be treated in the same way as three party payment card schemes, precisely with a view to the application of the rules on interchange fees that are laid down in Articles 3 to 5 of Regulation 2015/751 and contained in Chapter II of that regulation, so that the objectives of that regulation can be achieved. Those objectives are, inter alia, according to recital 10 of that regulation, to improve the functioning of the internal market and to reduce transaction costs for consumers (see, to that effect, judgment of 7 February 2018, American Express, C‑304/16, EU:C:2018:66, paragraphs 67 and 84).
42      Specifically, it is clear from recital 28 of Regulation 2015/751 that the purpose of treating them in part in the same way, which involves making three party payment card schemes and four party payment card schemes subject to the same rules, is to take into account the fact that numerous payment card schemes, including three party payment card schemes that include co-branding partners which are to be treated in the same way as four party payment card schemes, use implicit interchange fees and, in doing so, to contribute to the creation of ‘a level playing field’ between those payment card schemes (see, to that effect, judgment of 7 February 2018, American Express, C‑304/16, EU:C:2018:66, paragraph 68).
43      Treating them in part in the same way and attaining those objectives entail interpreting the concept of ‘net compensation’, defined in Article 2(11) of that regulation, in the broad sense referred to in paragraph 37 of the present judgment.
44      Such an interpretation is also supported by Article 5 of Regulation 2015/751, which lays down a rule seeking to prohibit
circumvention of the caps referred to in Articles 3 and 4 of that regulation. Accordingly, under Article 5 of that regulation, any agreed remuneration, including net compensation, with an equivalent object or effect of the interchange fee, received by an issuer from the payment card scheme, acquirer or any other intermediary in relation to payment transactions or related activities is to be treated as part of the interchange fee.
45      In that regard, recital 31 of that regulation states that that rule refers, broadly, to flows of fees to issuers. That means that the ‘net compensation’ of fees paid or received by those issuers to or from a payment card scheme, an acquirer or any other intermediary should be regarded as coming within the scope of the interchange fee. It is stated in recital 31 that, when calculating the interchange fee and in order to prevent the rules from being circumvented, the total amount of payments or incentives received by an issuer from a payment card scheme with respect to the regulated transactions less the fees paid by the issuer to the payment card scheme should be taken into account. Such a rule is thus intended to take account of the fact that payments, incentives and fees may be direct, that is to say, volume-based or transaction-specific, or indirect, where they constitute commercial incentives, bonuses or rebates where a certain volume of transactions is reached.
46      In order to ensure that the different types of payment card schemes, including three party payment card schemes treated in the same way as four party payment card schemes, where the former include co-branding partners, are subject to the same rules, it can only be held, in the light of the foregoing, that the flows of fees received by those co-branding partners in the context of such a three party payment card scheme must be taken into account when determining ‘net compensation’, even in the situation where those partners do not act as issuers, within the meaning of Article 2(2) of Regulation 2015/751.
47      It follows that remuneration which a co-branding partner receives from a three party payment card scheme in the context of card transactions or related activities must be regarded as coming within the concept of ‘net compensation’, within the meaning of Article 2(11) of that regulation, where that remuneration has an object or effect equivalent to
an interchange fee.
48      In the light of all the foregoing, the answer to the first question is that Article 2(11) of Regulation 2015/751 must be interpreted as meaning that the total net amount of payments, rebates or incentives received by a co-branding partner from a three party payment card scheme may be regarded as being ‘net compensation’, within the meaning of that provision, even if that co-branding partner is not itself an ‘issuer’, within the meaning of Article 2(2) of that regulation, provided that the remuneration forming part of that amount has an object or effect equivalent to an interchange fee.
The second question
49      By its second question, the referring court seeks, in essence, to ascertain whether Articles 4 and 5 of Regulation 2015/751, read in conjunction with Article 2(10) and (11) thereof, must be interpreted as meaning that ‘net compensation’, within the meaning of the latter provision, comes directly within the scope of Article 4 or, alternatively, within the scope of the prohibition of circumvention laid down in Article 5 of that regulation.
50      The Court notes that, under Article 4 of Regulation 2015/751, the interchange fee proposed or requested by payment service providers for credit card transactions must not exceed 0.3% of the value of the transaction. As for Article 5 of that regulation, headed ‘Prohibition of circumvention’, it provides that, for the purposes of the application of that
cap, any agreed remuneration, including net compensation, with an equivalent object or effect of the interchange fee, received by an issuer from the payment card scheme, acquirer or any other intermediary in relation to payment transactions or related activities is to be treated as part of the interchange fee.
51      Those two provisions therefore have quite distinct scopes. First, Article 4 of Regulation 2015/751 refers specifically to the ‘interchange fee’ within the meaning of Article 2(10) of that regulation. It is a fee paid directly or indirectly for each transaction between the issuer and the acquirer involved in a card-based payment transaction, and Article 4 provides that that fee is not to exceed a cap set at 0.3% of the value of such a transaction.
52      Second, Article 5 of that regulation establishes a rule seeking to prohibit the circumvention of that cap by including in the interchange fee any other agreed remuneration, including net compensation, with an object or effect equivalent to such a fee.
53      As has been stated in paragraphs 44 to 47 of the present judgment, that rule is thus intended to ensure that the various types of payment card scheme, including three party payment card schemes treated as four party payment card schemes, where the former include co-branding partners, are made subject to the same rules. Achieving that objective involves taking account, broadly, of payments, incentives and direct fees, that is to say, those that are volume-based or transaction-specific, or indirect fees arising in those schemes which may influence the level of the interchange fee. In order to take account of the specificities of the different types of payment card scheme, the remuneration agreed under those schemes, including net compensation, must therefore be taken into account, for the application of the cap referred to in Article 4 of Regulation 2015/751, where they have an object or effect equivalent to an interchange fee.
54      While it is true that Article 2(10) of that regulation states that net compensation or other agreed remuneration is to be regarded as part of the interchange fee, it is apparent from the unambiguous wording of Article 5 of that regulation and from the subject matter of the anti-circumvention rule which it lays down that taking it into account in that way is justified for the purposes of applying that rule. It therefore follows that that compensation or that other remuneration comes within the scope of Article 5 where it has an object or effect equivalent to an interchange fee.
55      That interpretation is, moreover, borne out by the origin of Regulation 2015/751. Indeed, the reference to ‘agreed remuneration, including net compensation, with an equivalent object or effect of the interchange fee’, which initially appeared in Article 4 of the proposal for a Regulation of the European Parliament and of the Council on interchange fees for card-based payment transactions (COM/2013/0550 final), was moved to Article 5 of Regulation 2015/751. As the ACM acknowledges in its written observations, that text was moved as a direct consequence of a clause stipulating that certain three party payment card schemes should be treated in the same way as four party payment card schemes being added into that regulation, namely in the final version of Article 1(5) of that regulation.
56      It follows from the foregoing that the answer to the second question is that Articles 4 and 5 of Regulation 2015/751, read in conjunction with Article 2(10) and (11) thereof, must be interpreted as meaning that net compensation does come within the scope of the prohibition on circumvention laid down in Article 5 of that regulation.
The third to the fifth questions
57      By its third question, the referring court asks, in essence, whether Article 5 of Regulation 2015/751 applies to remuneration, including net compensation, received by a co-branding partner from the card payment scheme, where that partner is not a card issuer. If so, it asks, in the context of its fourth question, in essence, on what conditions that remuneration has ‘an equivalent object or effect of the interchange fee’, within the meaning of that provision. In that context, it asks, in particular, whether the purpose of that remuneration must be to encourage that scheme’s cardholders to use their cards. Lastly, by its fifth question, it wishes to ascertain whether it is necessary to examine the effect of that remuneration where it has been established that it had an object equivalent to an interchange fee.
58      The referring court therefore seeks to ascertain how to interpret the condition laid down in Article 5 of Regulation 2015/751 that the agreed remuneration, including net compensation, must have ‘an equivalent object or effect of the interchange fee’ in order to come within the scope of that provision, in particular where it concerns remuneration received by a co-branding partner who is not an issuer under a three party payment card scheme treated as a four party payment card scheme.
59      In those circumstances, it must be held that, by those questions, which it is appropriate to examine together, the referring court is asking, in essence, whether Article 5 of Regulation 2015/751 must be interpreted as meaning that the condition that the agreed remuneration, including net compensation, must have an ‘equivalent object or effect of the interchange fee’ requires it to be determined whether remuneration agreed between a co-branding partner that is not an issuer and a three party payment card scheme in relation to payment transactions or activities related to those cards, has an incentive object or, alternatively, an incentive effect that is equivalent to such an interchange fee.
60      In the first place, the Court finds that – as is apparent from the answers to the first and second questions referred – Article 5 of Regulation 2015/751 is to apply to remuneration, including net compensation, received by a co-branding partner from the payment card scheme where that partner is not a card issuer. Applying that article in that manner is one way in which it is appropriate to treat three party payment card schemes, where they involve a co-branding partner, in the same way as four party payment card schemes. Treating them in the same way contributes to achieving the objective of that regulation, which is to create a level playing field between those schemes by applying the same rules to them. As is apparent from paragraph 42 of the present judgment, the purpose of that provision is therefore to take account of the existence of implicit interchange fees in the context of three party payment card schemes treated as four party payment card schemes, where the former include co-branding partners.
61      To that end, Article 5 of Regulation 2015/751 is to apply to remuneration agreed under three party payment card schemes which are not explicitly interchange fees, but which have an object or effect that is equivalent to such fees.
62      In addition, it is apparent from recital 31 of that regulation, mentioned in paragraph 45 of the present judgment, that the purpose of the rule laid down in Article 5 is to take account of the fact that, in payment card schemes, payments, incentives and fees may be direct, that is to say,
volume-based or transaction-specific, or indirect, where they constitute marketing incentives, bonuses or rebates for meeting certain transaction volumes.
63      It is therefore in the light of the definition of the concept of ‘interchange fee’, which is defined in Article 2(10) of Regulation 2015/751, and recital 31, that the condition that remuneration must have ‘an equivalent object or effect of the interchange fee’ in order to come within the scope of Article 5 of that regulation must be interpreted.
64      In that regard, the Court notes, first, that the ‘interchange fee’, within the meaning of Article 2(10) of Regulation 2015/751, means a fee which is paid for each transaction between the issuer and the acquirer involved in a card-based payment transaction. As is apparent from recital 10 of that regulation, interchange fees are usually charged to merchants by the acquiring payment service providers for every card-based payment transaction and have an impact on the cost of transactions to consumers.
65      It follows that, by analogy, remuneration which, first, is paid by the three party payment card scheme to the co-branding partner for volume or transactions linked to the use of that card and which, second, has an impact on the cost of the service of using that card for the consumer is capable of constituting remuneration which has an ‘equivalent object of the interchange fee’ within the meaning of Article 5 of Regulation 2015/751.
66      Second, as regards the condition that agreed remuneration has an ‘equivalent effect of the interchange fee’, within the meaning of that provision, it is apparent from its wording and from the objective pursued by that provision that the purpose of that condition is to cover any other remuneration agreed under the payment card scheme – including remuneration between the three party payment card scheme and the co-branding partner – that is not directly based on volume- or card-based transactions, but which has an effect on that use.
67      It follows from the clarifications set out in recitals 31 and 32 of Regulation 2015/751, and from the definition of ‘net compensation’, within the meaning of Article 2(11) of that regulation, that that condition covers payments in relation to card-based payment transactions or related activities that are intended to fund practices incentivising the use of that card, such as commercial incentives, bonuses or rebates that have an effect on the cost of using the card for the consumer.
68      In the second place, the Court notes that it follows from the use of the phrase ‘or’ in the clear and unequivocal wording of Article 5 that the criterion contained in that article is alternative in nature. As the Advocate General observed in point 55 of his Opinion, it is sufficient if the remuneration received has either an object or an effect equivalent to an interchange fee in order to be regarded as coming within the scope of that provision, for the purposes of applying the caps referred to in Articles 3 and 4 of that regulation.
69      It is, however, for the court to determine, taking into account the foregoing and in the light of the characteristics of the remuneration agreed between the three party payment card scheme and the co-branding partner at issue in the main proceedings, whether that remuneration has an object or, alternatively, effect that is equivalent to an interchange fee, with the result that that remuneration comes within the scope of Article 5 of Regulation 2015/751.
70      It follows that the answer to the third to fifth questions is that Article 5 of Regulation 2015/751 must be interpreted as meaning that the condition that the agreed remuneration, including net compensation, must have an ‘equivalent object or effect of the interchange fee’ requires it to be determined whether remuneration agreed between a co-branding partner that is not an issuer, and a three party payment card scheme in relation to payment transactions or activities related to those cards, has an incentive object or, alternatively, an incentive effect that is equivalent to such an interchange fee, which involves taking into account the object or effect of that remuneration on the incentivisation of the consumer to use those cards.
The sixth question
71      By its sixth question, the referring court is asking, in essence, whether Article 2(11) of Regulation 2015/751 must 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 payments, rebates or incentives received by that partner from that payment card scheme in relation to card-based payment transactions or related activities.
72      In that regard, the Court notes that Article 2(11) of Regulation 2015/751 defines the concept of ‘net compensation’ as being ‘the total net amount of payments, rebates or incentives received by an issuer from the payment card scheme, the acquirer or any other intermediary in relation to card-based payment transactions or related activities’.
73      Moreover, the Court observes that Article 2(12) of that regulation defines the ‘merchant service charge’ as ‘a fee paid by the payee to the acquirer in relation to card-based payment transactions’. In that regard, under Article 2(13) of that regulation, ‘payee’ is to be understood as meaning ‘a natural or legal person who is the intended recipient of funds which have been the subject of a payment transaction’.
74      Thus, it follows from the clear wording of Article 2(12) of Regulation 2015/751 that the service charge paid by the merchant forms part of the relationship between a merchant, namely the payee within the meaning of Article 2(13) of that regulation, and the acquirer. By contrast, since that charge is not part of the legal relationship between the co-branding partner and the acquirer, namely the three party payment card scheme, it does not come within the concept of ‘net compensation’ within the meaning of Article 2(11) of that regulation.
75      In a three party payment card scheme, the same entity, namely the payment card scheme, performs the functions of acquirer and issuer and a co-branding partner may also be a merchant using the services of the scheme, that is to say, a payee within the meaning of that regulation. In such a configuration, a co-branding partner may use the services of that scheme and accept payment transactions with payment instruments issued by that same scheme and pay a service charge to that scheme. However, such a service charge paid by the co-branding partner is paid by the latter not in that capacity, but as payee. That service charge is unrelated to the partnership concluded with the payment card scheme and, in any event, would also have to be paid under another payment card scheme. Accordingly, that charge is not part of the legal relationship between the co-branding partner and the acquirer.
76      Consequently, the service charge paid by the merchant cannot be deducted from the total amount of payments, rebates or incentives received by the co-branding partner from the three party payment card scheme when calculating that net compensation, even if it is that co-branding partner who is operating as a merchant.
77      It follows from the foregoing that Article 2(11) of Regulation 2015/751 must be interpreted as meaning that a ‘merchant service charge’ paid by a co-branding partner to a three party payment card scheme may not be deducted from payments, rebates or incentives received by the co-branding partner from that payment card scheme in relation to card-based payment transactions or related activities.
The seventh question
78      By its seventh question, the referring court asks, in essence, whether Article 2(11) of Regulation 2015/751 must be interpreted as allowing, for the purposes of calculating net compensation, deduction from the total amount received by the co-branding partner from the three party payment card scheme not only of the monetary remuneration paid by that partner, but also of the non-monetary benefits which that partner pays to that payment card scheme and, if so, on the basis of which criteria that value must be determined.
79      As is apparent from the answer to the first question, net compensation, in the case of a three party payment card scheme which issues card-based payment instruments with a co-branding partner, corresponds to the total net amount of payments, rebates or incentives received by the co-branding partner from the payment card scheme.
80      In order to determine whether and, if so, to what extent, non-monetary compensation may be deducted from remuneration paid to the co-branding partner by the three party payment card scheme, first, it must be recalled that Article 2(11) of Regulation 2015/751 refers to ‘payments, rebates or incentives’. The concept of ‘incentive’ has a broad scope which goes beyond monetary incentives alone. The use of that term in the plural after the reference to payments and rebates also tends to confirm that the compensation referred to is not limited to monetary compensation alone.
81      That broad interpretation of Article 2(11) of Regulation 2015/751 is borne out by recital 31 of that regulation. As stated in paragraph 45 of the present judgment, payments, incentives and fees may be both direct (volume-based or transaction-specific) or indirect (marketing incentives, bonuses, rebates for meeting certain transaction volumes), with the result that the concept of an ‘incentive’ cannot be understood as covering solely monetary remuneration.
82      In addition, recital 31 states that, in checking whether circumvention of the provisions of that regulation is taking place, issuers’ profits resulting from special programmes carried out jointly by issuers and payment card schemes and revenue from processing, licensing and other fees providing revenue to payment card schemes must, in particular, be taken into account.
83      Second, to interpret Article 2(11) of Regulation 2015/751 as meaning that only monetary contributions may be deducted from the remuneration paid to the co-branding partner would undermine the objectives pursued by that regulation and the rule laid down in Article 5 of that regulation, the purpose of which is to prohibit the circumvention of the caps referred to in Articles 3 and 4 of that regulation.
84      The value of non-monetary remuneration must be determined by reference to its financial value. If the value of the non-monetary remuneration were to be determined contractually by the three party payment card scheme and the co-branding partner, that value could be overestimated in order to compensate for the remuneration paid by that scheme to the co-branding partner. That would undermine the objective of Regulation 2015/751 of ensuring a level playing field on the market and reducing the cost of payment card transactions for consumers. It is therefore for the referring court to take into consideration the financial value of the non-monetary incentive by determining that value on the basis of all the elements of the case before it, and in particular its genuine financial value where the service may be purchased by other persons and its price has been made public.
85      In the light of the foregoing, the answer to the seventh question is that Article 2(11) of Regulation 2015/751 must be interpreted as allowing, for the purposes of calculating net compensation, deduction from the total amount received by the co-branding partner from the three party payment card scheme not only of the monetary remuneration paid by that partner, but also of the non-monetary benefits which that partner pays to that payment card scheme, which must be valued taking into account their genuine financial value.
Costs
86      Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.
On those grounds, the Court (Second Chamber) hereby rules:
1.      Article 2(11) 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 the total net amount of payments, rebates or incentives received by a co-branding partner from a three party payment card scheme may be regarded as being ‘net compensation’, within the meaning of that provision, even if that co-branding partner is not itself an ‘issuer’, within the meaning of Article 2(2) of that regulation, provided that the remuneration forming part of that amount has an object or effect equivalent to an interchange fee.
2.      Articles 4 and 5 of Regulation 2015/751, read in conjunction with Article 2(10) and (11) thereof, must be interpreted as meaning that net compensation does come within the scope of the prohibition on circumvention laid down in Article 5 of that regulation.
3.      Article 5 of Regulation 2015/751 must be interpreted as meaning that the condition that the agreed remuneration, including net compensation, must have an ‘equivalent object or effect of the interchange fee’ requires it to be determined whether remuneration agreed between a co-branding partner that is not an issuer and a three party payment card scheme in relation to payment transactions or activities related to those cards, has an incentive object or, alternatively, an incentive effect that is equivalent to such an interchange fee, which involves taking into account the object or effect of that remuneration on the incentivisation of the consumer to use those cards.
4.      Article 2(11) of Regulation 2015/751 must be interpreted as meaning that a ‘merchant service charge’ paid by a co-branding partner to a three party payment card scheme may not be deducted from payments, rebates or incentives received by the co-branding partner from that payment card scheme in relation to card-based payment transactions or related activities.
5.      Article 2(11) of Regulation 2015/751 must be interpreted as allowing, for the purposes of calculating net compensation, deduction from the total amount received by the co-branding partner from the three party payment card scheme not only of the monetary remuneration paid by that partner, but also of the non-monetary benefits which that partner pays to that payment card scheme, which must be valued taking into account their genuine financial value.
[Signatures]
*      Language of the case: Dutch.