EN Official Journal of the European Union C 168/22

Communication of the Commission published pursuant to Article 27(4) of Council Regulation (EC) No 1/2003 in Case AT.39398 — VISA MIF

(Text with EEA relevance)

2013/C 168/07

1. INTRODUCTION

1. According to Article 9 of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty (1), the Commission may decide — in cases where it intends to adopt a decision requiring that an infringement is brought to an end and the parties concerned offer commitments to meet the concerns expressed to them by the Commission in its preliminary assessment — to make those commitments binding on the undertakings. Such a decision may be adopted for a specified period and shall conclude that there are no longer grounds for action by the Commission. According to Article 27(4) of the same Regulation, the Commission shall publish a concise summary of the case and the main content of the commitments. Interested parties may submit their observations within the time limit fixed by the Commission.

2. SUMMARY OF THE CASE

2. On 3 April 2009, the Commission adopted a statement of objections against Visa Europe Limited (‘Visa Europe’), Visa Inc. and Visa International Services Association.

3. The statement of objections outlined the Commission's preliminary view that Visa Europe, Visa Inc. and Visa International Services Association have infringed Article 101 of the TFEU and Article 53 of the EEA Agreement by setting multilaterally agreed interchange fees (‘MIFs’) that apply to cross-border and certain domestic point of sale transactions with VISA, VISA Electron and V PAY consumer payment cards within the EEA.

4. Interchange fees are in effect paid by a merchant's bank (‘acquirer’) to a cardholder's bank (‘issuer’) for each transaction made at a merchant outlet with a payment card. When a cardholder uses a payment card to buy goods or services from a merchant, the merchant in effect pays a merchant service charge to its acquirer. The acquirer keeps part of this charge (the acquirer's margin), and the rest is passed on to the issuer (the MIF) and the scheme operator (in this case, Visa Europe and Visa Inc.). In practice, a large part of the merchant service charge is determined by the MIF.

5. The statement of objections expressed the preliminary view that the MIFs have as their object and effect an appreciable restriction of competition in the acquiring markets to the detriment of merchants and indirectly their customers. The MIFs appeared to inflate the base on which acquirers set merchant service charges by creating an important cost element common to all acquirers. According to the Commission's preliminary view, the MIFs were not objectively necessary. The restrictive effect in the acquiring markets was further reinforced by the effect of the MIFs on the network and issuing markets as well as by other network rules and practices (‘honour all cards’ rule, ‘no discrimination’ rule and blending). Furthermore, according to the Commission's preliminary views set out in the statement of objections, the MIFs did not meet the requirements for receiving an exception under Article 101(3) of the TFEU of producing efficiencies with a fair share of the resulting benefit being passed on to consumers.

6. On 8 December 2010, the Commission adopted a decision pursuant to Article 9 of Regulation (EC) No 1/2003 (the ‘commitment decision’). The decision made legally binding on Visa Europe for four years the commitments to: (i) cap at 0,20 % the weighted average MIF applicable to consumer debit transactions covered by the proceedings and (ii) maintain and/or introduce a number of changes to their network rules (‘transparency measures’).

7. The commitments however did not cover MIFs for consumer credit cards in respect of which the Commission issued a supplementary statement of objections on 31 July 2012. The supplementary statement of objections, which constitutes a preliminary assessment within the meaning of Article 9(1) of Regulation (EC) No 1/2003, expanded the statement of objections and reflected the changes in the scope of the procedure, namely it applies only to consumer credit card MIFs. It also extended the scope of proceedings to the direct application of inter-regional (or international) MIFs where merchants are located in the EEA and it identifies a potential infringement with respect to Visa Europe's rules on cross-border acquiring.

8. Accordingly, the proceedings now cover (reproduced only in a summarised way): — intra-regional multilaterally agreed credit interchange fees set by Visa Europe (‘intra-regional MIFs’) applying either directly to cross-border transactions or by default to domestic transactions (2), — country-specific credit MIFs set by Visa Europe (3), — the potential default application of inter-regional MIFs in the absence of equivalent interchange fees and their direct application to transactions when using cards issued outside the EEA at merchants located in the EEA (4), — the rules relating to cross-border acquiring as a restriction of competition.

9. The proceedings address the network rules of Visa Europe related to the MIFs already included in the statement of objections, namely the ‘honour all cards’ rule, the ‘no discrimination’ rule and the widespread practice of blending of merchant service charges (‘MSCs’). The latter rules are assessed not as potential infringements of the competition rules in themselves, but in their capacity of enhancing the restrictive effect of the MIFs.

10. The supplementary statement of objections was also sent to Visa Inc. and Visa International Service Association on 24 April 2013.

3. THE MAIN CONTENT OF THE OFFERED COMMITMENTS

11. Visa Europe, as one of the parties subject to the proceedings, does not agree with the Commission’s preliminary assessment. It has nevertheless offered commitments pursuant to Article 9 of Regulation (EC) No 1/2003, to meet the Commission’s competition concerns. The commitments are briefly summarised below and published in full in English on the website of the Directorate-General for Competition at: http://ec.europa.eu/competition/index_en.html

12. Visa Europe commits to cap its yearly weighted average intra-EEA credit MIFs applicable to transactions with its consumer credit cards at a level of 0,3 % two months following the notification of the commitment decision to Visa Europe.

13. The cap will also apply individually in each of those EEA countries for which Visa Europe directly sets specific domestic consumer credit MIF rates and in those EEA countries where the intra-EEA credit MIFs apply to domestic transactions in the absence of other MIFs.

14. Visa Europe also proposes to ensure that, as from 1 January 2015, — the 0,3 % credit MIF cap also applies to all MIFs set by Visa Europe regarding transactions carried out with merchants located within the EEA with Visa consumer credit cards issued in non-EEA countries belonging to the Visa Europe territory (5) (‘intra-Visa Europe non-EEA credit MIFs’), and — the 0,2 % debit MIF cap also applies to all MIFs set by Visa Europe regarding transactions carried out with merchants located within the EEA with Visa consumer debit cards issued in non-EEA countries belonging to the Visa Europe territory (‘intra-Visa Europe non-EEA debit MIFs’).

15. Visa Europe commits to amend its rules on cross-border acquiring from 1 January 2015 to allow cross-border acquirers to offer either the domestic debit MIF or the domestic credit MIF applicable in the location of the merchant or a MIF rate of 0,2 % for consumer debit transactions and 0,3 % for consumer credit transactions, subject to certain conditions.

16. Visa Europe commits to continue to implement further transparency measures. In particular, Visa Europe commits: — to introduce a rule which requires acquirers to offer merchants merchant service charge pricing on a ‘MIF plus plus’ basis for an administrative fee (in other words, acquirers must, if requested, clearly break down in their contracts and invoices the MSC into three components, namely the MIF, all the other applicable payment system fees and the acquirer’s fee). Visa Europe will require acquirers to implement this rule within 12 months following the notification of the commitment decision to Visa Europe with regard to all new agreements and within 18 months for existing contracts, — to introduce a simplified MIF structure for MIFs set by Visa Europe to provide for a reduction of at least 25 % in the number of fee categories to aid transparency and comparison between rates.

17. Visa Europe shall appoint a monitoring trustee to monitor Visa Europe’s compliance with the commitments. Before appointment, the Commission shall have the power to approve or reject the proposed trustee.

18. The commitments will be valid for a period of four years from the date of notification of the commitment decision to Visa Europe.

19. These commitments only apply to Visa Europe. The current antitrust investigation (see above, point 7) will remain open towards Visa Inc. and Visa International Services Association pending further assessment by the Commission, possibly including any comments made in response to this notice.

4. INVITATION TO MAKE COMMENTS

20. Subject to market testing, the Commission intends to adopt a decision under Article 9(1) of Regulation (EC) No 1/2003 declaring the commitments summarised above and published on the Internet, on the website of the Directorate-General for Competition, to be binding.

21. In accordance with Article 27(4) of Regulation (EC) No 1/2003, the Commission invites interested third parties to submit their observations on the proposed commitments. These observations must reach the Commission not later than one month following the date of this publication. Interested third parties are also asked to submit a non-confidential version of their comments, in which any information they claim to be business secrets and other confidential information should be deleted and replaced as required by a non-confidential summary or by the words ‘business secrets’ or ‘confidential’.

22. Answers and comments should preferably be reasoned and should set out the relevant facts. If you identify a problem with any part of the proposed commitments, the Commission would also invite you to suggest a possible solution.

23. Observations can be sent to the Commission under reference number AT.39398 VISA MIF either by e-mail (COMP-GREFFE-ANTITRUST@ec.europa.eu), by fax (+32 22950128) or by post, to the following address: European Commission Directorate-General for Competition Antitrust Registry 1049 Bruxelles/Brussel BELGIQUE/BELGIË

(1) OJ L 1, 4.1.2003, p. 1. With effect from 1 December 2009, Articles 81 and 82 of the EC Treaty have become Articles 101 and, respectively, 102 of the TFEU. The two sets of provisions are in substance identical. For the purposes of this notice, references to Articles 101 and 102 of the TFEU should be understood as references to Articles 81 and 82 of the EC Treaty when applicable.

(2) Currently Latvia.

(3) Currently in Belgium, Hungary, Iceland, Ireland, Italy, Luxembourg, Malta, Netherlands and Sweden, in the absence of other interchange fees.

(4) In the commitments, these are referred to as international MIFs and intra-Visa Europe non-EEA MIFs.

(5) The Visa Europe territory includes the EEA, Andorra, Faeroe Islands, Greenland, Israel, Monaco, San Marino, Svalbard and Jan Mayen Islands, Switzerland, Turkey and Vatican City.