Final Report of the Hearing Officer (1)

Case AT.39398 — Visa MIF

(2019/C 299/05)

Introduction

(1) Case AT.39398 concerns multilateral interchange fees (‘MIFs’) applicable in respect of certain debit and credit card payments in the payment card system known under (variants of) the brand name ‘VISA’ ( 2 )

(2) The present report relates to a draft commitments decision under Article 9 of Council Regulation (EC) No 1/2003 ( 3 ) (the ‘Draft Decision’) in respect of a subset of the MIFs covered by Case AT.39398, known as ‘inter-regional MIFs’ ( 4 ) . The Draft Decision is addressed to Visa Inc. and Visa International Service Association (together, ‘Visa’).

(3) Inter-regional MIFs are described in the Draft Decision as MIFs ‘applicable to card-based inter-regional transactions concluded at merchants located in the [European Economic Area (“EEA”)] with consumer debit and credit cards issued by an issuer located outside the EEA’ ( 5 )

Earlier events in Case AT.39398 concerning Visa Europe Limited

(4) Case AT.39398 began with an investigation opened on 28 November 2006 at the Commission’s own initiative. On 6 March 2008, the Commission initiated proceedings for the purposes of Article 2(1) of Commission Regulation (EC) No 773/2004 ( 6 ) in respect of ‘alleged practices’‘engaged in by the Visa undertaking, in particular Visa Europe Limited’ (‘Visa Europe’), including ‘multilaterally-determined intra-regional interchange fees’ as applied to certain transactions ‘within the EEA’.

(5) On 3 April 2009, the Commission adopted a statement of objections (the ‘April 2009 SO’). The addressees of the April 2009 SO were Visa Europe and Visa. DG Competition transmitted the April 2009 SO to Visa Europe on 3 April 2009. Visa Europe subsequently identified certain sections of the April 2009 SO as confidential with respect to Visa.

(6) On 15 June 2009, EuroCommerce made a complaint alleging a violation by Visa Europe of Article 81 EC in connection with, among other things, Visa Europe’s ‘intra-regional’ MIFs applicable to commercial card and consumer card transactions.

(7) By decision of 8 December 2010, the Commission, pursuant to Article 9 of Regulation (EC) No 1/2003, made binding on Visa Europe certain commitments with regard to intra-regional and certain domestic ( 7 ) MIFs ( 8 ) . These commitments (the ‘2010 Commitments’) addressed certain of the objections in the Visa Europe SO. In July 2012, the Commission rejected EuroCommerce’s complaint to the extent that it concerned issues covered by the 2010 Commitments.

(8) On 30 July 2012, the Commission adopted a supplementary statement of objections, addressed to Visa Europe (the ‘Visa Europe SSO’).

(9) By decision of 26 February 2014, the Commission made binding on Visa Europe certain commitments concerning, in particular (i) transactions carried out with merchants located within the EEA with a VISA-branded consumer card issued in one of the non-EEA jurisdictions of the Visa Europe Territory; and (ii) certain additional rules on ‘cross-border acquiring’ (the ‘2014 Commitments’) ( 9 ) . In that decision, the Commission concluded that there were no longer grounds for acting against Visa Europe. Before this decision, EuroCommerce had withdrawn its complaint to the extent that it was covered by the 2014 Commitments.

(10) Visa Inc. acquired Visa Europe in June 2016.

Procedure concerning Visa

Statements of objections

(11) On 25 May 2009, the Commission sent to Visa a redacted version of the April 2009 SO. This redacted version (the ‘Redacted 2009 SO’) did not include certain sections of the April 2009 SO that Visa Europe had previously claimed were confidential with respect to Visa ( 10 )

(12) On 5 March 2013, the Commission adopted a redacted version of the Visa Europe SSO. This version did not contain certain information to the inclusion of which Visa Europe had objected in accordance with Article 8 of Decision 2011/695/EU. By decision of 22 January 2013, I had previously rejected these objections. When Visa Europe did not seek the annulment of that decision within the applicable limitation period, the Commission adopted, on 23 April 2013, a less-redacted version of the Visa Europe SSO. This less-redacted text (the ‘2013 SSO’) includes the information the disclosure of which was authorised by my decision of 22 January 2013.

(13) DG Competition sent the 2013 SSO to Visa on 24 April 2013. The 2013 SSO did not object to certain consumer debit card MIFs covered by the 2010 Commitments. Its scope went beyond that of the Redacted 2009 SO inasmuch as it added objections relating to Visa’s inter-regional MIFs.

(14) On 3 August 2017, the Commission adopted another supplementary statement of objections addressed to Visa (the ‘2017 SSO’). The purpose of the 2017 SSO was ‘to supplement, amend and clarify’ objections notified to Visa in the Redacted 2009 SO and in the 2013 SSO. In particular, the 2017 SSO added objections related to debit card inter-regional MIFs and took into account the 2016 acquisition of Visa Europe by Visa Inc.

Access to the file by Visa

(15) Following receipt of the Redacted 2009 SO, Visa consulted a list of accessible documents in the Commission’s investigation file. On 18 June 2009, Visa informed DG Competition of their decision not to seek access to that file.

(16) After the 2013 SSO, DG Competition provided Visa with documents on CD-ROMs on numerous occasions between May 2013 and June 2014 inclusive. After some correspondence and discussion, DG Competition and Visa agreed that the remainder of the accessible file would be made available to external advisers of Visa as part of a data room procedure in two phases. The first phase was intended to enable external lawyers of Visa to identify documents in relation to which they wished to request further access. It was subject to restrictive rules. The second phase was envisaged as being more in-depth than the first, with external legal and economic advisers having access to the documents selected in the first phase.

(17) The first phase of the data room procedure culminated in the release by DG Competition on 25 and 30 April 2014 of a data room report prepared by Visa’s external lawyers. On 7 and 22 May 2014, Visa requested that certain documents be released from the data room procedure.

(18) In relation to one category of these documents, materials pertaining to the ‘2010 Acquiring Survey’, Visa requested in the alternative that the entire dataset of that survey be available to its legal and economic advisers in a ‘Phase 2 Data Room’. On 3 July 2014, DG Competition rejected the request for further access to the 2010 Acquiring Survey documents outside a data room, without taking a clear position on Visa’s alternative request. Visa raised the matter with me on 15 July 2014. At my prompting, DG Competition essentially accepted this alternative request on 1 August 2014, allowing Visa access to the full albeit anonymised dataset of replies to the 2010 Acquiring Survey inside the Phase 2 Data Room. By letter dated 11 September 2014, Visa confirmed that this alternative solution resolved matters in relation to that category of documents. The relevant data room procedure commenced in 2015.

(19) In relation to another category — documents obtained by the Commission from Visa Europe — Visa proposed in July 2013 that DG Competition explore the possibility of a negotiated disclosure arrangement as an alternative to a data room procedure the rules of which would, in Visa’s view, be too restrictive. Negotiations between Visa and Visa Europe on the details of a ‘negotiated access procedure’ in respect of certain documents continued until April 2015.

(20) Neither Visa Europe nor Visa raised any matter with me concerning this negotiated disclosure exercise or any of the other categories of documents to which Visa sought further access. DG Competition continued to deal with access to the file.

(21) In a letter to Visa dated 8 February 2016, DG Competition indicated that it was planned to ‘issue a new document’ and that, once this was done, Visa would be ‘granted further access to the file up to the date of the new document’. Following the 2017 SSO, DG Competition gave Visa access to part of the Commission’s investigation file by means of a DVD. Starting on 2 October 2017, Visa had access by means of a data room procedure to certain materials. Since the acquisition by Visa of Visa Europe had by this stage been implemented, there was no need to continue the negotiated access arrangements agreed in 2015 in respect of documents of Visa Europe. I received no requests in relation to access to the file following the 2017 SSO.

Time limits for responding to the Redacted 2009 SO, the 2013 SSO and the 2017 SSO

(22) Visa replied to the Redacted 2009 SO on 30 July 2009, within the period granted by DG Competition for a written response. DG Competition initially granted Visa a period in which to respond to the 2013 SSO of, in substance, eight weeks following receipt of the accessible file on a CD-ROM. In July 2015, DG Competition informally indicated to Visa that Visa was not expected to respond in writing to the 2013 SSO in the near future. DG Competition’s letter to Visa dated 8 February 2016 indicated that Visa would not have to reply to the 2013 SSO. Visa responded in writing to the 2017 SSO on 20 November 2017, within the period granted by DG Competition for that purpose.

Interested third persons

(23) In 2009, MasterCard Incorporated, MasterCard International Incorporated and MasterCard Europe (jointly, ‘Mastercard’) as well as five other entities were admitted as interested third persons in Case AT.39398.

(24) By the time of Visa’s written response to the 2017 SSO, of these six interested third persons, only Mastercard had specifically signalled an interest in ongoing proceedings concerning Visa in Case AT.39398 following the 2010 Commitments and the 2014 Commitments ( 11 ) . At my prompting, DG Competition contacted the five other interested third persons in December 2017. Four of these confirmed in essence that their interest in Case AT.39398 continued in respect of the proceedings concerning Visa. Having failed to respond to repeated communications, the fifth, unlike those four, was not offered the opportunity of commenting, in accordance with Article 13 of Regulation (EC) No 773/2004, on an updated description of the nature and subject matter of the procedure in Case AT.39398 (in practice a non-confidential summary of the 2017 SSO). Two of those four interested third persons did not take up this opportunity.

(25) In January 2018, I received and accepted another application to be heard as an interested third person. The successful applicant provided written comments on a non-confidential summary of the 2017 SSO in February 2018.

(26) I invited Mastercard to participate in the oral hearing (see (27) below) but did not consider it appropriate, for the purposes of Article 6(2) of Decision 2011/695/EU, to invite any other interested third person.

Oral hearing

(27) Visa developed their arguments at an oral hearing held on over a day and a half on 27 and 28 February 2018. Mastercard and EuroCommerce (see paragraphs 30 and 31 below) also participated.

Commitments procedure

(28) On 26 November 2018, Visa submitted commitments (the ‘Commitments’) to the Commission in accordance with Article 9 of Regulation (EC) No 1/2003.

(29) Official Journal of the European Union pursuant to Article 27(4) of Regulation (EC) No 1/2003, summarising the present case and the Commitments and inviting observations on the Commitments within one month On 5 December 2018, the Commission published a notice in thepursuant to Article 27(4) of Regulation (EC) No 1/2003, summarising the present case and the Commitments and inviting observations on the Commitments within one month ( 12 ) . On 29 January 2019, the Commission informed Visa of third party observations received following that notice.

EuroCommerce as a complainant in respect of Visa

(30) On 12 September 2013, EuroCommerce wrote to DG Competition seeking to be acknowledged as a ‘formal complainant in the on-going investigation against [Visa]’. DG Competition replied by letter dated 19 December 2013, confirming that EuroCommerce would be treated as such.

(31) By letter dated 6 March 2019, EuroCommerce withdrew its complaint to the extent, in substance, that it is addressed by the Draft Decision.

Concluding remarks

(32) The Draft Decision states that in the light of the Commitments, ‘the Commission considers that there are no longer grounds for action on its part and, without prejudice to Article 9(2) of Regulation (EC) No 1/2003, the proceedings in this case should therefore be brought to an end’.

(33) Overall, I consider that the effective exercise of procedural rights has been respected.

Brussels, 11 April 2019. Wouter WILS

(1) Pursuant to Articles 16 and 17 of Decision 2011/695/EU of the President of the European Commission of 13 October 2011 on the function and terms of reference of the hearing officer in certain competition proceedings (OJ L 275, 20.10.2011, p. 29) (‘Decision 2011/695/EU’).

(2) In a ‘four-party’ payment system such as the system concerned here, the parties involved in each purchase made by payment card are, besides the owner/licensor of the system: (1) the cardholder; (2) the financial institution which issued that card (referred to as the ‘issuer’); (3) the ‘merchant’; and (4) the financial institution providing the merchant with services enabling it to accept the card as a means of settling the transaction concerned (referred to as the ‘acquirer’). MIFs are sums that, in respect of transactions settled by way of a card payment in such a system, are typically payable to the issuer by the acquirer in default of an alternative ‘interchange’ arrangement made bilaterally between issuer and acquirer in respect of the type of card and transaction concerned. MIFs are generally expressed in terms of a percentage of the face value of the associated card payment.

(3) 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 (OJ L 1, 4.1.2003, p. 1) (‘Regulation (EC) No 1/2003’).

(4) Other aspects of Case AT.39398 have been addressed by two Commission decisions adopted under Article 9 of Regulation (EC) No 1/2003 in 2010 and 2014 respectively. See paragraphs 7 and 9 below.

(5) See footnote 2 for a brief explanation of the terms ‘MIFs’, ‘merchants’ and ‘issuer’.

(6) Commission Regulation (EC) No 773/2004 of 7 April 2004 relating to the conduct of proceedings by the Commission pursuant to Articles 81 and 82 of the EC Treaty, OJ L 123, 27.4.2004, p. 18 (‘Regulation (EC) No 773/2004’).

(7) Domestic MIFs are default interchange fees applicable where issuer and acquirer are in the same country.

(8) A summary of this decision is published in OJ C 79, 12.3.2011, p. 8. See also Final Report of the Hearing Officer, dated 26 November 2010 (OJ C 79, 12.3.2011, p. 6).

(9) A summary of this decision is published in OJ C 147, 16.5.2014, p. 7. See also Final Report of the Hearing Officer, dated 19 February 2014 (OJ C 147, 16.5.2014, p. 5).

(10) See paragraph 5 above.

(11) On 13 August 2015, Mastercard requested to be recognised as an interested third person in proceedings in respect of Visa and Visa’s inter-regional MIFs, to the extent that is was not already so recognised. In an email of 14 August 2015, I indicated that, in any event, Mastercard had a sufficient interest within the meaning of Article 13 of Regulation (EC) No 773/2004 and Article 5 of Decision 2011/695/EU to be considered as an interested third person in proceedings concerning Visa in the context of Case AT.39398.

(12) Communication from the Commission published pursuant to Article 27(4) of Council Regulation (EC) No 1/2003 in Case AT.39398 — Visa MIF (OJ C 438, 5.12.2018, p. 8).