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

(2018/C 438/03)

1. Introduction

(1) According to Article 9 of the 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 August 2017, the Commission adopted a Supplementary Statement of Objections (‘SSO’) against Visa Inc. and Visa International Services Association. This SSO supplements further the Supplementary Statement of Objections of 23 of April 2013 and the Statement of Objections of 3 April 2009, addressed to Visa Inc., Visa International Service Association and Visa Europe Limited ( 2 ) (together ‘Visa’).

(3) The SSO outlined the Commission’s preliminary view that Visa Inc. and Visa International Services Association have infringed Article 101 of the TFEU and Article 53 of the EEA Agreement by setting rules on multilateral interchange fees (‘MIFs’) that apply to inter-regional transactions with consumer debit and credit cards issued by an issuer (cardholder’s bank) located outside the EEA at merchant outlets located in the EEA. These include ‘card present’ transactions (when the cardholder is present, for example in a shop) and ‘card not present’ transactions (when the cardholder is not present, for example when the card number and authentication details are transmitted via internet, mail or telephone).

(4) The SSO notes that Visa’s rules oblige the acquirer (merchant’s bank) to pay inter-regional MIFs to the issuer (cardholder’s bank) for each inter-regional transaction at a merchant outlet in the EEA, and also that Visa’s inter-regional MIFs amount to decisions of an association of undertakings within the meaning of Article 101(1) TFEU/Article 53(1) EEA.

(5) As outlined in the SSO, when a cardholder uses a payment card to buy goods or services from a merchant, the merchant pays a merchant service charge to its acquirer. The acquirer keeps part of this charge (the acquirer’s margin), a part is passed on to the issuer (the MIF) and a part is passed to the scheme operator (in this case Visa). The SSO further states that a large part of the merchant service charge is determined by the MIF. However, the Commission has in its past cases accepted MIFs which comply with a so called Merchant Indifference Test (‘MIT’) ( 3 ) . According to the test, the interchange fee should not on average exceed the transactional benefits that merchants derive from accepting payment cards. Such a MIF ensures that merchants, on average, are indifferent between accepting card payments and other means of payments, creating a level playing field for competition between alternative payment instruments.

3. The main content of the offered commitments

(6) Visa Inc. and Visa International Services Association, as the parties subject to the proceedings, do not agree with the Commission’s preliminary assessment. They have 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

(7) Six months following the date on which Visa receives formal notification of the Commission Decision according to Article 9 of Regulation (EC) No 1/2003, Visa commits to Cap: (a) its Inter-regional Debit MIF for Inter-regional Card Present (CP) Transactions at 0,2 %; and (b) its Inter-regional Credit MIF for Inter-regional Card Present (CP) Transactions, at 0,3 %; and (c) its Inter-regional Debit MIF for Inter-regional Card Not Present (CNP) Transactions at 1,15 %; and (d) its Inter-regional Credit MIF for Inter-regional Card Not Present (CNP) Transactions at 1,5 %.

(8) These Commitments will remain in force for a period of five years and six months after notification of the commitment decision to Visa.

(9) At the latest within 12 working days after notification of the commitments decision, Visa will notify each acquirer of Visa inter-regional transactions and will request that each acquirer, in turn, notify promptly their respective merchant customers that: (i) the Commitments have been adopted; and that (ii) the Inter-regional MIFs will be capped for all future consumer debit and credit card inter-regional transactions for the duration of the Commitments. Also at the latest within 12 working days after notification of the commitments decision, Visa shall also publish in a clearly visible and easily accessible manner on the Visa Europe website all Inter-regional Debit and Credit MIFs applicable to Inter-regional CP and CNP transactions.

(10) Visa shall not circumvent or attempt to circumvent these Commitments either directly or indirectly by any act or omission. In particular, as of the notification of the commitment decision, Visa will refrain from all practices which have the equivalent object or effect of inter-regional MIFs. This includes specifically but not exclusively implementing programs or new rules whereby Visa transfers scheme or other fees charged to acquirers within the EEA to non-EEA issuers.

(11) Subject to its commitment of non-circumvention, Visa may adopt appropriate consumer protection measures to ensure that consumers will not be adversely affected by the effects of changes to its inter-regional MIFs in particular concerning matters such as fraud, currency conversion, refunds and charge backs.

(12) Visa shall appoint a Monitoring Trustee to monitor Visa’s compliance with the Commitments. Before appointment, the Commission shall have the power to approve or reject the proposed Trustee.

(13) The current antitrust investigation (supra section 2) will remain open towards Visa pending further assessment by the Commission, possibly including any comments made in response to this Notice.

4. Invitation to make Comments

(14) 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.

(15) 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’.

(16) 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.

(17) Observations can be sent to the Commission under reference number AT.39398 — Visa MIF either by email (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) On 3 June 2016, the merger between Visa Inc. and Visa Europe was completed and Visa Inc. acquired Visa Europe. As a consequence, Visa Europe ceased to be a separate undertaking. Therefore, any reference to Visa Europe throughout the text shall be read as referring to the period prior to 3 June 2016.

(3) For information on the Merchant Indifference Test see the executive summary of the Commission’s 2015 Survey on the Cost of Cash and Card Processing, p. 3, available at http://ec.europa.eu/competition/sectors/financial_services/dgcomp_final_report_en.pdf