WRITTEN QUESTION E-2291/97 by Florus Wijsenbeek (ELDR) to the Commission (2 July 1997)

Subject: Non-discrimination rule in respect of credit card payments

Is the Commission aware that on 15 May 1997 the industrial appeals tribunal in the Netherlands stated (Official Gazette of 29 May 1997) that:

- the non-discrimination rule (NDR) which credit card companies include in their contracts with card-accepting forms must be deemed to be a sales price scheme;

- such schemes have been declared non-binding by the decision of the Minister of Economic Affairs on horizontal price-setting;

- the request by the plaintiffs for discharge has been rejected, with the result that the NDR must be deleted from contracts, with the result that in future shopkeepers will have to negotiate a surplus or discount on the sales price with customers who want to pay by credit card?

Does the Commission agree with the appeals tribunal's decision and, in particular, by the fact that the tribunal has been largely guided by the assumption that the Commission would probably deem the NDR to be an infringement of Article 85(1)= of the EC treaty and would see no grounds for granting as derogation pursuant to paragraph 3 of that Article?

If so, does the Commission intend to institute proceedings pursuant to Article 9(3) of Regulation No 17 ((OJ 13, 21.2.1962, p. 204. )) with regard to the NDR in order to avoid conflicting decisions by European and national authorities on the granting of a derogation?

If not, why not?

Can the Commission indicate when the advisory report on this question (NDR for credit and bank payments) is to be submitted which will contain proposals for not granting derogation in principle for the NDR pursuant to Article 85(3) of the EC treaty, in accordance with the Commission's undertaking in its letter of 9 August 1993 to the Minister of Economic Affairs of the Netherlands?

Answer given by Mr Van Miert on behalf of the Commission (23 July 1997)

The Commission is indeed aware of the judgement of 15 May 1997 of the Dutch administrative court (College van Beroep voor het Bedrijfsleven), which declared unfounded the appeal by certain credit and charge companies against the decision by the Dutch competition authority not to grant an exemption for the so-called no-discrimination rule (NDR).

The decision of the College van Beroep is based on Dutch competition law, in particular the Economic competition law (Wet economische mededinging) and the Decree on horizontal price agreements (Besluit horizontale prijsbinding). Naturally, it is not appropriate for the Commission to comment on the correctness of an opinion of the national court based on national competition law. A national court is not obliged to take into account opinions or expressions of the Commission. So far, the Commission has not taken a formal position on the NDR. However, the Commission is currently investigating under Community competition law several payment card systems which were notified to it pursuant to Article 4 of Council Regulation No 17 implementing Articles 85 and 86 of the Treaty of 6 Februay 1992 ((OJ 13, 21.2.1962. )). These payment systems concern among others those of Visa and Europay, which both contain, an NDR. In order to come to a well-considered decision the Commission has opened discussions with all parties concerned.