WRITTEN QUESTION No. 2291/97 by Florus WIJSENBEEK to the Commission. Non-discrimination rule in respect of credit card payments
Date: 1997-07-02
Institutions: European Parliament, WIJSENBEEK
Subjects: Netherlands, competition law, electronic money, equal treatment, free price, imposed price, national law, selling price

25. 2. 98

EN

Official Journal of the European Communities

C 60/119

(98/C 60/201)

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(cid:146)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 (1) 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(cid:146)s undertaking in its letter of 9 August 1993 to
the Minister of Economic Affairs of the Netherlands?

(1)  OJ 13, 21.2.1962, p. 204.

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 (1). 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.

(1)  OJ 13, 21.2.1962.