1999/687/EC: Commission Decision of 8 September 1999 relating to a proceeding under Article 81 of the EC Treaty (IV/34.010 - Nederlandse Vereniging van Banken (1991 GSA agreement), IV/33.793 - Nederlandse Postorderbond, IV/34.234 - Verenigde Nederlandse Uitgeversbedrijven and IV/34.888 - Nederlandse Organisatie van Tijdschriften Uitgevers/Nederlandse Christelijke Radio Vereniging) (notified under document number C(1999) 2056) (Only the Dutch text is authentic)
Date: 1999-09-08
Institutions: European Commission
Subjects: Netherlands, application of EU law, credit transfer, payment, type of business

L 271/28

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COMMISSION DECISION

of 8 September 1999

relating to a proceeding under Article 81 of the EC Treaty

(IV/34.010 — Nederlandse Vereniging van Banken (1991 GSA agreement), IV/33.793 — Neder-
landse Postorderbond, IV/34.234 — Verenigde Nederlandse Uitgeversbedrijven and IV/34.888 —
Nederlandse Organisatie van Tijdschriften Uitgevers/Nederlandse Christelijke Radio Vereniging)

(notified under document number C(1999) 2056)

(Only the Dutch text is authentic)

(1999/687/EC)

THE COMMISSION OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European
Community,

Having regard to Council Regulation No 17 of 6 February
1962, the First Regulation implementing Articles 85 and 86 of
the Treaty (1), as last amended by Regulation (EC) No 1216/
1999 (2), and in particular Article 2 thereof,

Having regard to the application for negative clearance and the
notification with a view to an exemption submitted on 10 July
1991 under Articles 2 and 4 of Regulation No 17,

Having regard to the complaints lodged on 21 January 1991,
7 June 1991, 13 September 1991, 10 February 1992 and 31
October 1993 under Article 3 of Regulation No 17,

Having regard to the Commission Decision of 11 June 1993 to
initiate proceedings in this case,

Having given interested parties the opportunity of being heard
on the matters to which the Commission has taken objection
in accordance with Article 19(1) of Regulation No 17 in
conjunction with Commission Regulation No 99/63/EEC of 25
July 1963 on the hearings provided for in Article 19(1) and (2)
of Council Regulation No 17 (3),

Having invited interested third parties (4) to submit their obser-
vations in accordance with Article 19(3) of Regulation No 17
with regard to the Commission's intention to adopt a positive
standpoint on the notified agreement,

Having consulted the Advisory Committee on Restrictive Prac-
tices and Dominant Positions,

Whereas:

I. THE FACTS

The notification

(1)

On 10 July 1991 the Nederlandse Vereniging van
Banken (Dutch Association of Banks, ‘the NVB’) notified,
on behalf of its members, an agreement concerning the
introduction of a joint payment and acceptance giro
procedure (‘the GSA agreement’ or ‘the 1991 GSA agree-
for negative clearance or for
ment’) with a request

(2)

(3)

exemption under Article 81(3) of the EC Treaty (5). The
acceptance giro is a payment instrument that is widely
used by payees for regular payments by their customers,
insurance
for example energy and telephone bills,
premiums and subscriptions.

The notification in fact relates to an amended version of
an earlier GSA agreement, the 1985 GSA agreement.
The amendment concerns in particular the introduction
of an interbank commission payable for the processing
of acceptance giro forms and amounting to NLG 0,30
(EUR 0,14) per processed form. Under the 1991 GSA
agreement the interbank commission is to be paid by
the collecting party's bank (the payee bank)
to the
purchaser's bank (the drawee bank). The commission is
intended to cover part of the cost to the drawee bank of
processing acceptance giro forms.

The complaints

Between 1991 and 1993 the Commission received
several complaints from major users of the acceptance
giro system, namely from the Dutch mail order associ-
ation (the Nederlandse Postorderbond) (6), an organ-
isation which promotes the interests of road users
(ANWB), an umbrella organisation of mainly national
(the Centraal Bureau Fondsenwerving), an
charities
enterprise
and
specialist journals (the Verenigde Nederlandse Uitgevers-
bedrijven (VNU)) (7), an organisation which promotes
the interests of magazine publishers (the Nederlandse
Organisatie van Tijdschriften Uitgevers (NOTU)) and a
broadcasting organisation (the Nederlandse Christelijke
Radio Vereniging (NCRV)) (8).

involved in publishing periodicals

(5) The NVB notified the 1991 GSA agreement on behalf of

it

is not a party to the agreement.

to acknowledge

that

it had been apprised of

its
It signed the
the

members, but
agreement
contents.

(1) OJ 13, 21.2.1962, p. 204/62.
(2) OJ L 148, 15.6.1999, p. 5.
(3) OJ 127, 20.8.1963, p. 2268/63.
(4) OJ C 273, 9.9.1997, p. 12.

(6) Complaint of 21 January 1991 (Case IV/33.793).
(7) Complaints of 7 June 1991, 13 September 1991 and 10 February

1992 (Case IV/34.234).

(8) Joint complaint of 21 October 1993 (Case IV/34.888).

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Official Journal of the European Communities

L 271/29

(4)

(5)

(6)

The complaints are directed in particular against the
restrictive effects of the interbank commission in the
GSA agreement, which is
fixed multilaterally and,
according to the complainants, should be regarded as a
price-fixing agreement between the banks within the
meaning of Article 81(1). Some complainants consider
that what they regard as the systematic passing-on of the
interbank commission by payee banks
to business
customers using the acceptance giro system constitutes a
concerted practice within the meaning of that Article.
Some complainants also allege that the major banks
have abused an individual or joint dominant position in
breach of Article 82 of the Treaty by imposing unfair
charges on business customers using acceptance giros.

The parties to the notified agreement

and

The GSA agreement was signed by ABN AMRO Bank
NV, Coöperatieve Centrale Raiffeisen-Boerenleenbank
BA, ING Bank NV (formerly NMB Postbank Groep NV),
Postbank NV (which since 1992 has formed part of ING
Bank but operates under its own name), Nederlandse
Spaarbankbond
Interpay/BankGiroCentrale
(formerly BankGiroCentrale). In addition, a large number
of banks (58 by the end of 1997) have signed an acces-
sion declaration in which they state that they accept all
the rights and obligations stemming from the GSA
agreement vis-à-vis the signatories of that agreement and
the other banks that have signed an accession declara-
tion. The names of all the banks which have signed the
GSA agreement are given in Annex I.

(8)

(9)

(10)

ABN AMRO Bank NV (‘ABN AMRO’) is a wholly owned
subsidiary of ABN AMRO Holding NV, which was set
up following a merger of Algemene Bank Nederland NV
and Amsterdam-Rotterdam Bank NV
(ABN Bank)
(AMRO Bank). In 1998 the number of account holders
was
including about
270 000 business account holders. ABN AMRO's total
assets amounted to NLG 836,4 billion (EUR 380,2
billion) in 1997. This means that ABN AMRO is the
largest bank in the Netherlands
total
assets (9).

approximately 3,85 million,

in terms of

individuals may also join. The number of account
holders with Rabobank in 1998 was some 6,1 million,
including 600 000 business account holders. At the end
of 1998 total assets amounted to NLG 423 billion
(EUR 192,3 billion). Rabobank is the second largest
bank in the Netherlands in terms of total assets (10).

ING Bank was created on 1 January 1992 following a
merger between insurance company Nationale Neder-
landen NV and the NMB-Postbank Groep. The latter was
itself set up as the result of a merger three years previ-
ously between Nederlandsche Middenstandsbank NV
(NMB) and the former state enterprise Postbank. In 1998
ING Bank had about 1,2 million private account holders
and some 205 000 business account holders. Postbank,
which forms part of the ING Bank but operates under its
own name and has its own giro circuit, had 7,1 million
private account holders and 560 000 business account
holders in 1998. ING Bank's consolidated total assets
(including BBL) amounted to approximately NLG 630
billion (EUR 286,5 billion) in 1998 (11).

The Nederlandse Spaarbankbond is an association of
savings banks. The five affiliated savings banks, namely
Fortis Bank, SNS Bank Nederland, Samenwerkende
Groninger Bondsspaarbanken, Stichting Nutsspaarbank
and Stichting Bondsspaarbank are autonomous. The
Nederlandse Spaarbankbond signed the 1991 GSA
agreement on behalf of its affiliated banks. The number
of account holders is about 2,5 million in total. The
the affiliated savings banks
combined total assets of
amounted to some NLG 115 billion (EUR 52,3 billion)
in 1998 (12).

of

the

processing

centralised

Interpay Nederland (Interpay) is a facility for payment
transfers between the banks and the giro establishments,
including
transfer
payments. Interpay is a joint undertaking operated by
the general banks, Rabobank and the
virtually all
members of the Nederlandse Spaarbankbond. It was set
up on 1 January 1994 following a merger between Bank
Giro Centrale (BGC) (the original GSA agreement sig-
natory, responsible for the processing of giro transac-
tions), BeaNet (processing of transactions via automatic
teller machines) and Eurocard Nederland (processing of
credit card transactions). Interpay manages the payment
circuit of the banks, with the exception of Postbank NV
which, as mentioned above, has its own giro circuit.
However, as part of moves to set up a national payment
circuit, the connection between the Interpay circuit and
the Postbank circuit has been significantly upgraded. In
1998 almost 2 billion giro transactions were performed
amount of
via
NLG 2 728 billion (EUR 1 240 billion). The number of
acceptance giros processed in 1998 was 217 million,
with a value of NLG 84,9 billion (EUR 38,6 billion).
About 70 banks participate in Interpay (13).

Interpay BGC involving

total

a

(7)

Coöperatieve Centrale Raiffeisen-Boerenleenbank BA
(‘Rabobank’) is a cooperative in the capital of which 445
banks have stakes. Each of those banks has the legal
status of a cooperative. The bank's business borrowers
are automatically members of the association. Private

(9) Letter from the NVB dated 25 March 1997 (file 34.010, p. 711)

(13) Letter from the NVB's lawyer dated 27 March 1997 and letter

and letter from ABN AMRO dated 11 February 1999.

from Interpay dated 18 February 1999.

(10) Letter from Rabobank dated 17 February 1999.
(11) Letter from ING dated 17 February 1999.
(12) Letter
1999.

from the Nederlandse Spaarbankbond dated 18 February

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(11)

The NVB was set up on 8 May 1989 with the object of
promoting the interests, both national and international,
of credit institutions operating in the Netherlands and of
Dutch banking in general. Virtually all banks operating
in the Netherlands, including establishments of foreign
banks, are members of the NVB. The NVB notified the
GSA agreement on behalf of its members but is not a
party to it.

(12)

(13)

The acceptance giro system

General

The notification and complaints concern the Dutch
acceptance giro system. This system is intended for
i.e. payments between
domestic business payments,
drawees and (business) payees with accounts in the
Netherlands, carried out on a regular, mandatory basis in
situations involving companies with a relatively large
and established customer base and in which the payer
and the payee do not come into direct contact with each
other. Examples
subscriptions,
energy and telephone bills, instalment payments, insur-
ance premiums, etc. Acceptance giros are thus not used
by the retail trade and hotels and restaurants, where
drawees and payees are in direct contact with each
other.

include payment of

Operation of the acceptance giro system

The acceptance giro system, which was launched on the
market at the end of the 1970s as a joint payment
product of Postbank and the other banks, works as
follows (see plan in Annex II). A firm which decides to
make use of the acceptance giro system (the payee or
creditor) concludes a contract with its bank (the payee
bank). The contract specifies the conditions under which
the firm can make use of the acceptance giro system.
When the product or service is supplied, or immediately
thereafter, the firm sends the customer (the drawee) an
acceptance giro form. The acceptance giro forms, which
the payee can order in standard form from the bank or
direct from the printers, are, as far as possible, precoded
by the firm. Most precoded forms show the account
number of
the
customer, the amount payable and the payment details.

the account number of

the firm,

(14)

(15)

(16)

(17)

This information is also indicated on the acceptance giro
form in numerical codes. The customer has only to add
his signature and to send the signed form to his own
bank.

The customer's bank (the drawee bank) converts the
codes into electronic data by means of special optical
readers and debits the customer's account. Automation
of processing increases in proportion to the amount of
additional
information that is entered in coded form.
Unencoded data has to be manually processed into elec-
tronic form (14).

The drawee bank then passes
the electronic data
required for crediting the firm's account on to the
appropriate giro clearing institute, i.e. the giro clearing
office of Postbank or Interpay (for the remaining banks).
No distinction is made between intra-bank transactions
(i.e. in which the payee and drawee have the same bank)
and inter-bank transactions. The banks maintain that
this prevents fragmentation of information. The central
giro offices sort all
the acceptance giro transactions
received by payee account and send the information, if
necessary via the corresponding giro circuit, to the relev-
ant payee banks.

Advantages of the acceptance giro system

The advantage of the acceptance giro system over other
payment instruments, such as ordinary transfers and
cheques, is that forms can be processed and transfers
effected on a largely automated basis. This means that
processing costs less and is effected more quickly. The
acceptance giro system also has significant adminis-
trative advantages for payees who operate with an auto-
mated accounting system. They can have data relating to
the processed acceptance giro forms supplied by the
bank by electronic medium (tape or diskette) and keep
their own financial records on an automated basis. This
allows substantial savings, since payments no longer
have to be entered separately in the firm's own financial
records. In addition, payees receive their money more
quickly.

Development of the acceptance giro system

The acceptance giro is widely used as a payment
medium in the Netherlands. In 1998, about 217 million
acceptance giro transactions involving a total amount of
approximately NLG 84,9 billion (EUR 38,9 billion)
were processed by Interpay BGC (15).
In 1998, Post-
bank's giro clearing office processed [...] (*) acceptance
giros involving a total amount of [...] * (16). In the period
1985 to 1998, the number of firms that had concluded
a contract for the use of acceptance giro forms rose
from 54 140 to 97 676 (17).

(14) Several banks are currently perfecting more advanced image tech-
nology to replace optical reading systems. Since the beginning of
1996 payees wishing to receive an acceptance giro document back
after processing (users of acceptance giros with many attachments)
have been sent
image prints of acceptance giros converted into
electronic data (Interpay 1996 annual report).
(15) Letter from Interpay dated 18 February 1999.
(*) Parts of this text have been edited to ensure that confidential

in-
formation is not disclosed; those parts are enclosed in square brak-
kets and marked with an asterisk.

(16) Letter from ING Bank dated 17 February 1999.
(17) See footnote 8, the letter from Interpay dated 18 February 1999

and the letter from ING Bank dated 17 February 1999.

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(18)

The three largest banks participating in the acceptance
giro system are Postbank, ABN AMRO and Rabobank.
In 1998, according to their own figures, these three
banks accounted for about 91 % of acceptance giro
contracts, 86 % of debit transactions, 70 % of credit
transactions, 87 % of the value of debit transactions and
50 % of the value of credit transactions (18).

The introduction of interbank commission

the banks,

(19) According to the NVB, which, as stated above, notified
the
the GSA agreement on behalf of
upgrading of connections between the two giro payment
circuits in the Netherlands, namely the Interpay circuit
(originally the Bank Giro Centrale) and the Postbank
circuit, as part of moves to set up a national payment
circuit, led to increased use of acceptance giros (and thus
also to an increase
in the absolute amounts of
processing costs) (19). The NVB argued that, in order to
ensure the optimal functioning of a single circuit, the
drawee bank should conduct certain services on the
payee bank's behalf,
the conversion of written
payment orders into electronic transactions. According
to the NVB, the GSA agreement (and in particular the
uniform interbank commission which it provides for) is
an acknowledgement that the payee bank benefits from
services effected by the drawee bank and should make a
proportional contribution to the costs incurred as a
result of those services (20).

i.e.

The agreement originally notified

(20)

The GSA agreement, which entered into force on 1 July
1991 for an indefinite period,
is in fact an amended
version of the 1985 GSA agreement, which was not
notified to the Commission as such. The amendment
relates in particular to the introduction of a uniform
commission payable by the payee bank for
the
processing, by the drawee bank, of acceptance giro
forms and amounting to NLG 0,30 (EUR 0,14) per
processed form (‘the interbank commission’). It is also
stipulated that the participating banks are completely
free to charge banks other than the payee bank for
processing acceptance giro forms.

(18) See footnote 8.
(19) The process of bringing the banks' payment circuits via Interpay
and the Postbank circuit closer together culminated in 1997 in the
setting-up of
(Nationaal Betalings
Circuit) (NVB 1998 annual report).

the national payment circuit

(20) Clarifications to the notification of 10 July 1991 and supplement-

ary clarifications of 17 September 1991.

(21)

(22)

(23)

The level of the interbank commission was established
in 1991 on the basis of the actual costs of electronic
conversion of the payment information by the bank
which, according to the NVB, had the most efficient
processing methods. Since the banks assume that the
advantages of processing by the drawee bank are of
equal benefit to the payee and to the drawee bank, the
interbank commission is set at half of the drawee bank's
processing costs.

The GSA agreement also stipulates that participants
must use certain forms and specifications in the tech-
nical exchange which takes place. A number of subjects
are also indicated for which further rules must be
adopted. These specifications and rules do not form part
of the notification and are therefore not included in
these proceedings.

The version originally notified stipulated that particip-
ants should refrain from conferring particular advan-
tages on payees in connection with credit payments to a
specific account. The participants were originally prohib-
ited from introducing their own acceptance giro pro-
cedure during the term of the agreement.

(24)

In contrast to the 1985 GSA agreement, the notified
GSA agreement was signed by individual banks rather
than by the NVB. A secretariat, the BGC, ensures that
the agreement is complied with.

Amendments to the originally notified agreement
following discussions with the Commission

(25) At the beginning of 1992, during discussions with the
banks involved in the GSA agreement, the Commission
department concerned stated that it objected to three
aspects of the agreement which restricted competition
and which would at all events prevent the granting of
exemption. First, there was the ban on granting payees
particular advantages in connection with the holding of
a particular credit account (Article 4); secondly, there
was the ban on participants introducing their own
acceptance giro procedures (Article 14); and thirdly,
there was the uniform interbank commission (Article 5).

(26) According to the banks, the first two provisions were
included in the earlier GSA agreement in order to ensure
that the two giro circuits, i.e. the Postbank circuit on the
one hand and the BGC on the other, were linked as far
as the acceptance giro integrated payment system was
concerned. Both of these provisions were deemed by the
parties to be no longer essential and were subsequently
scrapped with effect from 26 March 1992.

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(27)

The third provision (fixed interbank commission) was
also amended with effect from 26 March 1992. Indi-
vidual banks were in future to be allowed to agree
bilaterally a lower amount than NLG 0,30 (EUR 0,14)
as reimbursement
for processing an acceptance giro
form. The fixed interbank commission was thus made a
maximum. It was stressed that both drawee and payee
banks were free to charge other parties concerned costs
for processing acceptance giro forms. Article 5 as
amended reads as follows:

‘By way of reimbursement of the costs incurred by
the drawee institution in the processing, also on
behalf of the payee institution, of acceptance giro
forms within the framework of the GSA, an amount
of NLG 0,30 shall be charged by the drawee institu-
tion per processed acceptance giro form to the payee
institution, unless a lower amount is agreed bilat-
erally by individual banks.

This amount has been established on the basis of the
costs associated with the most efficient means of
processing acceptance giro forms and shall be
adjusted in the event of these costs being shown to
have changed. A decision on that subject can be
taken on a proposal from each of the institutions
participating in the GSA; this proposal should be
the
accompanied by documentary evidence of
change in the aforementioned costs.

The reimbursement of costs pursuant to this Article
shall leave the individual institutions participating in
the GSA (drawee and payee institutions) free in the
policy they pursue with respect to the charging to
others of costs associated with the processing of
acceptance giro forms under the GSA.’

Procedure

Rejection of the request for interim measures

(28)

the complainants,

In its decision of 7 February 1992, the Commission
rejected a request by one of
the
Nederlandse Postorderbond, for interim measures. The
Commission held that the view that merely applying the
GSA agreement caused serious prejudice to the members
of the Nederlandse Postorderbond was incorrect, since
the passing on of the interbank commission was left to
the relevant banks to decide individually. The Commis-
it was not
sion also took the prima facie view that
plausible that the Dutch banks had agreed, or had come
to a concerted practice amongst themselves, to pass on
the interbank commissions in all cases to the payees.
The Commission also held that there was no question of
serious and irreparable damage being done, since the

members of the Nederlandse Postorderbond could pass
on the charges made by the banks in whole or in part to
their customers or,
through proceedings before a
national court, could claim them back if it was estab-
lished that they were unlawful. No appeal was lodged
against this decision.

Statement of objections of 14 June 1993

(29) On 14 June 1993 the Commission sent the NVB a
statement of objections in which it argued that
the
multilaterally fixed interbank commission in the GSA
agreement constituted an infringement of Article 81(1)
of the Treaty and that the conditions for exemption
under Article 81(3) were not satisfied. The Commission
withdrew this statement of objections on 20 June 1997.

(30)

(31)

Observations by interested third parties

to Article 19(3) of Regulation No 17,

In a notice, which was published on 9 September 1997,
pursuant
the
Commission stated that it intended to take a favourable
view of
the agreement notified. The Commission
referred in particular in this context to the decision of
the banks formally to inform business users of
the
default nature and the amount of the interbank fee as
well as any changes to it. Moreover, the Commission
referred to the decision of the banks, at the Commis-
sion's request, to review the amount of the interbank fee
periodically in light of a report by an independent expert
as to the cost price using the most efficient processing
method.

Following this published notice the Commission has
received (joint) observations from the Nederlandse Post-
orderbond, the ANWB, the Centraal Bureau Fondsen
Werving, the Verenigde Nederlandse Uitgeversbedrijven,
the Nederlandse Organisatie van Tijdschriften Uitgevers
and the Nederlandse Christelijke Radio Vereniging (all
complainants in this case, see recital 3, and henceforth
referred to as ‘the complainants’) (21). These observations
were endorsed by the OverlegOrgaan Nutsvoorzieningen
and the Gebruikersplatform Betalingsverkeer.

The complainants' observations can be summarised as
follows. First, they take the view that, in principle, the
interbank commission in the GSA agreement is incon-
sistent with Directive 97/5/EC of the European Parlia-
ment and of the Council of 27 January 1997 on cross-
border credit transfers (22), which assumes that the origi-
nator bears the costs associated with a transfer unless he
has agreed otherwise with his bank. The complainants
also take the view that there were no legitimate grounds
for introducing the interbank commission, and that, in
particular, the merger of the two payment circuits oper-
ating in the Netherlands did not constitute legitimate
grounds for doing so. They also deny that the payee
bank benefits from services carried out by the drawee
bank.
the costs associated with the
processing of the payment order up to the point where
payment can be made should properly be borne by the
drawee bank. The complainants argue that an inverse
cost incentive is created because the costs that should be
borne by the originator are transferred to the payee.

In their view,

(21) Letter of 14 October 1997 (file 33.793, p. 794).
(22) OJ L 43, 14.2.1997, p. 25.

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II. LEGAL ASSESSMENT

Relevant market

Relevant product market

(32)

(33)

The acceptance giro system is subject to competition
from other payment systems only to a very limited
extent. Since the acceptance giro is designed for situ-
ations in which the creditor and drawee are not in direct
contact with each other (‘distance payments’), over-the-
counter payments, such as notes and coins and payment
cards such as the ‘PINpas’ national debit card and the
‘chipknip’ and ‘chipper’ national electronic purses do not
provide a real alternative to the acceptance giro system.
Payment instruments which in principle are suitable for
distance payments are: transfer payments (simple bank
credit transfer orders); cheques; electronic banking; and
direct debit. However, with the exception up to a point
of direct debit, none of those payment instruments can
be regarded as a real alternative to the acceptance giro
for the following reasons.

Transfers and cheques, in which paper orders are used,
do not provide a real alternative because the associated
processing costs are relatively high. It is relatively costly
to convert written information into electronic data for
the purposes of processing the transaction by computer.
In addition, compared with acceptance giros, these two
instruments entail significant administrative
payment
disadvantages for payees. Electronic banking is not a real
the number of private
option either, given that
customers with the necessary equipment
(PC with
modem) is still relatively small.

(34) Only the direct debit system provides any sort of viable
alternative to the acceptance giro system. Like the ac-
ceptance giro, the direct debit system is ideally suited to
payments that have to be made on a regular basis.
Under this system, the customer authorises the payee to
debit his account direct, without a prior order,
for
certain payments. If necessary, the customer can sub-
sequently cancel such debit payments.

(35) However, there are differences between the acceptance
giro and the direct debit system. In general, retail banks
offer both acceptance giros and direct debit. From the
banks' viewpoint, however, it is considerably cheaper to
process direct debit orders than acceptance giro transfers
because the relevant payment data have been supplied

(36)

(37)

(38)

electronically by the payees and therefore do not have to
be converted into electronic form. Direct debit trans-
actions are effected on a fully electronic basis and no
forms are involved. This explains why banks can offer
direct debit more cheaply to payees than acceptance
giros.

Each of the two payment instruments has other charac-
teristics which may lead drawees to prefer to pay by
acceptance giro or by direct debit. The following consid-
erations may play a part in this. First, with the accept-
ance giro system, the customer must sign an acceptance
giro form and send it to his bank prior to each payment.
The customer may also opt to go in person with the
acceptance giro form to his bank and pay the amount
owed, subject to extra costs, in cash (for example, if the
current account balance is insufficient). The customer
thus retains more control over the time and manner of
payment
in which
than in the case of direct debit,
control is exercised purely a posteriori. Some customers
will for that reason prefer the acceptance giro system to
direct debit. An advantage of direct debiting for
customers (and payees) is that payment is always made
on time, thus avoiding penalties for late payment, and
the customers do not have to take any action them-
selves.

The drawee's choice of payment
system may also
depend on the relationship between the customer and
the company in question. In practice, customers tend to
be willing to use the direct debit system where they have
a longstanding relationship with the company and have
a high degree of confidence in it, as in the case of the
utilities. In other cases in which the relationship is more
short term, as with magazine subscriptions, direct debit
is far less widely used. In some situations, as in the case
of monthly mortgage payments
and payment of
premiums to certain insurance companies, the customer
does not have the choice and direct debit is mandatory.

In view of the different characteristics referred to above,
direct debit cannot be regarded as a substitute for
acceptance giros. However, in addition to these different
characteristics, price is also a factor that needs to be
taken into account (23). Differences in the charges made
by the banks and/or payees to their customers (drawees)
for the use of the two payment systems may also be a
factor influencing the customer's choice between the
acceptance giro system and the direct debit system.
Shortly after the GSA agreement entered into force in
July 1991,
their
customers (payees)
for using acceptance giros. Some
payees, such as many mail order companies and news-
paper and magazine publishers, pass on the charges in
full or in part by differentiating their prices according to
whether their customers use acceptance giros or direct
debit. One way of doing this is to offer a reduction to
customers paying by direct debit. If it is cheaper for
by
them to

the banks proceeded to charge

direct

debit

than

pay

by

(23) Commission notice on the definition of the relevant market for the
purposes of Community competition law (OJ C 372, 9.12.1997,
p. 5).

L 271/34

EN

Official Journal of the European Communities

21. 10. 1999

acceptance giro, it may be assumed that a number of
customers (drawees) will overcome their objections to
the direct debit system. However, no statistics are avail-
able to illustrate this, partly because not all payees levy
identifiable charges for the use of acceptance giros and
these charges are
because, even where they do so,
mostly modest.

Article 81(1)

Agreement between undertakings

(39) However, it is known that the use of acceptance giros
has gradually tailed off since 1992. The number of
acceptance giro orders (including fund-raising accept-
ance orders) processed by Interpay/BGC in 1991 was
approximately 237 million (with a total value of
NLG 101 billion), whereas by 1998 it was about 217
million (a decline of approximately 7,6 % in four years).
Over the same period the use of direct debit increased
substantially. In 1991 the number of direct debit orders
was approximately 227 million (with a total value of
about NLG 224 billion) in 1991: by 1998 it was in the
region of 534 million (an increase of approximately
135 %) (24). The increased use of direct debit can be
attributed to information campaigns conducted by banks
and payees with the slogan Betaal op maat (made-to-
measure payments) designed to promote the use of
cheaper payment instruments. According to Interpay,
the increase in the use of direct debit has taken place at
the expense of acceptance giros, particularly in the case
of private drawees, and at the expense of manual trans-
fers (25).

(40)

In conclusion, notwithstanding the different character-
istics of the acceptance giro and direct debit systems, it
can be accepted that, in the event of the cost of accep-
tance giros increasing in relation to that of direct debit, a
certain proportion of drawees will change to direct
debit. The gradual decline in the number of acceptance
giro transactions since 1992, shortly after acceptance
giro charges were first introduced for payees (with the
consequent possibility of those charges being passed on
to drawees) would tend to confirm this scenario. Also
relevant is the fact that the Betaal op maat promotional
campaign conducted by banks and payees, apparently
with a degree of success,
led to a downturn in the
number of acceptance giros and an increase in direct
debit. Accordingly, direct debit should be regarded as a
limited substitute for acceptance giros. Acceptance giros
and direct debit can therefore be regarded as forming the
relevant product market.

Relevant geographic market

(41) Given that the acceptance giro is a domestic payment
system, i.e. designed for payments between drawees and
payees with an account with a Netherlands-based bank
which participates in the acceptance giro system, the
relevant geographic market is the Netherlands market.

(42)

The banks which have signed the GSA agreement or an
accession declaration are undertakings within the
meaning of Article 81(1). Accordingly, the GSA agree-
ment is an agreement between undertakings within the
meaning of Article 81(1).

Restriction of competition

Relationships within the four party agreement

(43) As in most payment systems, there are in principle four
the
parties involved in the acceptance giro system:
drawee (the originator),
the creditor (the beneficiary/
payee), the drawee bank and the payee bank (26). Each
party is in direct contact with two other parties. For
example, the payee bank has a direct relationship with
the drawee bank, which is laid down in the GSA agree-
ment, and, a direct relationship with the payee, which is
laid down in the acceptance giro contract. The various
relationships within the four-party payment
system
should be considered on an overall basis. Price agree-
ments in one of these relationships can have a knock-on
effect on the other
and thus have
consequences for the use of the payment system itself.

relationships

(44)

(45)

The notified agreement on the charging of processing
costs for acceptance giros directly concerns the relation-
ship between the payee and drawee banks (the interbank
relationship). However, the interbank price agreement
can also have repercussions on the relationship between
the payee bank and the payee, and on that between the
payee and the drawee, and hence on the operation of the
acceptance giro system itself. The payee bank may
decide to pass on the costs of the interbank commission
by increasing the commission it charges to the payee. In
turn, the payee may decide to pass on these extra costs
to the customer who uses the acceptance giro. In that
case customers may decide to switch to another
payment system offered by their bank or by one of its
competitors.

This potential chain of actions and reactions is a charac-
teristic of payment systems such as the acceptance giro
system which should be taken into account when invest-
igating the existence of restrictions on competition: a
price restriction in one of the four relationships in a
payment
interbank
commission, cannot be adequately assessed merely by
It is also
examining the effects on that relationship.
necessary to examine the effects on all the relationships
and on the payment system as a whole.

such as a multilateral

system,

(24) BGC 1993 annual report, Interpay 1996 annual report, letter from

Interpay dated 18 February 1999.

(25) Interpay 1996 annual report, pp. 30-31.

(26) The drawee bank and payee bank may be one and the same,

which case the transaction is an intrabank transaction.

in

21. 10. 1999

EN

Official Journal of the European Communities

L 271/35

Multilateral interbank commission

(46)

Technically speaking, a uniform acceptance giro system,
i.e. a payment system which payees and drawees can use
the bank with which they have an
irrespective of
account, can exist only on a specific multilateral basis.
Accordingly, joint agreements on technical specifications
and procedural aspects of
transaction processing are
necessary in order to ensure that the system functions
properly. In practice, it is also necessary for the banks
involved in the transaction to reach an agreement on the
levying of charges: whether to charge or not, and, in the
affirmative, how much. In view of the particular charac-
teristics of a payment system such as the acceptance giro
it goes without saying that such negotiations
system,
have to be conducted in advance before the payment
system is actually used by the banks to process their
customers' payment
transactions. The nature of a
payment system means that, as from the time at which
the payment transaction is launched, the drawees and
payees need to be certain that it will be implemented
immediately by the banks concerned. Since the choice of
banks implementing the transaction is determined by
their respective account holders using the acceptance
giro product, the banks are from that time obliged to
cooperate with each other as partners. Price negotiations
can therefore be effective only in so far as they take
place beforehand. If the banks decide to introduce an
interbank commission, agreement on the amount can in
principle be reached either bilaterally or multilaterally.

(47)

In the present case the banks have decided to impose a
this charge has been a
uniform multilateral charge;
maximum since 1992. It is also possible that a number
of banks might
take the lead by agreeing bilateral
charges, and that other banks might then seek to asso-
ciate themselves with one of those banks, with the result
that the bilateral charges also applied to them (27). The
banks might also agree multilaterally on a formula for
calculating interbank commission with varying para-
meters between banks (28).

(48)

The Commission takes the view that an agreement on a
bilateral interbank charge will normally fall outside the
scope of Article 81(1). By contrast, an agreement on a
multilateral
restriction of
a
charge
interbank
in so far as it
competition caught by Article 81(1)
significantly limits the freedom of banks to determine

is

(27) As was the case prior to the entry into force of the 1991 GSA

agreement.

(28) As was the case in the Netherlands for ATMs until 1998.

(49)

(50)

(51)

(52)

their own charging policy (29). It follows that the multi-
laterally established interbank commission referred to in
Article 5 of the GSA agreement results in competition
being restricted within the meaning of Article 81(1)
because it limits the freedom of the banks participating
in the agreement to determine, on a bilateral basis, the
amount of commission charged for processing accep-
tance giro forms (30).

Practice shows that bilateral negotiations on interbank
commission for the electronic processing of acceptance
giros are technically possible. Before the GSA agreement
entered into force, bilateral agreements had been
concluded between some major banks on payment of
these costs.

Since the fixed tariff was changed to a maximum tariff
on 26 March 1992, the banks participating in the GSA
agreement have had the option of agreeing, on a bilat-
eral basis, a (lower) interbank commission for processing
acceptance giro forms. To date, however, none of the
participating banks has taken up this option. In other
words, the change in the interbank commission from a
fixed charge to a maximum charge has not had any
practical

impact.

transfers

In its notice on cross-border credit
the
Commission states that a restriction of competition of
the kind represented by the uniform interbank commis-
sion will probably also have a negative impact on the
banks' behaviour vis-à-vis their customers. In the accept-
ance giro system,
the interbank commission has a
restrictive effect on the relationship between the (payee)
banks and their customers in so far as it has been
established that the payee banks systematically pass on
the interbank commission for which they are liable to
their customers (the payees). The tariffs charged to
payees by the various banks for processing acceptance
giro forms are not uniform, but they are structurally
increased in fairly uniform fashion by virtue of the fact
that the interbank commission is passed on. Thus the
interbank charge operates de facto as a minimum level
for customer charges.

It emerges from the replies received to a request for
information dated 23 December 1993 sent to the three
largest banks that none of the three banks made a direct
charge to its business customers for using acceptance
giros, and that subsequently a charge of NLG 0,45 (noti-
fication without attachments) was introduced by ABN
AMRO with effect from 1 July 1991 (the date on which
the 1991 GSA agreement came into effect), by Rabo-
bank with effect
from 1 September 1991 (in this
instance the charge of NLG 0,45 was a minimum, the
charge depending on quantity, type and information to
be provided), and by the former NMB Postbank Groep
with effect from 1 January 1992 (31). NMB Postbank

(29) Commission notice on the application of the EC competition rules
(OJ C 251, 27.9.1995, p. 3)

transfers

to cross-border credit
point 40.

(30) See Nederlandse Vereniging van Banken, Commission Decision 89/
512/EEC (OJ L 253, 30.8.1989, p. 1) paragraph 56. The NVB's
challenge to this Decision was held inadmissible by the Court of
First Instance on 17 September 1992 (Case C-138/89 [1992] ECR
1I-2181).

(31) The replies of various banks to the request for information of 5
August 1997 and 18 January 1999 showed that, in 1997 to 1999,
virtually all these banks continued to charge a standard charge of
NLG 0,45 (notification without attachments), although in practice
some deviation from the standard charge was possible.

L 271/36

EN

Official Journal of the European Communities

21. 10. 1999

explicitly stated that business clients would be charged
half of the costs of processing acceptance giros electron-
ically, i.e. the amount of the interbank commission (32).
Documents in the file show that Rabobank and ABN
AMRO and other participants in the GSA agreement
also passed on the interbank commission in full (33).

(53)

(54)

There is nothing to show that the banks have concluded
agreements calling for the systematic passing on of the
interbank commission. The GSA agreement explicitly
allows them to decide autonomously whether to pass
this commission on or not. However, in so far as banks
do decide on an individual basis to pass on the tariff in
question, this is a direct result of the existence of the
GSA agreement, since it provides the crediting bank
with an economic cost item which did not previously
exist. Without an interbank tariff there is nothing to
pass on. To that extent the agreed interbank commission
has a restrictive effect on the relationship between the
crediting bank and the payee.

the multilateral

interbank
The restrictive effect of
commission on the relationship between the payee bank
and the customer is amplified by the fact that each of
the participating banks in intrabank acceptance giro
transactions has applied the same charge to their
customers (payees) as for interbank acceptance giro
transactions, even though the GSA agreement applies
only to interbank transactions. This makes it impossible
for business payees to avoid paying charges for using
acceptance giro forms. In the event of no charges being
made or of a low charge for intrabank acceptance giro
transfers, they would have had the option of opening an
account with several banks in order to reinforce the
intrabank character of their payment flows and thus to
avoid the (higher) charges for interbank acceptance giro
transfers.

(55)

The restriction of competition is appreciable in so far as
all the banks which participate in the acceptance giro
system in the Netherlands are bound by the GSA agree-
ment. The agreement covers the whole of the market.
Sufficiently strong competition between systems can
limit
for
the consequences of an interbank tariff
customer charges, at least in so far as no comparable
interbank tariffs exist in the other systems (34). However,

(32) Enclosure 8 to the reply of

the NMB Postbank Groep of 29
January 1992. See also the letter from ING Bank to a business
customer dated 21 January 1993.

(33) See letters to business customers of ABN AMRO dated 18 October
1991 and 24 October 1991, the letter from ABN Bank Nederland
the letter from Rabobank Heerlen dated 31
dated 4 July 1991,
March 1992,
the letter from Hollandse Koopmansbank dated 6
February 1992, the letter from Bank Mendes Gans NV dated 18
December 1991 and the letter from Commerzbank Nederland NV
dated 13 November 1993.

(34) See in this connection paragraphs 41 and 42 of

the notice on

the sole alternative to the acceptance giro system,
namely the limited alternative of direct debit, also
charges interbank commission.

(56) Accordingly, the GSA agreement is an agreement that
has as its object and effect the prevention, restriction or
distortion of competition through the direct or indirect
fixing of purchase and selling prices within the meaning
of Article 81(1)(a).

In the notice pursuant to Article 19(3) of Regulation No
17, the Commission stated that it intended to take a
favourable view of the GSA agreement. In light of the
judgment of the Court of Justice of 21 January 1999 in
Joined Cases C-215/96 and C-216/96 Bagnasco v Banca
Popolare di Novara (35), the Commission has come to the
conclusion that the GSA agreement does not fall within
the scope of Article 81(1), since the requirement of an
appreciable effect on trade between Member States is not
fulfilled. The reasons are as follows.

Effect on trade between Member States

General

(57)

The Court of Justice has consistently held that, in order
for an agreement between undertakings to affect trade
between Member States, it must be possible to foresee
with a sufficient degree of probability on the basis of a
set of objective factors of law or fact that it may have an
influence, direct or indirect, actual or potential, on the
pattern of trade between Member States, such as might
prejudice the realisation of the aim of a single market in
all the Member States (36). The effect on trade between
Member States is normally the result of a combination
of several factors which, taken separately, are not neces-
sarily decisive (37).

(58)

The Court has likewise consistently held that Article
81(1) of the Treaty applies only to agreements which
can be shown to be capable of appreciably affecting
trade between Member States (38).

(59) As to whether in the light of the case-law of the Court
of Justice the GSA agreement, and the provisions on the
interbank commission in particular, are capable of
affecting trade between Member States, the following
factors should be taken into consideration.

(35) Not yet published in the ECR.
(36) See inter alia Case 42/84 Remia v Commission [1985] ECR 2545.
(37) See inter alia Case 250/92 Gottrup-Klim v Dansk Landbrugs Grovvare-

selskab [1994] ECR I-5641, paragraph 54.

(38) See inter alia Case 219/95 Ferriere Nord v Commission [1997] ECR

cross-border credit transfers (footnote 29).

I-4411, paragraph 19.

21. 10. 1999

EN

Official Journal of the European Communities

L 271/37

The GSA agreement extends over the whole oJthe terri-
tory of the Netherlands

that the cross-border nature of acceptance giros is very
limited.

(60)

(61)

(63)

It can be accepted that the GSA agreement, and in
particular the interbank commission to which it refers,
extends over the whole of the territory of the Nether-
lands. All banks wishing to offer the acceptance giro in
the Netherlands will be obliged in practice to sign up to
the GSA agreement. Since payees and drawees do not
necessarily have an account with the same bank, banks
will have to be certain that the acceptance giro form
used by their customer will also be accepted by the bank
of their customer's counterparty.

The Court of Justice has ruled in a number of cases that
behaviour restricting competition and extending over
the whole of the territory of a Member State by its very
nature has the effect of reinforcing the compartmental-
isation of markets on a national basis, thereby holding
up the economic interpenetration which the Treaty is
designed to bring about (39). However, this is not in itself
sufficient to show that there is an appreciable effect on
trade between Member States. Other factors also have to
be taken into account. The following facts are of rel-
evance in that connection (40).

Economic activities concerned by acceptance giros

(62)

Participation in the acceptance giro system is not limited
to firms (payees) and individuals (originators) based in
the Netherlands, but
is open to anyone holding an
account with a bank participating in the acceptance giro
system. However, the economic activities concerned by
payment by acceptance giro are largely limited to
Netherlands territory, either by contractual provisions,
or by their very nature, as in the case of supplies of
goods and services (gas, electricity, or telephone) (41). As
regards demand for acceptance giros (i.e. customers,
payees and drawees, who use acceptance giros as a
payment instrument), it must accordingly be concluded

(39) See inter alia judgment of

Justice in Case 8/72
Vereeniging van Cementhandelaren v Commission [1972] ECR 977,
paragraph 29,
judgment of the Court of First Instance in Case T-
29/92 SPO v Commission [1995] ECR II-289, paragraph 229.

the Court of

(40) See footnote 34.
(41) See ABI, Commission Decision 87/103/EEC (OJ L 43, 13.2.1987,

p. 51) recited 37.

Participation of non-Netherlands banks

Consideration has to be given not just to the demand for
the acceptance giro product but also to supply, that is to
say to the banks that offer acceptance giros. It is clear
that branches (42) and subsidiaries (43) of non-Nether-
lands banks have participated in the acceptance giro
system to a significant extent. According to the NVB, at
the end of 1997 there were 58 banks participating in
the acceptance giro system, of which 27 were foreign
banks. Of those foreign banks, 11 were from Member
States of
the Community (six subsidiaries and five
branches). However, the proportion of the acceptance
giro system accounted for by those foreign banks was
relatively modest. Of a total of almost 100 000 accept-
ance giro contracts in 1997, the overwhelming majority
(about 91 %) were conducted on behalf of the major
banks (ABN AMRO, Rabo, ING Bank and Postbank).
Foreign banks accounted for less than 1 % of the accep-
tance giro contracts concluded. They also accounted for
a very modest share of the acceptance giro transactions
processed: less than 1 % for debits and less than 5 % for
credits (44).

Importance of participation in the GSA agreement for
non-Netherlands banks

(64) At mid-1997 a total of 115 banks were active on the
Netherlands market, of which 68 were Netherlands
banks and 47 foreign (19 banks from other Member
States and 28 from third countries) (45). About one third
of the foreign banks active in the Netherlands do not
offer the acceptance giro product. As regards the 27
foreign banks which do offer the product and which
have signed the GSA agreement, it can hardly be said
that the opportunity to offer the product was an import-
ant factor when they decided to enter the Netherlands
market, given its relatively limited importance to them
(see recital 63).

(65)

In conclusion, in the light of the above factors, taken
together, it cannot be said that the GSA agreement is
capable of appreciably affecting trade between Member
States,

(42) As a result of

the strong financial

ties between foreign parent
companies and their branches in the Netherlands, branches must be
seen as an extension of the relevant parent companies irrespective
of their legal status. The activities of these branches must accor-
dingly be seen as a part of the trade between Member States. See
judgment of the Court of Justice in Case 45/85 Verband der Sachver-
sicherer v Commission [1987] ECR 458.

(43) Subsidiaries of foreign banks based in the Netherlands are regarded
as foreign banks by De Nederlandsche Bank where non-residents
have a shareholding of at least 50 % (see DNB 1991 annual report
and DNB's reply to the request for information dated 5 August
1997). The NVB itself also uses this definition (see NVB 1998
annual report, p. 54). The Bagnasco judgment
(see footnote 35)
demonstrates that the Court regards the participation not just of
branches but also of subsidiaries of foreign banks as being relevant
to the issue of whether trade between Member States has been
affected.

(44) Letters from the NVB dated 25 March 1997 and 8 March 1999.
(45) These were general banks, cooperative banks, savings banks and
mortgage banks (Annex VI to the letter from the NVB dated 18
July 1997).

L 271/38

EN

Official Journal of the European Communities

21. 10. 1999

HAS ADOPTED THIS DECISION:

Article 1

On the basis of the facts in its possession, there are no grounds under Article 81(1) of the Treaty for action
on the part of the Commission in respect of the 1991 GSA agreement notified by the Nederlandse
Vereniging van Banken (NVB).

Article 2

This Decision is addressed to:

De Nederlandse Vereniging van Banken
Singel 236
NL-1016 AB Amsterdam

Done at Brussels, 8 September 1999.

For the Commission

Karel VAN MIERT

Member of the Commission

21. 10. 1999

EN

Official Journal of the European Communities

L 271/39

ANNEX I

Overview of banks participating in the GSA agreement

(at 31.12.1997)

1. ABN AMRO Bank NV

2. Aegon Bank NV

3. Asahi Bank (Nederland) NV

4. ASR Bank NV

5. AVCB Bank NV

6. Banco di Brasil SA

7. Banco do Estado de São Paulo SA

8. Banco Exterior de España SA

9. Bank Bercoop NV

10. Bank Brussel Lambert NV

11. Bank Insinger de Beaufort NV

12. Bank Labouchere NV

13. Bank Mendes Gans NV

14. NV Bank Nederlandse Gemeenten

15. Bank of America NT & SA

16. Bank of Tokyo-Mitsubishi (Holland) NV

17. Banque Artesia Nederland NV

18. Barclays Bank PLC

19. Chang Hwa Commercial Bank (Europe) NV

20. Citibank NA

21. Commerzbank Nederland NV

22. Crediet & Effectenbank NV

23. Dai-Ichi Kangyo Bank Nederland NV

24. NV De Indonesische Overzeese Bank

25. De Nederlandsche Bank

26. Delta Lloyd Bank NV

27. Demir-Halk Nederland NV

28. Deutsche Bank AG

29. F. van Lanschot Bankiers NV

30. FGH Bank NV

31. Fortis Bank Nederland NV

32. Frieslandbank NV

33. Fuji Bank Nederland NV

34. Generale Bank Nederland NV

35. GWK Bank NV

36. Hollandse Koopmansbank NV

37. ING Bank NV

38. Kas-Associatie NV

39. KBC Bank Nederland NV

40. Koçbank Nederland NV

41. Korea Exchange Bank

42. Lloyds Bank PLC

43. MeesPierson NV

44. National Bank of Greece

45. Nederlandse Waterschapsbank NV

46. OHRA Bank NV

47. OV-Bank NV

48. Postbank NV

49. Rabobank Nederland

50. Roparco NV

51. San Paolo Bank

52. SBS-Agro Bank Nederland NV

53. SNS Bank Nederland NV

54. Staal Bankiers NV

55. Theodoor Gilissen Bankiers NV

56. Tokai Bank Nederland NV

57. Triodosbank NV

58. United Garanti Bank International NV

L 271/40

EN

Official Journal of the European Communities

21. 10. 1999

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