Opinion of the European Central Bank of 31 May 2005 at the request of the Danish Competition Authority on a proposal for a law amending the Act on certain means of payment (CON/2005/15)
Date: 2005-05-31
Institutions: European Central Bank
Subjects: Denmark, bank charges, consumer protection, money, national law, payment system

EN 

OPINION OF THE EUROPEAN CENTRAL BANK 

of 31 May 2005 

at the request of the Danish Competition Authority  

on a proposal for a law amending the Act on certain means of payment  

(CON/2005/15) 

1. 

On  21  March  2005 

the  European  Central  Bank  (ECB)  received  a  request  from 

the 

Konkurrencestyrelsen (the Danish Competition Authority) for an opinion on a proposal for a law 

amending  the  Lov  om  visse  betalingsmidler  (Act  on  certain  means  of  payment)  (hereinafter  the 

‘draft law’). 

2. 

The ECB’s competence to deliver an opinion is based on Article 105(4) of the Treaty establishing 

the  European  Community  and  the  second  and  fifth  indents  of  Article  2(1)  of  Council  Decision 

98/415/EC  of  29 June  1998  on  the  consultation  of  the  European  Central  Bank  by  national 
authorities regarding draft legislative provisions1, as the draft law contains provisions concerning 

means  of  payment  and  payment  and  settlement  systems.  In  accordance  with  the  first  sentence  of 

Article 17.5 of the Rules of Procedure of the European Central Bank, the Governing Council has 

adopted this opinion. 

3. 

The draft law focuses on two main issues. First, credit institutions established in Denmark, which 

jointly  own  and  operate  Dankort  (the  Danish  debit  card  system),  will  no  longer  be  allowed  to 

charge consumers a fee of DKK 0.50 per physical transaction when consumers use a Dankort with 

a  chip.  Instead,  according  to  the  draft  law,  credit  institutions  will  only  be  allowed  to  charge 

merchants  an  annual  subscription  fee  for  the  costs  of  operating  the  Dankort  system.  Moreover, 

according  to  the  draft  law,  the  Minister  of  Economic  and  Business  Affairs  (hereinafter  the 

‘Minister’)  may  lay  down  detailed  rules  for  how  the  annual  Dankort  subscription  shall  be 

calculated. Second, the draft law prohibits merchants from passing on Dankort costs to consumers 

both in respect of physical and non-physical (i.e., Internet) transactions. In addition, in accordance 

with powers given in Article 1.7 of the current Act on certain means of payment, the Minister may 

exempt internationally issued (i.e., non-Danish) means of payment from the provisions of the draft 

law. From the comments which accompanied the draft law, the ECB understands that it is intended 

that the Minister will exercise his existing right to issue secondary legislation to exempt payment 

instruments provided by service providers established outside Denmark from the provisions of the 

1  

OJ L 189, 3.7.1998, p. 42. 

 
 
 
                                                      
draft  law,  so  that  such  service  providers  could  still  charge  fees  from  the  redeeming  banks  in 

connection with each transaction, and merchants would be free to charge the consumers for using 

such cards. 

4.  While recognising that Denmark has not adopted the single currency, the ECB would like to draw 

attention to the European banking industry’s project for a Single Euro Payments Area (SEPA), the 

aim of which is to abolish barriers to payments within the euro area. More specifically, the purpose 

of the SEPA project is to create a single domestic payments market in which citizens and economic 

actors will be able to make payments as easily and inexpensively as in their place of residence. The 

establishment of a Single Payment Market is also an objective of the European Commission, which 

aims to bring European cross-border and national payments to the same level of efficiency as the 

best  national  system.  Notwithstanding  the  right  of  national  legislators  to  adopt  legislation  on 

consumer protection measures, the creation of national rules might have the potential to fragment 

the market, create obstacles and impose costs on providers and users who wish to operate and carry 

out transactions in the wider EU market. Another potential distortion may arise in the provision of 

acquiring services or issuing cards in Denmark, given that the existence of a business model which 

is fixed by law and which prohibits the imposition of charges on consumers will not facilitate other 

European business models entering the market.  

5. 

The ECB is of the opinion that legally binding measures to restrict free pricing have to be carefully 

considered and an assessment made as to whether they are compatible with the principle of an open 

market  economy  with  free  competition,  as  laid  down  by  Article  4(1)  of  the  Treaty  and  the  other 

objectives recognised by the Treaty, and consistent with the principle of proportionality. 

6. 

This opinion will be published on the ECB’s website. 

Done at Frankfurt am Main, 31 May 2005. 

[signed] 

The President of the ECB 

Jean-Claude TRICHET 

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