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MasterCard Loses appeal against the European Commission's decision

1. On 24 May 2012, the General Court of the European Union handed down judgment upholding the decision by the European Commission (the “Commission”) in 2007 that the member bank delegates of MasterCard had collectively set cross border fall back multilateral interchange fees (“MIF”). This amounted to a decision of an association of undertakings to fix prices which restricted competition in the market for the acquiring banks contrary to Article 101 of the Treaty on the Functioning of the European Union (“TFEU”).

2. In the absence of a bilateral agreement between an issuing and acquiring bank, a fall back MIF is charged. This is a fee which is set by many banks and is charged by the issuing bank to the acquiring bank for each transaction made with a payment card.

What did the court rule?

3. In its May 2012 judgement, the General Court held that:

a. the MIF restricted competition in that it inflate[d] the merchant service charge paid by all merchants to their banks when the customer uses a MasterCard payment card.

b. the MIF was not objectively necessary for the operation of MasterCard’s payment scheme in that the scheme could still function without the MIF.

c. the scheme did not satisfy Article 101(3) TFEU exemption criteria as MasterCard failed to sufficiently prove that the MIF contributed to technical or economic progress and that the benefits of the MIF were passed down to consumers.

Remedy

4. MasterCard has not been fined because it originally notified the payment scheme under the previous competition structure which enabled an individual exemption to be obtained by notifying agreements to the Commission. The corollary of that notification scheme was immunity from fines if the agreements were found to be anti-competitive.

5. The General Court’s judgment requires that MasterCard identify a method of setting the MIF which would satisfy the Article 101(3) TFEU criteria. If MasterCard fails to do this within six months of the General Court’s judgment, MasterCard could be subject to daily periodic penalty payments. The Commission could also require the MIF to be removed from the scheme completely.

Impact of the judgement

6. The impact of the judgement will not be known for some time as MasterCard has appealed the General Court’s judgement to the Court of Justice of the European Union (“CJEU”), a process which could take years rather than months. MasterCard had offered undertakings to the Commission during the appeal proceedings to avoid paying a fine. It is unclear whether MasterCard will offer similar undertakings pending the outcome of its appeal to the CJEU.

7. The Commission is also pursuing Visa in relation to its consumer credit card MIFS. Visa has commenced a dialogue which, if acceptable to the Commission, may result in commitments being accepted.

 Why is this judgement important?

8. The judgement is also important as it is suggested that reducing the MIF will reduce costs for merchants and ultimately consumers thereby encouraging consumer spending.

9. On a policy level, this judgement sends a clear message that while the Commission has been keen for industry to spearhead the development of a single payments market, industry participants need to be careful not to fall foul of competition law when setting standards.

For more information, please contact Elisabetta Rotondo.