"Payment cards are the most frequently used electronic payment instrument for retail purchases. However, integration of the [European] Union [(EU)] payment card market is far from complete as many payment solutions cannot develop beyond their national borders and new pan-[EU] players are prevented from entering the market.".1 The EU Proposal for a Regulation of the European Parliament and of the Council on Interchange Fees for Card-Based Payment Transactions (the Regulation2) is intended to address each of these issues.
First things first: scope and definitions
The Regulation will apply to card-based payment transactions carried out within the EU, where the payer's and the payee's payment services providers are both in the EU. However, it won't apply to commercial card transactions, or cash withdrawals at ATMs.3For these purposes: 4
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Restrictions on interchange fees
The following fee caps will take effect 6 months after the Regulation comes into force:7
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For these purposes, "any agreed remuneration, including net compensation, which has the equivalent object or effect as an interchange fee, received by an issuer from the payment card scheme, acquirer, or any other intermediary, in relation to payment transactions or related activities shall be treated as part of the interchange fee."
The Regulation has a number of other provisions designed to encourage competition and enhance consumer protection. The Regulation will:
- (From 6 months after it comes into force), 9 prohibit (i) intra-EU territorial restrictions; (ii) requirements or obligations to obtain country specific licences or authorisations to operate on a cross-border basis; and (iii) (in either case) rules with an equivalent effect in licensing agreements or payment card scheme rules;
- (From 12 months after it comes into force),10 require that payment card schemes and processing entities:< >Are separated in accounting and organisational terms;Do not:Present bundled prices for payment card scheme and processing activities;Cross-subsidise these activities;Discriminate between (i) their subsidiaries or shareholders, on the one hand; and (ii) users of these schemes, and other contractual partners, on the other; orMake the provision of any service they offer conditional on the acceptance of any other service they offer;(From 12 months after it comes into force),11 payment card schemes and processing entities are prohibited from including in their scheme rules and licensing agreements, any provisions that "hinder or prevent an issuer from co-badging different payment brands on a card based payment service".(From 12 months after it comes into force),12 require processing entities within the EU to ensure that their systems are interoperable with the systems of other processing entities by meeting the standards developed by international or European standardisation bodies;(From 12 months after it comes into force), require acquirers to:Offer and charge payees merchant service charges that are individually specified for different categories and different brands of payment cards with different interchange levels (unless merchants make a written request for blended merchant service charges); andInclude in their agreements with payees individually specified information on the amount of the merchant services charges, interchange fees and scheme fees applicable to each category and brand of payment cards, unless the payee subsequently makes a different request in writing".(From 6 months after it comes into force),13 require the payee's PSP to provide the payee with:
- "The reference enabling the payee to identify the card-based payment transaction";
- "The amount of the payment transaction in the currency in which the payee's payment account is credited"; and
- The amount of any charges for the card-based payment transaction, with the merchant service charge and the amount of the interchange fees appearing separately;
(in each case), at least once a month, in a form that allows the payee to store and reproduce the information unchanged.
- (From 12 months after it comes into force),14 prohibit application of the ‘Honour all Cards' rule which "obliges payees accepting a card-based payment instrument issued by one issuer also to accept other card-based payment instruments issued within the framework of the same payment card scheme". The prohibition will not apply to "consumer card-based payment instruments of the same brand and the same category of prepaid card, debit card or credit card subject to interchange fees". What this means is that a merchant accepting debit cards for example, will not be obliged to accept credit cards, but would be obliged to accept debit cards of the same brand, which are subject to the same regulated interchange fee. The aim is to enable "merchants to limit the choice of payment cards they offer to low(er) cost payment cards only", which "benefit[s] consumers through reduced merchants' costs", and to "protect…the consumer's ability to use the payment cards [of the same brand and category] as often as possible ."
- (From the date that the Regulation enters into force), 15prohibit "any rule in licensing agreements, in scheme rules…and in agreements…between card acquirers and payees preventing payees from steering consumers to the use of any payment instrument preferred by the payee". Payees will also be forbidden from "treating card-based payment instruments of a given payment card scheme more or less favourably than others".
The final text of the Regulation was adopted by the European Parliament at first reading in a plenary session on 10 March 2015 and adopted by the European Council on 20 April 2015. The next step will be publication in the Official Journal of the EU, which is expected to happen sometime this year. The Regulation will come into force 20 days after publication in the Official Journal and will have direct effect in Member States.16
The Regulation should be read alongside, and interpreted with, the proposed second Payment Services Directive (PSD2) (for further information, read our Client Alert here). The legislative proposals for PSD2 were published at the same time as the European Commission adopted proposals for the Regulation. PSD2 will ban surcharges17 for card-based payment transactions, which the Commission argues will no longer be justified after interchange fees are capped by the Regulation because merchants' costs for card-based transactions will reduce. These changes are intended by the European institutions to form part of a cohesive legislative whole that will enhance consumer protection, lower prices and fees, and ensure the continued development of the internal market in respect of payment services over time.