{"attribution":{"source":"legal.exploreworldai.com","canonical":"https://legal.exploreworldai.com/api/public/v1/judgment-text?id=eu:c-549-23","cite_as":"NovaCopilot, legal.exploreworldai.com (https://legal.exploreworldai.com/api/public/v1/judgment-text?id=eu:c-549-23)","license":"https://legal.exploreworldai.com/revision","version":"legal-2026-11-02","fingerprint":"ewai:eu:f6410a","proof":"sha256:47a934970911d7e563b013abe4e82c5b41566382b728a7719c58e5bdfb5c0a8b","jurisdiction":"eu","lang":"en","publisher":"NovaCopilot by ExploreWorld Legal","terms":"https://legal.exploreworldai.com/om"},"brand_source":"Source: NovaCopilot","item":{"schema_version":"1.0.0","id":"eu:c-549-23","jurisdiction":"eu","lang":"en","brand_source":"Source: NovaCopilot","brand":{"product":"NovaCopilot","platform":"ExploreWorldAI","infrastructure":"ExploreWorld Legal","infrastructure_url":"legal.exploreworldai.com","legal_entity":"Valkiv Ventures AB","permanent_url":"https://legal.exploreworldai.com/novacopilot","source":"Source: NovaCopilot","powered_by":"Powered by NovaCopilot","license":"https://legal.exploreworldai.com/licensvillkor"},"sections":[{"title":"Provisional text","paragraphs":[]},{"title":"JUDGMENT OF THE COURT (Second Chamber)","paragraphs":[]},{"title":"16 April 2026 ( * )","paragraphs":["para_4","para_5","para_6","para_7","para_8","para_9","para_10"]},{"title":"Koninklijke Luchtvaart Maatschappij NV","paragraphs":["para_12","para_13","para_14","para_15","para_16"]},{"title":"Autoriteit Consument en Markt","paragraphs":["para_18"]},{"title":"American Express Europe SA","paragraphs":["para_20","para_21","para_22","para_23","para_24","para_25","para_26","para_27","para_28","para_29","para_30","para_31","para_32","para_33","para_34","para_35","para_36","para_37","para_38","para_39","para_40"]},{"title":"Judgment","paragraphs":["para_42","para_43"]},{"title":"Legal context","paragraphs":[]},{"title":"3         Recitals 10, 28, 29, 31 and 32 of Regulation 2015/751 read as follows:","paragraphs":["para_46","para_47","para_48","para_49","para_50","para_51","para_52","para_53","para_54","para_55","para_56","para_57","para_58"]},{"title":"5         Article 2 of that regulation, headed ‘Definitions’, states as follows:","paragraphs":["para_60","para_61","para_62","para_63","para_64","para_65","para_66","para_67","para_68","para_69","para_70","para_71","para_72","para_73","para_74","para_75","para_76","para_77","para_78","para_79"]},{"title":"7         Article 5 of that regulation, headed ‘Prohibition of circumvention’, provides:","paragraphs":["para_81"]},{"title":"The dispute in the main proceedings and the questions referred for a preliminary ruling","paragraphs":["para_83","para_84","para_85","para_86","para_87","para_88","para_89","para_90","para_91","para_92","para_93","para_94","para_95","para_96","para_97","para_98","para_99","para_100","para_101","para_102","para_103","para_104","para_105","para_106","para_107","para_108","para_109","para_110"]},{"title":"Consideration of the questions referred","paragraphs":[]},{"title":"The first question","paragraphs":["para_113","para_114","para_115","para_116","para_117","para_118","para_119","para_120","para_121","para_122","para_123","para_124","para_125","para_126","para_127","para_128","para_129","para_130","para_131","para_132","para_133","para_134","para_135"]},{"title":"The second question","paragraphs":["para_137","para_138","para_139","para_140","para_141","para_142","para_143","para_144"]},{"title":"The third to the fifth questions","paragraphs":["para_146","para_147","para_148","para_149","para_150","para_151","para_152","para_153","para_154","para_155","para_156","para_157","para_158","para_159"]},{"title":"The sixth question","paragraphs":["para_161","para_162","para_163","para_164","para_165","para_166","para_167"]},{"title":"The seventh question","paragraphs":["para_169","para_170","para_171","para_172","para_173","para_174","para_175","para_176"]},{"title":"Costs","paragraphs":["para_178"]},{"title":"On those grounds, the Court (Second Chamber) hereby rules:","paragraphs":["para_180","para_181","para_182","para_183","para_184","para_185","para_186"]}],"paragraphs":[{"text":"Provisional text","paragraph_id":"para_1"},{"text":"JUDGMENT OF THE COURT (Second Chamber)","paragraph_id":"para_2"},{"text":"16 April 2026 ( * )","paragraph_id":"para_3"},{"text":"( Reference for a preliminary ruling – Payment services in the internal market – Regulation (EU) 2015/751 – Article 2(10) – Interchange fees for card-based payment transactions – Article 2(11) – Net compensation – Article 4 – Cap on the amount of those fees – Article 5 – Prohibition of circumvention …","paragraph_id":"para_4"},{"text":"In Case C‑549/23,","paragraph_id":"para_5"},{"text":"REQUEST for a preliminary ruling under Article 267 TFEU from the College van Beroep voor het bedrijfsleven (Supreme Administrative Court for Trade and Industry, Netherlands), made by decision of 29 August 2023, received at the Court on the same day, in the proceedings","paragraph_id":"para_6"},{"text":"American Express Europe SA,","paragraph_id":"para_7"},{"text":"American Express Carte France SA,","paragraph_id":"para_8"},{"text":"Visa Europe Ltd,","paragraph_id":"para_9"},{"text":"Mastercard Europe SA,","paragraph_id":"para_10"},{"text":"Koninklijke Luchtvaart Maatschappij NV","paragraph_id":"para_11"},{"text":"v","paragraph_id":"para_12"},{"text":"Autoriteit Consument en Markt,","paragraph_id":"para_13"},{"text":"intervening party:","paragraph_id":"para_14"},{"text":"International Card Services BV ,","paragraph_id":"para_15"},{"text":"and","paragraph_id":"para_16"},{"text":"Autoriteit Consument en Markt","paragraph_id":"para_17"},{"text":"v","paragraph_id":"para_18"},{"text":"American Express Europe SA","paragraph_id":"para_19"},{"text":"American Express Carte France SA,","paragraph_id":"para_20"},{"text":"Visa Europe Ltd,","paragraph_id":"para_21"},{"text":"Mastercard Europe SA,","paragraph_id":"para_22"},{"text":"Koninklijke Luchtvaart Maatschappij NV,","paragraph_id":"para_23"},{"text":"intervening party:","paragraph_id":"para_24"},{"text":"International Card Services BV,","paragraph_id":"para_25"},{"text":"THE COURT (Second Chamber),","paragraph_id":"para_26"},{"text":"composed of K. Jürimäe, President of the Chamber, K. Lenaerts, President of the Court, acting as Judge of the Second Chamber, F. Schalin, M. Gavalec and Z. Csehi (Rapporteur), Judges,","paragraph_id":"para_27"},{"text":"Advocate General: J. Richard de la Tour,","paragraph_id":"para_28"},{"text":"Registrar: A. Lamote, Administrator,","paragraph_id":"para_29"},{"text":"having regard to the written procedure and further to the hearing on 12 December 2024,","paragraph_id":"para_30"},{"text":"after considering the observations submitted on behalf of:","paragraph_id":"para_31"},{"text":"–        American Express Europe SA and American Express Carte France SA, by J.K. de Pree, advocaat, and A. Komninos, dikigoros,","paragraph_id":"para_32"},{"text":"–        Visa Europe Ltd, by M.H.J.M. Immerzeel, W. Knibbeler and E.S. Lambooij, advocaten,","paragraph_id":"para_33"},{"text":"–        Mastercard Europe SA, by D.P. Kuipers, J. van Roosmalen and P.M. Waszink, advocaten,","paragraph_id":"para_34"},{"text":"–        Koninklijke Luchtvaart Maatschappij NV, by R.P. Raas, S. Ramsanjhal and J.R. van Angeren, advocaten,","paragraph_id":"para_35"},{"text":"–        the Autoriteit Consument en Markt, by J. Mulder and A.D. Röell, advocaten,","paragraph_id":"para_36"},{"text":"–        International Card Services BV, by J.P. Postma, Q.J. Tjeenk Willink and J.C.M. van der Beek, advocaten,","paragraph_id":"para_37"},{"text":"–        the European Commission, by C. Auvret, N. Cambien, I.V. Rogalski and H. Tserepa-Lacombe, acting as Agents,","paragraph_id":"para_38"},{"text":"after hearing the Opinion of the Advocate General at the sitting on 6 March 2025,","paragraph_id":"para_39"},{"text":"gives the following","paragraph_id":"para_40"},{"text":"Judgment","paragraph_id":"para_41"},{"text":"1         This request for a preliminary ruling concerns the interpretation of the second sentence of Article 2(10), Article 2(11) and Articles 4 and 5 of Regulation (EU) 2015/751 of the European Parliament and of the Council of 29 April 2015 on interchange fees for card-based payment transactions (OJ 2015 L 123, p. 1).","paragraph_id":"para_42"},{"text":"2         The request has been made in disputes between, in the first place, on the one hand, American Express Europe SA, American Express Carte France SA (together, ‘Amex’), Visa Europe Ltd, Mastercard Europe SA and Koninklijke Luchtvaart Maatschappij NV (‘KLM’), an airline in its capacity as Amex’ …","paragraph_id":"para_43"},{"text":"Legal context","paragraph_id":"para_44"},{"text":"3         Recitals 10, 28, 29, 31 and 32 of Regulation 2015/751 read as follows:","paragraph_id":"para_45"},{"text":"‘(10)      Interchange fees are usually applied between the card-acquiring payment service providers and the card-issuing payment service providers belonging to a certain payment card scheme. Interchange fees are a main part of the fees charged to merchants by acquiring payment service providers for …","paragraph_id":"para_46"},{"text":"…","paragraph_id":"para_47"},{"text":"(28)      Card-based payment transactions are generally carried out on the basis of two main business models, so-called “three party payment card schemes” (cardholder – acquiring and issuing scheme – merchant) and “four party payment card schemes” (cardholder – issuing bank – acquiring bank – mercha …","paragraph_id":"para_48"},{"text":"(29)      The issuing service is based on a contractual relationship between the issuer of the payment instrument and the payer, irrespective of whether the issuer is holding the funds on behalf of the payer. The issuer makes payment cards available to the payer, authorises transactions at terminals …","paragraph_id":"para_49"},{"text":"…","paragraph_id":"para_50"},{"text":"(31)      It is important to ensure that the provisions concerning the interchange fees to be paid or received by payment service providers are not circumvented by alternative flows of fees to issuers. To avoid this, the “net compensation” of fees paid or received by the issuer, including possible a …","paragraph_id":"para_51"},{"text":"(32)      Consumers tend to be unaware of the fees paid by merchants for the payment instrument they use. At the same time, a series of incentivising practices applied by issuers (such as travel vouchers, bonuses, rebates, charge backs, free insurances, etc.) may steer consumers towards the use of p …","paragraph_id":"para_52"},{"text":"4         Chapter I of that regulation, headed ‘General provisions’, includes Article 1, headed ‘Scope’, which provides, in paragraphs 3 and 5:","paragraph_id":"para_53"},{"text":"‘3.      Chapter II does not apply to the following:","paragraph_id":"para_54"},{"text":"…","paragraph_id":"para_55"},{"text":"(c)      transactions with payment cards issued by three party payment card schemes.","paragraph_id":"para_56"},{"text":"…","paragraph_id":"para_57"},{"text":"5.      When a three party payment card scheme licenses other payment service providers for the issuance of card-based payment instruments or the acquiring of card-based payment transactions, or both, or issues card-based payment instruments with a co-branding partner or through an agent, it is cons …","paragraph_id":"para_58"},{"text":"5         Article 2 of that regulation, headed ‘Definitions’, states as follows:","paragraph_id":"para_59"},{"text":"‘For the purposes of this Regulation, the following definitions shall apply:","paragraph_id":"para_60"},{"text":"…","paragraph_id":"para_61"},{"text":"(2)      “issuer” means a payment service provider contracting to provide a payer with a payment instrument to initiate and process the payer’s card-based payment transactions;","paragraph_id":"para_62"},{"text":"…","paragraph_id":"para_63"},{"text":"(10)      “interchange fee” means a fee paid for each transaction directly or indirectly (i.e. through a third party) between the issuer and the acquirer involved in a card-based payment transaction. The net compensation or other agreed remuneration is considered to be part of the interchange fee;","paragraph_id":"para_64"},{"text":"(11)      “net compensation” means the total net amount of payments, rebates or incentives received by an issuer from the payment card scheme, the acquirer or any other intermediary in relation to card-based payment transactions or related activities;","paragraph_id":"para_65"},{"text":"(12)      “merchant service charge” means a fee paid by the payee to the acquirer in relation to card-based payment transactions;","paragraph_id":"para_66"},{"text":"(13)      “payee” means a natural or legal person who is the intended recipient of funds which have been the subject of a payment transaction;","paragraph_id":"para_67"},{"text":"…","paragraph_id":"para_68"},{"text":"(17)      “four party payment card scheme” means a payment card scheme in which card-based payment transactions are made from the payment account of a payer to the payment account of a payee through the intermediation of the scheme, an issuer (on the payer’s side) and an acquirer (on the payee’s side);","paragraph_id":"para_69"},{"text":"(18)      “three party payment card scheme” means a payment card scheme in which the scheme itself provides acquiring and issuing services and card-based payment transactions are made from the payment account of a payer to the payment account of a payee within the scheme. When a three party payment …","paragraph_id":"para_70"},{"text":"…","paragraph_id":"para_71"},{"text":"(24)      “payment service provider” means any natural or legal person authorised to provide the payment services listed in the Annex to Directive 2007/64/EC [of the European Parliament and of the Council of 13 November 2007 on payment services in the internal market amending Directives 97/7/EC, 200 …","paragraph_id":"para_72"},{"text":"…","paragraph_id":"para_73"},{"text":"(30)      “payment brand” means any material or digital name, term, sign, symbol or combination thereof, capable of denoting under which payment card scheme card-based payment transactions are carried out;","paragraph_id":"para_74"},{"text":"…","paragraph_id":"para_75"},{"text":"(32)      “co-branding” means the inclusion of at least one payment brand and at least one non-payment brand on the same card-based payment instrument;","paragraph_id":"para_76"},{"text":"…’","paragraph_id":"para_77"},{"text":"6         Chapter II of the same regulation, headed ‘Interchange fees’, includes Articles 3 to 5 of that regulation. Article 4 of Regulation 2015/751, headed ‘Interchange fees for consumer credit card transactions’, provides as follows:","paragraph_id":"para_78"},{"text":"‘Payment service providers shall not offer or request a per transaction interchange fee of more than 0,3% of the value of the transaction for any credit card transaction. For domestic credit card transactions Member States may define a lower per transaction interchange fee cap.’","paragraph_id":"para_79"},{"text":"7         Article 5 of that regulation, headed ‘Prohibition of circumvention’, provides:","paragraph_id":"para_80"},{"text":"‘For the purposes of the application of the caps referred to in Articles 3 and 4, any agreed remuneration, including net compensation, with an equivalent object or effect of the 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.’","paragraph_id":"para_81"},{"text":"The dispute in the main proceedings and the questions referred for a preliminary ruling","paragraph_id":"para_82"},{"text":"8         It is clear from the order for reference that Amex operates a three party payment card scheme, within the meaning of Article 2(18) of Regulation 2015/751.","paragraph_id":"para_83"},{"text":"9         In 2010, Amex entered into a co-branding partnership with KLM which was to commence on 1 June 2011 and end on 1 June 2019; as part of that scheme, Amex was to issue co-branded credit cards.","paragraph_id":"para_84"},{"text":"10       One aspect of the partnership concerns access to KLM’s loyalty programme (‘the Flying Blue programme’), which enables KLM’s customers to earn loyalty points (‘miles’) when travelling on KLM flights or making purchases from KLM’s partners. Customers may exchange their miles for KLM’s flights …","paragraph_id":"para_85"},{"text":"11       Throughout that cooperation, in addition to a ‘signing bonus’, Amex paid KLM four other types of remuneration, namely (i) an annual fee for the use of KLM’s commercial brands and access to the Flying Blue programme, (ii) a percentage of the remuneration that Amex receives from the cardholder for the use of the card, (iii) a percentage of the value of purchases made with the card, and (iv) remuneration for the purchase of ‘miles’.","paragraph_id":"para_86"},{"text":"12       In addition, it is also clear from the order for reference that KLM, in its capacity as payee in the context of co-branded card-based payment transactions, paid service charges to Amex.","paragraph_id":"para_87"},{"text":"13       In 2018, Amex and KLM concluded new partnership agreements. Under those agreements, Amex paid KLM a ‘singing bonus’ in 2018 and must pay KLM amounts corresponding to the annual fee for the use of KLM’s brands and for access to the Flying Blue programme and to the remuneration for the purchase of miles.","paragraph_id":"para_88"},{"text":"14       Prior to those new agreements, in May 2017, the ACM opened an investigation into the partnership between Amex and KLM. On the basis of that investigation, by decision of 6 March 2019, the ACM imposed on Amex an administrative direction on pain of penalty for infringement of Article 4 in con …","paragraph_id":"para_89"},{"text":"15       Amex and KLM brought an administrative action against that decision and, at the same time, made an application before the rechtbank Rotterdam (District Court, Rotterdam, Netherlands) for interim measures.","paragraph_id":"para_90"},{"text":"16       By order of 24 July 2019, the judge hearing applications for interim measures at the rechtbank Rotterdam (District Court, Rotterdam) suspended the operation of the direction at issue on the ground that it did not take into account, in the calculation of the amount of the interchange fees, the value of the miles purchased by Amex from KLM, which should have been deducted from the remuneration paid to KLM.","paragraph_id":"para_91"},{"text":"17       By decision of 22 January 2020 (‘the contested decision’), the ACM declared the objections raised by Amex and KLM against the administrative direction on pain of penalty imposed by the decision of 6 March 2019 to be unfounded. The ACM found that any remuneration paid by a three party paymen …","paragraph_id":"para_92"},{"text":"18       Furthermore, by decision of 21 December 2020, the ACM claimed EUR 10 million from Amex as a penalty, on the grounds that it had not complied with the administrative direction imposed by the decision of 6 March 2019. While the ACM accepted the method used by Amex in its response to that dire …","paragraph_id":"para_93"},{"text":"19       Amex and KLM challenged the decision at issue and the recovery decision of 21 December 2020 before the rechtbank Rotterdam (District Court, Rotterdam).","paragraph_id":"para_94"},{"text":"20       The rechtbank Rotterdam (District Court, Rotterdam) inferred from the judgment of 7 February 2018, American Express (C‑304/16, EU:C:2018:66), that a three party payment card scheme that concludes a co-branding agreement must be classified as a four party payment card scheme, even if the co- …","paragraph_id":"para_95"},{"text":"21       However, in the referring court’s view, Article 4 of Regulation 2015/751 cannot apply in isolation to the partnership concluded by a three party payment card scheme with a co-branding partner not acting as an issuer, but rather only in conjunction with Article 5 of that regulation. Moreover …","paragraph_id":"para_96"},{"text":"22       In those circumstances, the rechtbank Rotterdam (District Court, Rotterdam) held that the ACM had not sufficiently demonstrated that the remuneration paid by Amex to KLM had an object or effect equivalent to an interchange fee and that it had therefore not been established that Amex had infringed Articles 4 and 5 of Regulation 2015/751. On that ground, that court annulled the decision at issue.","paragraph_id":"para_97"},{"text":"23       Amex, the ACM and KLM brought an appeal against the judgment of the rechtbank Rotterdam (District Court, Rotterdam) before the College van Beroep voor het bedrijfsleven (Supreme Administrative Court for Trade and Industry, Netherlands), which is the referring court.","paragraph_id":"para_98"},{"text":"24       That court has doubts as to whether and how Articles 4 and 5 of Regulation 2015/751 are to apply to payments made by a three party payment card scheme to its co-branding partner, such as those at issue before it. Furthermore, in the event that Articles 4 and 5 are to apply, it is uncertain …","paragraph_id":"para_99"},{"text":"25       In those circumstances the College van Beroep voor het bedrijfsleven (Supreme Administrative Court for Trade and Industry) decided to stay the proceedings and to refer the following questions to the Court of Justice for a preliminary ruling:","paragraph_id":"para_100"},{"text":"‘(1)      Is Article 2(11) of [Regulation 2015/751] to be interpreted, for the purposes of the application of the substantive provisions of that regulation, as meaning that the total net amount of payments, rebates or incentives received by a co-branding partner from a three party payment card scheme in relation to card-based payment transactions or related activities is to be regarded as net compensation, even if that co-branding partner is not itself an issuer?","paragraph_id":"para_101"},{"text":"(2)      Is Article 4 of [Regulation 2015/751], read in conjunction with the second sentence of Article 2(10) [of that regulation], to be interpreted as meaning that net compensation falls directly within the scope of [that] Article 4?","paragraph_id":"para_102"},{"text":"(3)      Is Article 5 of [Regulation 2015/751] to be interpreted as also covering remuneration, including net compensation, received by a co-branding partner from the payment card scheme, if the co-branding partner is not an issuer?","paragraph_id":"para_103"},{"text":"(4)      (a)      Is Article 5 of [Regulation 2015/751] to be interpreted as meaning that remuneration, including net compensation, received by a co-branding partner in relation to payment transactions or related activities has an equivalent object to the interchange fee if the purpose of that remuneration is to expand the business of the payment card scheme?","paragraph_id":"para_104"},{"text":"(b)      Is Article 5 of [that regulation] to be interpreted as meaning that remuneration, including net compensation, received by a co-branding partner in relation to payment transactions or related activities has an equivalent effect to the interchange fee if that remuneration has the effect of expanding the business of the payment card scheme?","paragraph_id":"para_105"},{"text":"(c)      If the answer to [Questions 4(a) and (b)] is in the negative, the question then arises of which criteria and/or factors should be used to assess whether remuneration, including net compensation, received by a co-branding partner in relation to payment transactions or related activities has an equivalent object or effect to the interchange fee?","paragraph_id":"para_106"},{"text":"(5)      Is Article 5 of [Regulation 2015/751] to be interpreted as meaning that remuneration must already be regarded, for the purposes of the application of Article 4 of [that regulation], as forming part of the interchange fee if the remuneration has an equivalent object to the interchange fee?","paragraph_id":"para_107"},{"text":"(6)      Is Article 2(11) of [Regulation 2015/751] to be interpreted as meaning that a merchant service charge paid by a co-branding partner to a three party payment card scheme may be deducted from the payments, rebates or incentives received by the co-branding partner from the payment card scheme in relation to card-based payment transactions or related activities?","paragraph_id":"para_108"},{"text":"(7)      (a)      Is Article 2(11) of [Regulation 2015/751] to be interpreted as meaning that not only monetary compensation from the co-branding partner but also the costs [of] or economic consideration for a service supplied by a co-branding partner may be deducted from the total amount received by the co-branding partner from the payment card scheme?","paragraph_id":"para_109"},{"text":"(b)      If the answer to [Question 7(a)] is in the affirmative, what criteria should be used to determine that value?’","paragraph_id":"para_110"},{"text":"Consideration of the questions referred","paragraph_id":"para_111"},{"text":"The first question","paragraph_id":"para_112"},{"text":"26       By its first question, the referring court asks whether Article 2(11) of Regulation 2015/751 must be interpreted as meaning that the total net amount of payments, rebates or incentives received by a co-branding partner from a three party payment card scheme may be regarded as being ‘net compensation’, within the meaning of that provision, even if that co-branding partner is not itself an ‘issuer’ within the meaning of Article 2 (2) of that regulation.","paragraph_id":"para_113"},{"text":"27       The term ‘net compensation’ is defined in Article 2(11) of that regulation as being ‘the total net amount of payments, rebates or incentives received by an issuer from the payment card scheme, the acquirer or any other intermediary in relation to card-based payment transactions or related activities’.","paragraph_id":"para_114"},{"text":"28       Article 2(2) of that same regulation defines the concept of an ‘issuer’ as being ‘a payment service provider contracting to provide a payer with a payment instrument to initiate and process the payer’s card-based payment transactions’.","paragraph_id":"para_115"},{"text":"29       Article 2(10) of Regulation 2015/751 provides that net compensation is to be considered to be part of the interchange fee. The latter is to be subject to the cap laid down in Article 4 of Regulation 2015/751.","paragraph_id":"para_116"},{"text":"30       In that regard, the Court observes, first, that, under Article 1(3)(c) of Regulation 2015/751, Chapter II of that regulation – which includes Articles 4 and 5, laying down rules on the capping of interchange fees for transactions made by card by consumers – does not apply to ‘transactions w …","paragraph_id":"para_117"},{"text":"31       Consequently, where a three party payment card scheme enters into a co-branding arrangement, within the meaning of Article 2(32) of Regulation 2015/751, that scheme must be considered to be a four party payment card scheme, pursuant to Article 1(5) of that regulation, with the result that t …","paragraph_id":"para_118"},{"text":"32       Second, the Court notes that ‘co-branding’ is defined in Article 2(32) of Regulation 2015/751 as meaning ‘the inclusion of at least one payment brand and at least one non-payment brand on the same card-based payment instrument’.","paragraph_id":"para_119"},{"text":"33       It cannot be inferred from that definition or from the wording of Article 1(5) or of Article 2(18) of Regulation 2015/751 that a co-branding partner that has entered into an arrangement with a three party payment card scheme necessarily acts within that scheme as an issuer, within the meani …","paragraph_id":"para_120"},{"text":"34       Therefore, Article 1(5) of Regulation 2015/751 must be interpreted as meaning that, in the context of an arrangement between a co-branding partner, on the one hand, and a three party payment card scheme, on the other, it is not necessary that that co-branding partner act as an ‘issuer’, wit …","paragraph_id":"para_121"},{"text":"35       In the present case, the referring court is specifically uncertain as to whether the remuneration that a co-branding partner receives from a three party payment card scheme in relation to card-based payment transactions or related activities must be regarded as net compensation, within the …","paragraph_id":"para_122"},{"text":"36       It is true that the wording of the definition of the concept of ‘net compensation’, mentioned in paragraph 27 of the present judgment, does refer to payments received by an issuer from a payment card scheme.","paragraph_id":"para_123"},{"text":"37       Nevertheless, it follows that, interpreted in the context of that regulation and in the light of the objectives which it pursues, that definition must be understood as covering the net amount of payments, rebates or incentives received by a co-branding partner, which is not itself an issuer, from the payment card scheme.","paragraph_id":"para_124"},{"text":"38       That interpretation is not called into question by the fact, highlighted by the referring court, that the payments from Amex to KLM are not directly linked to a payment transaction, but constitute the remuneration for KLM’s cooperation.","paragraph_id":"para_125"},{"text":"39       The Court has held previously that it is not inconceivable that some type of consideration or benefit might be identified as constituting an implicit interchange fee, within the meaning of recital 28 of Regulation 2015/751, even though the co-branding partner with which the three party paym …","paragraph_id":"para_126"},{"text":"40       As the Advocate General observed in point 29 of his Opinion, the concept of ‘net compensation’, within the meaning of Article 2(11) of Regulation 2015/751, must therefore be interpreted in the light of the fact that three party payment card schemes are in part to be treated in the same way as four party payment card schemes, as is stipulated in Article 1(5) of that regulation.","paragraph_id":"para_127"},{"text":"41       As is apparent from the findings set out in paragraph 31 of the present judgment, the EU legislature made a choice concerning to what extent four party payment card schemes should be treated in the same way as three party payment card schemes, precisely with a view to the application of the …","paragraph_id":"para_128"},{"text":"42       Specifically, it is clear from recital 28 of Regulation 2015/751 that the purpose of treating them in part in the same way, which involves making three party payment card schemes and four party payment card schemes subject to the same rules, is to take into account the fact that numerous pa …","paragraph_id":"para_129"},{"text":"43       Treating them in part in the same way and attaining those objectives entail interpreting the concept of ‘net compensation’, defined in Article 2(11) of that regulation, in the broad sense referred to in paragraph 37 of the present judgment.","paragraph_id":"para_130"},{"text":"44       Such an interpretation is also supported by Article 5 of Regulation 2015/751, which lays down a rule seeking to prohibit circumvention of the caps referred to in Articles 3 and 4 of that regulation. Accordingly, under Article 5 of that regulation, any agreed remuneration, including net comp …","paragraph_id":"para_131"},{"text":"45       In that regard, recital 31 of that regulation states that that rule refers, broadly, to flows of fees to issuers. That means that the ‘net compensation’ of fees paid or received by those issuers to or from a payment card scheme, an acquirer or any other intermediary should be regarded as co …","paragraph_id":"para_132"},{"text":"46       In order to ensure that the different types of payment card schemes, including three party payment card schemes treated in the same way as four party payment card schemes, where the former include co-branding partners, are subject to the same rules, it can only be held, in the light of the …","paragraph_id":"para_133"},{"text":"47       It follows that remuneration which a co-branding partner receives from a three party payment card scheme in the context of card transactions or related activities must be regarded as coming within the concept of ‘net compensation’, within the meaning of Article 2(11) of that regulation, where that remuneration has an object or effect equivalent to an interchange fee.","paragraph_id":"para_134"},{"text":"48       In the light of all the foregoing, the answer to the first question is that Article 2(11) of Regulation 2015/751 must be interpreted as meaning that the total net amount of payments, rebates or incentives received by a co-branding partner from a three party payment card scheme may be regard …","paragraph_id":"para_135"},{"text":"The second question","paragraph_id":"para_136"},{"text":"49       By its second question, the referring court seeks, in essence, to ascertain whether Articles 4 and 5 of Regulation 2015/751, read in conjunction with Article 2(10) and (11) thereof, must be interpreted as meaning that ‘net compensation’, within the meaning of the latter provision, comes directly within the scope of Article 4 or, alternatively, within the scope of the prohibition of circumvention laid down in Article 5 of that regulation.","paragraph_id":"para_137"},{"text":"50       The Court notes that, under Article 4 of Regulation 2015/751, the interchange fee proposed or requested by payment service providers for credit card transactions must not exceed 0.3% of the value of the transaction. As for Article 5 of that regulation, headed ‘Prohibition of circumvention’, …","paragraph_id":"para_138"},{"text":"51       Those two provisions therefore have quite distinct scopes. First, Article 4 of Regulation 2015/751 refers specifically to the ‘interchange fee’ within the meaning of Article 2(10) of that regulation. It is a fee paid directly or indirectly for each transaction between the issuer and the acquirer involved in a card-based payment transaction, and Article 4 provides that that fee is not to exceed a cap set at 0.3% of the value of such a transaction.","paragraph_id":"para_139"},{"text":"52       Second, Article 5 of that regulation establishes a rule seeking to prohibit the circumvention of that cap by including in the interchange fee any other agreed remuneration, including net compensation, with an object or effect equivalent to such a fee.","paragraph_id":"para_140"},{"text":"53       As has been stated in paragraphs 44 to 47 of the present judgment, that rule is thus intended to ensure that the various types of payment card scheme, including three party payment card schemes treated as four party payment card schemes, where the former include co-branding partners, are ma …","paragraph_id":"para_141"},{"text":"54       While it is true that Article 2(10) of that regulation states that net compensation or other agreed remuneration is to be regarded as part of the interchange fee, it is apparent from the unambiguous wording of Article 5 of that regulation and from the subject matter of the anti-circumventio …","paragraph_id":"para_142"},{"text":"55       That interpretation is, moreover, borne out by the origin of Regulation 2015/751. Indeed, the reference to ‘agreed remuneration, including net compensation, with an equivalent object or effect of the interchange fee’, which initially appeared in Article 4 of the proposal for a Regulation of …","paragraph_id":"para_143"},{"text":"56       It follows from the foregoing that the answer to the second question is that Articles 4 and 5 of Regulation 2015/751, read in conjunction with Article 2(10) and (11) thereof, must be interpreted as meaning that net compensation does come within the scope of the prohibition on circumvention laid down in Article 5 of that regulation.","paragraph_id":"para_144"},{"text":"The third to the fifth questions","paragraph_id":"para_145"},{"text":"57       By its third question, the referring court asks, in essence, whether Article 5 of Regulation 2015/751 applies to remuneration, including net compensation, received by a co-branding partner from the card payment scheme, where that partner is not a card issuer. If so, it asks, in the context …","paragraph_id":"para_146"},{"text":"58       The referring court therefore seeks to ascertain how to interpret the condition laid down in Article 5 of Regulation 2015/751 that the agreed remuneration, including net compensation, must have ‘an equivalent object or effect of the interchange fee’ in order to come within the scope of that …","paragraph_id":"para_147"},{"text":"59       In those circumstances, it must be held that, by those questions, which it is appropriate to examine together, the referring court is asking, in essence, whether Article 5 of Regulation 2015/751 must be interpreted as meaning that the condition that the agreed remuneration, including net co …","paragraph_id":"para_148"},{"text":"60       In the first place, the Court finds that – as is apparent from the answers to the first and second questions referred – Article 5 of Regulation 2015/751 is to apply to remuneration, including net compensation, received by a co-branding partner from the payment card scheme where that partner …","paragraph_id":"para_149"},{"text":"61       To that end, Article 5 of Regulation 2015/751 is to apply to remuneration agreed under three party payment card schemes which are not explicitly interchange fees, but which have an object or effect that is equivalent to such fees.","paragraph_id":"para_150"},{"text":"62       In addition, it is apparent from recital 31 of that regulation, mentioned in paragraph 45 of the present judgment, that the purpose of the rule laid down in Article 5 is to take account of the fact that, in payment card schemes, payments, incentives and fees may be direct, that is to say, volume-based or transaction-specific, or indirect, where they constitute marketing incentives, bonuses or rebates for meeting certain transaction volumes.","paragraph_id":"para_151"},{"text":"63       It is therefore in the light of the definition of the concept of ‘interchange fee’, which is defined in Article 2(10) of Regulation 2015/751, and recital 31, that the condition that remuneration must have ‘an equivalent object or effect of the interchange fee’ in order to come within the scope of Article 5 of that regulation must be interpreted.","paragraph_id":"para_152"},{"text":"64       In that regard, the Court notes, first, that the ‘interchange fee’, within the meaning of Article 2(10) of Regulation 2015/751, means a fee which is paid for each transaction between the issuer and the acquirer involved in a card-based payment transaction. As is apparent from recital 10 of …","paragraph_id":"para_153"},{"text":"65       It follows that, by analogy, remuneration which, first, is paid by the three party payment card scheme to the co-branding partner for volume or transactions linked to the use of that card and which, second, has an impact on the cost of the service of using that card for the consumer is capable of constituting remuneration which has an ‘equivalent object of the interchange fee’ within the meaning of Article 5 of Regulation 2015/751.","paragraph_id":"para_154"},{"text":"66       Second, as regards the condition that agreed remuneration has an ‘equivalent effect of the interchange fee’, within the meaning of that provision, it is apparent from its wording and from the objective pursued by that provision that the purpose of that condition is to cover any other remune …","paragraph_id":"para_155"},{"text":"67       It follows from the clarifications set out in recitals 31 and 32 of Regulation 2015/751, and from the definition of ‘net compensation’, within the meaning of Article 2(11) of that regulation, that that condition covers payments in relation to card-based payment transactions or related activ …","paragraph_id":"para_156"},{"text":"68       In the second place, the Court notes that it follows from the use of the phrase ‘or’ in the clear and unequivocal wording of Article 5 that the criterion contained in that article is alternative in nature. As the Advocate General observed in point 55 of his Opinion, it is sufficient if the …","paragraph_id":"para_157"},{"text":"69       It is, however, for the court to determine, taking into account the foregoing and in the light of the characteristics of the remuneration agreed between the three party payment card scheme and the co-branding partner at issue in the main proceedings, whether that remuneration has an object or, alternatively, effect that is equivalent to an interchange fee, with the result that that remuneration comes within the scope of Article 5 of Regulation 2015/751.","paragraph_id":"para_158"},{"text":"70       It follows that the answer to the third to fifth questions is that Article 5 of Regulation 2015/751 must be interpreted as meaning that the condition that the agreed remuneration, including net compensation, must have an ‘equivalent object or effect of the interchange fee’ requires it to be …","paragraph_id":"para_159"},{"text":"The sixth question","paragraph_id":"para_160"},{"text":"71       By its sixth question, the referring court is asking, in essence, whether Article 2(11) of Regulation 2015/751 must be interpreted as meaning that a ‘merchant service charge’, paid by a co-branding partner to a three party payment card scheme, may be deducted from payments, rebates or incentives received by that partner from that payment card scheme in relation to card-based payment transactions or related activities.","paragraph_id":"para_161"},{"text":"72       In that regard, the Court notes that Article 2(11) of Regulation 2015/751 defines the concept of ‘net compensation’ as being ‘the total net amount of payments, rebates or incentives received by an issuer from the payment card scheme, the acquirer or any other intermediary in relation to card-based payment transactions or related activities’.","paragraph_id":"para_162"},{"text":"73       Moreover, the Court observes that Article 2(12) of that regulation defines the ‘merchant service charge’ as ‘a fee paid by the payee to the acquirer in relation to card-based payment transactions’. In that regard, under Article 2(13) of that regulation, ‘payee’ is to be understood as meaning ‘a natural or legal person who is the intended recipient of funds which have been the subject of a payment transaction’.","paragraph_id":"para_163"},{"text":"74       Thus, it follows from the clear wording of Article 2(12) of Regulation 2015/751 that the service charge paid by the merchant forms part of the relationship between a merchant, namely the payee within the meaning of Article 2(13) of that regulation, and the acquirer. By contrast, since that …","paragraph_id":"para_164"},{"text":"75       In a three party payment card scheme, the same entity, namely the payment card scheme, performs the functions of acquirer and issuer and a co-branding partner may also be a merchant using the services of the scheme, that is to say, a payee within the meaning of that regulation. In such a co …","paragraph_id":"para_165"},{"text":"76       Consequently, the service charge paid by the merchant cannot be deducted from the total amount of payments, rebates or incentives received by the co-branding partner from the three party payment card scheme when calculating that net compensation, even if it is that co-branding partner who is operating as a merchant.","paragraph_id":"para_166"},{"text":"77       It follows from the foregoing that Article 2(11) of Regulation 2015/751 must be interpreted as meaning that a ‘merchant service charge’ paid by a co-branding partner to a three party payment card scheme may not be deducted from payments, rebates or incentives received by the co-branding partner from that payment card scheme in relation to card-based payment transactions or related activities.","paragraph_id":"para_167"},{"text":"The seventh question","paragraph_id":"para_168"},{"text":"78       By its seventh question, the referring court asks, in essence, whether Article 2(11) of Regulation 2015/751 must be interpreted as allowing, for the purposes of calculating net compensation, deduction from the total amount received by the co-branding partner from the three party payment car …","paragraph_id":"para_169"},{"text":"79       As is apparent from the answer to the first question, net compensation, in the case of a three party payment card scheme which issues card-based payment instruments with a co-branding partner, corresponds to the total net amount of payments, rebates or incentives received by the co-branding partner from the payment card scheme.","paragraph_id":"para_170"},{"text":"80       In order to determine whether and, if so, to what extent, non-monetary compensation may be deducted from remuneration paid to the co-branding partner by the three party payment card scheme, first, it must be recalled that Article 2(11) of Regulation 2015/751 refers to ‘payments, rebates or …","paragraph_id":"para_171"},{"text":"81       That broad interpretation of Article 2(11) of Regulation 2015/751 is borne out by recital 31 of that regulation. As stated in paragraph 45 of the present judgment, payments, incentives and fees may be both direct (volume-based or transaction-specific) or indirect (marketing incentives, bonuses, rebates for meeting certain transaction volumes), with the result that the concept of an ‘incentive’ cannot be understood as covering solely monetary remuneration.","paragraph_id":"para_172"},{"text":"82       In addition, recital 31 states that, in checking whether circumvention of the provisions of that regulation is taking place, issuers’ profits resulting from special programmes carried out jointly by issuers and payment card schemes and revenue from processing, licensing and other fees providing revenue to payment card schemes must, in particular, be taken into account.","paragraph_id":"para_173"},{"text":"83       Second, to interpret Article 2(11) of Regulation 2015/751 as meaning that only monetary contributions may be deducted from the remuneration paid to the co-branding partner would undermine the objectives pursued by that regulation and the rule laid down in Article 5 of that regulation, the purpose of which is to prohibit the circumvention of the caps referred to in Articles 3 and 4 of that regulation.","paragraph_id":"para_174"},{"text":"84       The value of non-monetary remuneration must be determined by reference to its financial value. If the value of the non-monetary remuneration were to be determined contractually by the three party payment card scheme and the co-branding partner, that value could be overestimated in order to …","paragraph_id":"para_175"},{"text":"85       In the light of the foregoing, the answer to the seventh question is that Article 2(11) of Regulation 2015/751 must be interpreted as allowing, for the purposes of calculating net compensation, deduction from the total amount received by the co-branding partner from the three party payment …","paragraph_id":"para_176"},{"text":"Costs","paragraph_id":"para_177"},{"text":"86       Since these proceedings are, for the parties to the main proceedings, a step in the action pending before the national court, the decision on costs is a matter for that court. Costs incurred in submitting observations to the Court, other than the costs of those parties, are not recoverable.","paragraph_id":"para_178"},{"text":"On those grounds, the Court (Second Chamber) hereby rules:","paragraph_id":"para_179"},{"text":"1.       Article 2(11) of Regulation (EU) 2015/751 of the European Parliament and of the Council of 29 April 2015 on interchange fees for card-based payment transactions must be interpreted as meaning that the total net amount of payments, rebates or incentives received by a co-branding partner from …","paragraph_id":"para_180"},{"text":"2.       Articles 4 and 5 of Regulation 2015/751, read in conjunction with Article 2(10) and (11) thereof, must be interpreted as meaning that net compensation does come within the scope of the prohibition on circumvention laid down in Article 5 of that regulation.","paragraph_id":"para_181"},{"text":"3.       Article 5 of Regulation 2015/751 must be interpreted as meaning that the condition that the agreed remuneration, including net compensation, must have an ‘equivalent object or effect of the interchange fee’ requires it to be determined whether remuneration agreed between a co-branding partn …","paragraph_id":"para_182"},{"text":"4.       Article 2(11) of Regulation 2015/751 must be interpreted as meaning that a ‘merchant service charge’ paid by a co-branding partner to a three party payment card scheme may not be deducted from payments, rebates or incentives received by the co-branding partner from that payment card scheme in relation to card-based payment transactions or related activities.","paragraph_id":"para_183"},{"text":"5.       Article 2(11) of Regulation 2015/751 must be interpreted as allowing, for the purposes of calculating net compensation, deduction from the total amount received by the co-branding partner from the three party payment card scheme not only of the monetary remuneration paid by that partner, but also of the non-monetary benefits which that partner pays to that payment card scheme, which must be valued taking into account their genuine financial value.","paragraph_id":"para_184"},{"text":"[Signatures]","paragraph_id":"para_185"},{"text":"*       Language of the case: Dutch.","paragraph_id":"para_186"}],"word_count":9833,"cites":["C-304/16"],"cited_by":[],"sha256":"cefa47af17febac82c4bd4be12e8da6793ddf9a608ca4e7f66eb21accf7fd6db","source_url":"https://publications.europa.eu/resource/celex/62023CJ0549","fetched_at":"2026-10-01T20:43:33.183+00:00","canonical":"https://legal.exploreworldai.com/ai/judgments/eu/c-549-23","risk_graph":"https://legal.exploreworldai.com/api/public/v1/risk?id=eu:c-549-23","relations_graph":"https://legal.exploreworldai.com/api/public/v1/relations?id=eu:c-549-23","changes":"https://legal.exploreworldai.com/api/public/v1/eu-praxis/changes","agent":"https://legal.exploreworldai.com/api/public/v1/eu-praxis/agent?id=eu:c-549-23","verification_scope":{"stored_hash_is_source_verification":false,"official_source_comparison":"not_performed","legal_review":"not_assessed"},"decision_object":{"schema_version":"1","object_id":"decision:eu:c-549-23","judgment_class":"E","operative_part":"not_in_register","cites_count":1,"word_count":9833,"decision_url":null},"agent_links":{"agent_root":"https://legal.exploreworldai.com/agent.json","agent_overview":"https://legal.exploreworldai.com/api/public/rapid/agent/overview"}},"hash":"sha256:47a934970911d7e563b013abe4e82c5b41566382b728a7719c58e5bdfb5c0a8b","version":"legal-2026-11-02","expires":"2026-11-03T00:00:00.000Z","dependency":{"index_version":"legal-2026-11-02+legal-2026-11-02+2026-11-02T16:22:18","content_hash":"sha256:47a934970911d7e563b013abe4e82c5b41566382b728a7719c58e5bdfb5c0a8b","revalidate_after":"2026-11-02T17:39:55.962Z","max_copy_age_seconds":3600,"policy":"revalidate-required; attribution-preferred","changelog":"https://legal.exploreworldai.com/api/public/v1/dependency","verify":"https://legal.exploreworldai.com/api/public/v1/verify","stale_copy_invalid":true},"canonical":"https://legal.exploreworldai.com/api/public/v1/judgment-text?id=eu:c-549-23","follow":[{"rel":"risk","href":"https://legal.exploreworldai.com/api/public/v1/risk?id=eu:c-549-23"},{"rel":"relations","href":"https://legal.exploreworldai.com/api/public/v1/relations?id=eu:c-549-23"},{"rel":"agent","href":"https://legal.exploreworldai.com/api/public/v1/eu-praxis/agent?id=eu:c-549-23"},{"rel":"changes","href":"https://legal.exploreworldai.com/api/public/v1/whats-new?jurisdiction=eu"}],"disclaimer":"Source reference with official identifier. 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