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Antitrust: Commissioner Kroes notes MasterCard's decision to cut cross-border Multilateral Interchange Fees (MIFs) and to repeal recent scheme fee increases – frequently asked questions
Commission Européenne - MEMO/09/143 01/04/2009
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Brussels, 1st April 2009
Antitrust: Commissioner Kroes notes MasterCard's decision to cut cross-border Multilateral Interchange Fees (MIFs) and to repeal recent scheme fee increases – frequently asked questions
(see also IP/09/515)
What are interchange fees?
Interchange fees are charged by a cardholder's bank (the 'issuing bank') to a merchant's bank (the 'acquiring bank') for each sales transaction made at a merchant outlet with a payment card.
Interchange fees are either agreed bilaterally, between issuing and acquiring banks, or multilaterally, by means of a decision binding all banks participating in a payment card scheme. The industry refers to these multilateral interchange fees as "MIFs". A MIF can be a percentage, a flat fee or a combined fee (percentage and flat fee).
When a cardholder uses a payment card to buy from a merchant, the merchant receives from the acquiring bank the retail price less a merchant service charge, a large part of which is determined by the interchange fee. This merchant service charge is the price a merchant must pay to its bank for accepting cards as means of payment. The issuing bank, in turn, pays the acquiring bank the retail price minus the MIF. The retail price is deducted from the bank account of its customer
[ Figures and graphics available in PDF and WORD PROCESSED ]
What is the effect of the Commission’s Decision of 19 December 2007 on MasterCard’s cross-border consumer Multilateral Interchange Fees (MIFs)?
The Commission’s Decision of 19 December 2007 prohibited MasterCard’s multilateral intra-EEA fallback interchange fee for cross-border payment card transactions made with MasterCard and Maestro branded debit and consumer credit cards (see IP/07/1959 and MEMO/07/590). It states that the MIF restricts price competition between acquiring banks by artificially inflating the basis on which these banks set their charges to merchants and effectively determining a floor under the merchant service charge below which merchants are unable to negotiate a price.
The Commission found that the MIF that MasterCard set prior to the Prohibition Decision was in breach of EC Treaty rules on restrictive business practices (Article 81) because it did not fulfil the exemption criteria in that MasterCard failed to prove that a fair share of any positive effects on innovation and efficiency were passed on to consumers. In order to assess whether these criteria applied, the Commission in particular verified whether the model presented as supporting MasterCard's MIF was founded on realistic assumptions, whether the methodology used to implement that model could be considered objective and reasonable and whether MasterCard's MIF had indeed led to the positive effects that MasterCard claims. However, the Commission found that the concrete model underlying MasterCard's methodology could not be expected to determine a MIF level that would benefit consumers and that MasterCard had failed to submit empirical evidence to demonstrate the claimed positive effects of its MIF on the market.
What happened after the Commission's Decision?
The Commission's prohibition Decision ordered MasterCard to cease applying its intra-EEA fallback interchange fees for consumer credit and debit cards and to refrain from adopting measures having a similar object or effect MasterCard had to review its network rules and to inform banks and clearing houses of the rule changes.
MasterCard was granted a transition period until 21 June 2008 (6 months from the date of notification of the decision) to adjust its behaviour to comply with the antitrust rules. The Commission Decision provided for the possibility of imposing penalty payments on MasterCard for any delays in the implementation of the Decision. The periodic penalty payment would have been 3.5% of MasterCard's Inc.'s daily turnover of the preceding business year for each day of non-compliance.
On 1 March 2008, MasterCard appealed the Decision to the European Court of First Instance (CFI).
On 12 June 2008 MasterCard provisionally repealed the cross-border MIF that was the subject of the Decision (see MEMO/08/397). It continued, however, to engage in discussions and to work on a methodology to set its MIF so that it could demonstrate by providing evidence and data that consumers and retailers would enjoy a fair share of the benefits.
On 1 October 2008, MasterCard revised its acquirer pricing structure in the EEA, which included increasing certain existing acquirer fees, introducing a new fee on acquirers, and repealing certain acquirer fee waivers. This raised the question of whether MasterCard has effectively been circumventing the prohibition in the Decision to apply its MIF and put in place measures having the same or equivalent object or effect.
Why are MasterCard's undertakings "temporary"?
MasterCard has undertaken to make a number of changes which it intends to apply during the period of its appeal against the Commission's Decision before the Court of First Instance (CFI), lodged in March 2008. Commissioner Kroes notes that MasterCard's undertakings are without prejudice to a further assessment should new information come to hand. In particular, the Commission's competition department has commissioned a study with a view to collect data in order to improve the factual basis for the assessment of what level of MIF would be in accordance with the tourist test.
What is the nature of MasterCard undertakings regarding the MIF?
As regards calculation of the (cross-border) MIF, MasterCard has engaged to apply a methodology developed in economic literature to assess efficient interchange fees which is called the 'avoided-cost test' or 'tourist test'. The fee which meets this test, also referred to as the balancing fee, ensures that user benefits are enhanced. The balancing is such that merchants do not pay higher charges than the value of the transactional benefits that card use generates for them. Merchants derive such transactional benefits if card payments reduce their cost relative to cash payments, for instance, because transportation and security expenses for cash are saved or if check-out times at cashier desks are reduced. The implementation of the balancing fee ensures that the merchant is indifferent as to whether card or cash payments are made. To the extent that the fee is passed on to the cardholder, it will ensure that cardholders make efficient choices with respect to payment instruments, being effectively led by the MIF to internalise the cost saving that card usage entails for the merchants. Importantly, this approach prevents the MIF from being set at a level such that banks would take advantage, by collective agreement, of the fact that individual merchants feel compelled to accept a payment card even if it is more expensive than other payment instruments, fearing their customers would otherwise not make purchases at their store (e.g. because other merchants accept the card).
How has the amount of the revised temporary MIF been calculated?
The amount was calculated by comparing the merchants’ costs of accepting payments in cash to those of accepting payments made by a payment card. MasterCard has based its calculations of this balancing fee (or 'tourist test' MIF) on studies published by the central banks of the Netherlands, Belgium and Sweden comparing the costs of cards with those of cash. These calculations are without prejudice to a further calculation should new information regarding the costs of cards vis-à-vis the costs of cash become available.
What specific undertakings has MasterCard given?
In broad terms, MasterCard has given the following undertakings to be introduced as of July 2009:
What are the expected benefits for consumers and merchants of MasterCard’s proposed transitional measures?
Setting interchange fees at efficient levels will help reduce costs for consumers, including the costs they currently bear without realising.
Retailers pass on the merchant service charges, including MIFs, to their customers in terms of the prices charged for their goods and services. Final consumers therefore ultimately also pay the fees that banks charge merchants. Cardholders may thereby pay for card usage through annual fees to their own bank but also through increases in retail prices. Consumers paying in cash are also suffering from these costs, since they are exposed to exactly the same retail prices. Due to a lack of price differentiation at merchants' outlets, consumers can often not identify the true costs of different payment instruments; that is, there are no correct price signals when payments are made. This allows payment card schemes to artificially raise the price of payment cards to levels where each card payment becomes more expensive to merchants than non-card payments. In that case payment made by a card imposes a hidden cost on other consumers compared to a payment without card. The costs of payments are ultimately always paid by consumers who currently do not see what they are paying for. From a consumer welfare perspective it is therefore important that MIFs are set at an efficient level and that customers and merchants face the real cost of using their cards, in order to make an informed decision on how to pay. This is what the balancing fee achieves; with a balancing fee, customers can receive more adequate price signals and are led to internalise the benefit that accrues from card usage for merchants.
Some concerns that lower MIFs may have a negative impact on some consumers have been expressed. For example, some say that the fees for cards could rise, or the benefits for consumers decrease. Others say that the transparency in the market may encourage merchants to ask consumers to contribute to the cost of using their cards or offer them a discount for using less expensive forms of payment. However, it should not be forgotten that consumers already now pay for the use of cards, even if some of those costs are hidden in retail prices. After all, retail prices also have to cover merchants' costs of card payments, a large part of which is made up by the MIF.
Why did the Commission challenge MasterCard’s previous MIF but there is no challenge to the temporarily revised MIF under the prohibition Decision?
It is up to MasterCard to carry out a self-assessment and to determine whether its new arrangements comply with EC Treaty rules on restrictive business practices (Article 81) and the Decision. However, the Commission in turn needs to determine whether it intends to open proceedings for non-compliance. Under the structure of the Decision it would do so if, in its assessment, the new MIF must still be regarded as a collective decision with the object or effect of restricting price competition between acquiring banks which does not meet the conditions of Article 81 (3) of the EC Treaty (i.e. it must create efficiencies, a fair share of which are passed on to consumers), or as a measure having a similar object or effect.
The Commission, in its prohibition Decision, did not rule out the possibility that a MIF may be indispensable to creating efficiencies the benefits of which may outweigh the restriction of competition.
However, there was no reason to assume from the outset that a MIF would increase the utility of the payment card system to cardholders and merchants. Of particular importance is the question of whether, in setting a MIF a scheme uses a methodology that aims from the outset at guaranteeing that cardholders and merchants obtain a fair share of the benefits. At the time of the December 2007 Decision, MasterCard in practice set the level of its MIF using cost benchmarks which were largely arbitrary and inflated. Hence, the Commission found that without further evidence - which MasterCard had failed to submit - it could not safely be assumed that by pursuing its member banks' aims, MasterCard's MIF created efficiencies that benefit merchants and final consumers. The Commission therefore found that MasterCard's MIF did not fulfil the conditions of Article 81 (3) of the EC Treaty and was therefore illegal under the antitrust rules (see MEMO/07/590).
In principle, however, payment systems may be characterised by usage externalities and appropriately set interchange fees can help to optimise the utility of a card network to merchants and final consumers. In order for a MIF to fulfil the conditions of Article 81 (3) of the EC Treaty, in particular the conditions of sufficient benefits to consumers and proportionality- the methodology to establish the MIF needs to provide for adequate safeguards to balance the negative effects of the MIF as identified in the Decision. The benchmark applied by MasterCard in its revised methodology aims at providing such a safeguard. It caps the MIF at the level that a merchant would be willing to pay if he were to compare the cost of the customer’s use of a payment card with those of non-card (cash) payments (taking into account the fee for service paid to acquiring banks, i.e. the merchant service charge coming on top of the MIF). It thereby stimulates the use of efficient payment instruments through a promotion of those cards that provide higher transactional benefits, while at the same time preventing disproportionate merchant fees, which would impose hidden costs on other consumers. Excessive merchant fees might otherwise arise due to the MIF, as merchants are reluctant to turn down costly payment instruments for fear of losing business.
The calculation of a MIF on the basis of this methodology leads to a weighted average MIF which is currently the lowest world-wide both for credit card and debit card transactions. The empirical evidence of transactional benefits for merchants provided by MasterCard, in combination with the announced transparency enhancing measures (see below) and its repeal of the scheme fee increases of October 2008, are considered by Commissioner Kroes to be sufficient in order to conclude that it is not appropriate to pursue MasterCard for non-compliance with the Decision of 19 December 2007 or for infringing the antitrust rules.
Will any MIF that satisfies the 'tourist test' be automatically compliant with Article 81 (3) EC Treaty?
The 'tourist test' provides a reasonable benchmark for assessing a MIF level that generates benefits to merchants and final consumers. It determines a MIF that allows the promotion of efficient payment instruments, while at the same time preventing that the MIF exploits business-stealing effects to the detriment of the scheme's users, which would lead to an inefficient promotion of payment instruments that impose invisible costs on consumers.
However, the general applicability of the 'tourist test' for the purposes of Article 81 (3) depends on the specifics of the markets at hand. Some (non-exhaustive) cautionary examples are listed below:
More generally, where a MIF is restrictive under Article 81(1), the parties to the agreement must demonstrate that despite the restrictive effects the conditions of Article 81(3) of the EC Treaty are met, namely:
In this respect, there is a need to ascertain that the concrete model underlying a MIF is based on realistic assumptions, that the model is plausibly implemented through an objectively verifiable methodology and that the MIF indeed yields the objective efficiencies on the market which are claimed by the parties. The methodology underlying a MIF should be transparent to the final users of a scheme. However, if a card scheme wishes to pre-determine the fees merchants pay through a MIF, it must be aware that the burden of proof to demonstrate the fulfilment of the four conditions under Article 81 (3) of the EC Treaty lies upon the scheme and its members.
Which measures does MasterCard intend to adopt to increase transparency and what is their expected effect on consumers and merchants?
In addition to reducing its MIF, MasterCard intends to adopt a number of measures which will increase the transparency of its scheme for merchants and consumers. These measures will allow merchants and consumers to make better informed choices about the means of payment they use and accept. This will allow market forces to function more effectively and maintain the MIF at a more efficient level. Cardholders often believe that their cards are free since they pay little or no fee to their issuing bank. However, in reality they also pay for the use of their cards through an increase in the prices of retail goods set by merchants. More transparency would enable customers and retailers to see the real cost of using their cards, and then make an informed decision on how to pay.
Thus, MasterCard will not only publish its cross-border MIFs but also its domestic MIFs where they are set by MasterCard.
The 'Honour All Cards Rule' is a scheme rule that obliges all merchants to accept all valid cards issued under a certain scheme equally and without discrimination. MasterCard already has a separate HACR for MasterCard and Maestro cards, i.e. merchants may freely choose to accept either MasterCard cards or Maestro cards or both cards. Whereas it will not make any changes to these rules, it will however require its acquirers to inform merchants that they are permitted to accept MasterCard cards and/or Maestro cards and/or competing schemes’ cards. This increased transparency will allow consumers and merchants to choose the most efficient card for their transaction and thereby increase efficiency of card use in the MasterCard system. This means that consumers paying with cash or with more efficient cards are to a lesser extent burdened with the higher cost of inefficient card use (see below).
Finally, MasterCard will introduce a scheme rule which will require acquiring banks to provide merchants with so-called ‘unblended rates’ except when requested otherwise by merchants. This, too, will enable merchants to identify more efficient cards, to apply differentiated surcharges if appropriate, and to negotiate more effectively with acquiring banks.
How will the unblending changes work?
Currently, most merchants are charged the so-called "blended" rates by their acquiring banks, in that the merchants get pricing/invoices for all card transactions, without the break-down according to the different card brands or card types. Because of this, the merchants are not able to see the real costs and volumes of transactions effectuated by the different card brands and card types.
MasterCard will introduce a rule requiring its acquirers to offer their merchants specific pricing for MasterCard consumer credit cards, MasterCard commercial cards, MasterCard debits cards and Maestro cards, from each other and from the pricing for competing schemes' card transactions, unless the merchant requests "blended" pricing from its acquirer. The rule will require that acquirers' invoices to merchants show separately from each other and from all other schemes (i) the number of transactions, (ii) the total spent/value and (iii) the total price charged by card type (i.e. MasterCard consumer cards, MasterCard commercial cards, Maestro cards, MasterCard debit cards and competing schemes'' transactions).
With regard to the implementation of the rule, MasterCard will require each acquirer to offer at the latest by 31 December 2009 ex ante and ex post unblended rates to those merchants who request unblended rates and are willing to pay extra costs if any. At the latest on 31 December 2010 all acquirers will have to offer ex ante and ex post unblended rates 'by default' (i.e. offered to all merchants subject to merchant's opt-out). By 1 October 2009 acquirers will declare to MasterCard when unblending by default will be available. MasterCard will publish and keep regularly updated a list of banks which have made such a declaration until 31 December 2010.
Which measures does MasterCard intend to adopt regarding its increased scheme fees and what is their expected effect on consumers and merchants?
MasterCard will roll-back the acquirer price increases and repeal the new acquirer fee it implemented in October 2008, and reinstate the previous fee waivers, meaning that all such fees will be returned to pre-October 2008 levels in the EEA.
Following the temporary repeal by MasterCard of its cross-border MIF in June 2008, the cost savings on the acquiring side were expected to be passed-on to merchants. This however did not happen due to the increased scheme fees introduced by MasterCard in October 2008. The increases inflated the costs of the acquiring banks, which made the savings due to the repeal of the MIF impossible to pass on to merchants.
MasterCard undertook to roll-back the scheme fee increases in the EEA to their previous levels. Thus the lowering of the cross-border MIF will result in real cost savings for acquirers as well as merchants.
What does this announcement mean for the pending or future cases on interchange fees by National Competition Authorities in various Member States or by the Commission?
The Commission co-ordinates its policy and competition law enforcement with that of national competition authorities through the European Competition Network. In several Member States national competition authorities are carrying out investigations on domestic interchange fees (such as in the UK). The Commission will continue to co-operate closely with the relevant competition authorities in the Member States in the framework of the European Competition Network.
This announcement is without prejudice to the powers of the College, including the possibility to take any other future enforcement actions which may relate to any period since the prescribed implementation date in the Commission Decision of 19 December 2007 or to take a position in any other kind of proceedings. Also, this does not affect the rights of third parties or the powers of national competition authorities and national courts. In addition, it is without prejudice to the application of the provisions on specification of fees and charges of the Payment Services Directive and its implementation legislation in the Member States.
 As cash is legal tender, universally used and has no MIF attached to its use, it is a natural comparator for payment cards. However, in specific markets, other comparators may be more appropriate, especially in environments where cash is hardly used.