Interchange fees form part of the costs merchants incur when accepting card payments and may ultimately affect the prices paid by consumers. Regulation (EU) 2015/751 on interchange fees for card-based payment transactions (Regulation) seeks, among other things, to improve the functioning of the internal market and reduce transaction costs for consumers by imposing caps on certain interchange fees and preventing those caps from being circumvented through alternative remuneration arrangements.

In American Express Europe SA and Others v Autoriteit Consument en Markt (Case C-549/23), decided on 16 April 2026, the Court of Justice of the European Union (CJEU) examined whether payments, rebates and incentives received by a co-branding partner from a three-party payment card scheme may constitute "net compensation" under Article 2(11) and fall within Article 5's prohibition on circumventing interchange-fee caps. The judgment clarifies how these provisions apply when a co-branding partner is not itself a card issuer and how the relevant remuneration should be calculated.

Facts of the case

The case concerned a co-branding partnership between American Express Europe SA and American Express Carte France SA (Amex), which operates a three-party payment card scheme, and Koninklijke Luchtvaart Maatschappij NV (KLM), the flag carrier of the Netherlands. In 2010, the parties entered into an agreement scheduled to commence on 1 June 2011 and end on 1 June 2019. The arrangement involved co-branded credit cards linked to KLM's Flying Blue loyalty programme, allowing cardholders to earn loyalty points (or "miles") while travelling on KLM flights or making purchases from KLM's partners.

Throughout the cooperation, Amex paid KLM a signing bonus and four other forms of remuneration: an annual fee for the use of KLM's commercial brands and access to the Flying Blue programme; a percentage of the remuneration received by Amex from cardholders for use of the card; a percentage of the value of purchases made with the card; and remuneration for the purchase of miles.

Following an investigation, the Netherlands Authority for Consumers and Markets (ACM) issued an administrative direction against Amex on 6 March 2019 for alleged infringement of Article 4, read in conjunction with Article 5 of the Regulation. Article 4 limits interchange fees to 0.3% of the value of each credit card transaction. The ACM calculated the remuneration paid to KLM over a four-year period and concluded that it substantially exceeded the applicable cap.

In 22 January 2020, the ACM rejected Amex and KLM's objections, maintaining that remuneration paid by a three-party scheme to a co-branding partner could constitute net compensation and that Amex could not deduct the consideration paid for the miles purchased from KLM. By a further decision of 21 December 2020, the ACM sought to recover EUR 10 million from Amex as a penalty for alleged non-compliance with the administrative direction.

However, the Rotterdam District Court annulled the contested decision, finding that the ACM had not sufficiently demonstrated that the remuneration had an object or effect equivalent to an interchange fee and that an infringement had therefore not been established. The matter was subsequently brought before the Netherlands' Supreme Administrative Court for Trade and Industry, which referred seven questions to the CJEU for a preliminary ruling.

The first and second questions

The Court first examined the meaning of "net compensation" under Article 2(11), which refers to the total net amount of payments, rebates or incentives received by an issuer in relation to card-based payment transactions or related activities. Although the provision expressly refers to an issuer, the Court interpreted it in the context of the Regulation as a whole.

Under Article 1(5), a three-party payment card scheme that issues card-based payment instruments with a co-branding partner is treated as a four-party scheme. Consequently, the relevant provisions governing interchange fees, including Articles 3 to 5, apply to that scheme. The co-branding partner does not itself need to qualify as an issuer for this classification to apply.

The CJEU emphasised that the Regulation seeks to establish a level playing field between payment card schemes and reduce transaction costs for consumers. Excluding remuneration merely because it is received by a co-branding partner rather than an issuer could undermine those objectives by allowing implicit interchange fees to escape regulation.

Accordingly, the net amount of payments, rebates or incentives received by a co-branding partner may constitute net compensation even where that partner is not an issuer, provided that the remuneration has an object or effect equivalent to an interchange fee.

The CJEU then distinguished between Articles 4 and 5 of the Regulation. Article 4 establishes the cap on interchange fees, while Article 5 prevents that cap from being circumvented through other remuneration having an equivalent object or effect. Net compensation therefore falls within Article 5's anti-circumvention rule and is treated as part of the interchange fee for the purpose of applying the cap, where the required equivalence is established. It does not automatically fall within Article 4 merely because it qualifies as net compensation under Article 2(11).

The third to fifth questions

The CJEU then explained that determining whether remuneration has an object or effect equivalent to an interchange fee requires an assessment of its incentive object or effect on consumers' use of the relevant cards.

Remuneration is capable of having an object equivalent to an interchange fee where it is paid by a three-party scheme to its co-branding partner for volumes or transactions linked to use of the card and has an impact on the cost to the consumer of using that card. Remuneration not directly based on transaction volumes or card transactions may nevertheless have an equivalent effect where, in connection with card-based payment transactions or related activities, it funds practices incentivising use of the card, such as commercial incentives, bonuses or rebates affecting the cost of card use for the consumer.

Importantly, Article 5 uses the word "or". It is therefore sufficient for the remuneration to have either an equivalent object or an equivalent effect; both conditions need not be satisfied. The national court must then determine whether this requirement is met, taking account of the characteristics of the remuneration and its impact on consumers' incentives to use the cards.

The sixth and seventh questions

The Court next considered which amounts could be deducted when calculating net compensation. It held that a merchant service charge paid by the co-branding partner cannot be deducted when calculating net compensation. That charge is paid by the co-branding partner in its separate capacity as a payee or merchant, rather than in its capacity as co-branding partner, and therefore does not form part of the relevant co-branding relationship.

By contrast, the CJEU held that when calculating net compensation, account may be taken of both monetary consideration paid and non-monetary benefits provided by the co-branding partner to the payment-card scheme. The concept of an "incentive" under Article 2(11) is not confined to monetary payments. Excluding non-monetary benefits from the calculation would risk undermining Article 5's prohibition on circumvention.

However, non-monetary benefits must be valued according to their genuine financial value. Allowing the parties to determine that value solely by contract could result in overvaluation, artificially reducing the remuneration considered for the purposes of the interchange-fee cap. It is then up to the referring court to assess the value in light of all relevant circumstances, including the genuine financial value of a service where it is available for purchase by others at a publicly stated price.

Outcome of the judgment

The CJEU held that remuneration received by a co-branding partner that is not itself an issuer may constitute net compensation where it has an object or effect equivalent to an interchange fee. Where the remuneration has the required equivalent object or effect, it falls within Article 5 and must be treated as part of the interchange fee when the applicable cap is assessed.

The CJEU further clarified that equivalence depends on whether the remuneration has an incentive object or effect equivalent to an interchange fee, having regard to its impact on consumers' use of the relevant cards. Merchant service charges paid by the co-branding partner cannot be deducted from net compensation, and in calculating the net amount, monetary consideration paid and non-monetary benefits supplied by the co-branding partner to the payment-card scheme may be deducted, with non-monetary benefits valued according to their genuine financial value.

The judgment does not establish that Amex infringed the Regulation. It instead provides the interpretation of EU law that the referring court must apply when assessing the remuneration at issue. Since the preliminary-ruling proceedings are a step in the proceedings before the national court, costs in the main proceedings are a matter for that court.

Disclaimer: This law report has been compiled by Ganado Advocates, who were not in any way involved as legal advisor for the parties in the judgement being covered in this law report. This report is for informational purposes only and does not contain or convey legal advice. The information contained in this report should not be used or relied upon in regard to any particular facts or circumstances without first obtaining legal advice.

Steve Vella is an Advocate at Ganado Advocates.