Reduction of interchange fees

The main purpose of the recent amendment of the Payment Services Act was to make a further statutory reduction (following the change that went into effect on 1 January 2014) in the maximum interchange rate for transactions performed in Poland. From 29 January 2015, it is 0.2% of the value of domestic payment transactions using a debit card or 0.3% when a credit card is used.

The amendment has a broader context arising out of legal acts drafted or already adopted at the EU level. On 26 February 2014 the European Commission issued a decision directed to Visa Europe Ltd in which it required this payment card organisation to cut the threshold of interchange fees to 0.2% for consumer Visa debit cards and 0.3% for consumer Visa credit cards. Following that decision, Polish lawmakers assumed that the application by Visa of interchange fees lower than the legal maximum in Poland (0.5% from 1 January 2014) could have negative conse­quences for the acquirers market in Poland, particularly by giving a competitive advantage to foreign acquirers. This threat—although debatable—was regarded as sufficiently urgent that it was decided to cut the maximum rate of interchange fees in Poland without waiting for issuance of the EU regulation on the matter which is currently being worked on.

Among other changes, definitions of “debit card,” “credit card,” and “interchange fee” have also been added to the Payment Services Act.

Additional requirements for acquirers and payment card organisations

Apart from the statutory reduction in maximum interchange rates, regulations governing pre-contractual obligations of acquirers with respect to merchants have also been introduced into the Payment Services Act. However, a restrictive clause was not adopted which would have provided that the level of fees incurred by merchants “must be established with consideration of the actual, appropriate and justified costs incurred in connection with provision of services to the merchant and comply with principles of fair competition.” (Such wording was included in the original draft proposed by MP Wincenty Elsner.)

The existing wording of Art. 28(1a) of the Payment Services Act gave the merchant the right to demand information from the acquirer on the fees collected by the merchant, including data on the amount of the fees and a breakdown into all of the elements, including the amounts allocated to the acquirer and other entities. Under Art. 26(1), the acquirer was required to provide this information in paper form or other permanent medium, and by email only if requested by the user.

Art. 28(1a) was amended. The merchant’s right to demand this information (and the obligation of the acquirer to provide it) was replaced by a duty on the part of the acquirer to provide information to the merchant, prior to conclusion of a framework agree­ment, on the level of the acquirer’s fee and a break­down of the elements of the fee. However, Art. 26(1), concerning the form in which this information is to be supplied, continues to apply.

Hence the acquirer’s obligation to provide information concerning the merchant’s fee is generally pre-contractual in nature (although the new Art. 28(1b) also applies in the event of a change in the level of the merchant’s fee).

Payment card organisations have in turn been charged with the obligation to publish on their websites information about the rate of system fees and to notify the Polish Financial Supervision Authority and acquirers of planned changes in these rates three months in advance.

These changes make use of three of the new definitions introduced into the Payment Services Act:

• interchange fee (“a fee established by a payment card organisation for a payment trans­action performed using a payment card, paid by the acquirer to the issuer of the payment card”)
• system fee (“a fee for a payment transaction performed using a payment card, constituting income of the payment card organisation”)
• merchant fee (“a fee for a payment transaction performed using a payment card, collected by the acquirer from the merchant, comprising the interchange fee, the system fee, and the acquirer’s commission”).

Certain doubts about the amendment

Some of the provisions of this amendment may be interpreted in a way that might significantly limit the scope of their impact. For example, the prior statutory maximum rate of interchange fees applied to trans­actions performed “using a payment card or similar payment instrument.” The current maximum rates apply to payment transactions performed using payment cards (debit cards and credit cards). A literal inter­pretation thus could exclude the application of maxi­mum rates to payment instruments other than cards.

It should also be pointed out that in many instances the parties will be able to contract around the new  regulations or, for example, modify the content of the acquirer’s informational obligations or the rules for performance of its informational obligations. This is because Art. 28 is found in Section II of the Payment Services Act, entitled “Informational obligations with respect to performance of payment services.” Under Art. 16 of the act, a payment service provider and a user which is not a consumer may agree that the provisions of this section, except for Art. 32a, will not apply in whole or in part. Considering that the dealings between the acquirer and the merchant generally are professional (non-consumer) in nature, the parties will easily be able to exercise the right to modify these rules.