R (on the application of the American Express Company) v Lords Commissioners of Her Majesty's Treasury

European Union – Payment connected with movement of goods, services or capital. The proceedings between American Express Company and the Lords Commissioners of Her Majesty's Treasury, UK, concerned the conditions for the application to three-party payment card schemes of the rules governing the access of authorised or registered payment service providers to payment systems. The Court of Justice of the European Union in a preliminary ruling in those proceedings, held, among other things, that the first subparagraph of art 35(2) of Directive (EU) 2015/2366 should be interpreted as meaning that a three-party payment card scheme that had entered into a co-branding agreement with a co-branding partner did not lose the benefit of the exception provided for by that provision and, therefore, was not subject to the obligation laid down in art 35(1) of that directive. However, a three-party payment card scheme that made use of an agent for the purposes of supplying payment services lost the benefit of that exception and, therefore, was subject to the obligation laid down in art 35(1).

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