Case note: penalty for excessive card surcharge

In Australian Competition and Consumer Commission v CLA Trading Pty Ltd trading as Europcar [2019] FCA 1262 Justice Davies of the Federal Court of Australia found Europcar contravened section 55B(1) of the Competition and Consumer Act 2010 (Cth) by imposing excessive surcharges for payments received by it for use of the Visa credit system, the Visa debit system, the MasterCard credit systems, and the MasterCard debit systems . Europcar was fined $350,000 and ordered to pay a $25,000 contribution towards the ACCC’s legal costs.

Europcar admitted the contraventions and agreed to the proposed orders.

Europcar operates a consumer car rental business. It is a “Large Merchant” within the definition of “Large Merchant” in cl 2.3 of the Reserve Bank of Australia Standard No. 3 of 2016 – Scheme Rules Relating to Merchant Pricing for Credit, Debit and Pre-Paid Card Transactions.

Under section 55B(1) of the Act and the Standard, Europcar, as a “Large Merchant”, was prohibited from charging a payment surcharge exceeding the permitted surcharge referred to in the Standard.

The estimated financial benefits to Europcar as a result of it charging consumers excessive payment surcharges were:
(a) $46,921.59 in respect of contraventions in the period between 19 July 2017 and 31 August 2017; and
(b) $20,294 in respect of contraventions in the period between 1 September 2017 and 5 November 2017.

Europcar has refunded the excessive payment surcharges to the relevant affected consumers except for an amount of $2,149 because the respective cards have been cancelled or expired or the customer’s bank has advised Europcar that a corresponding credit or debit card record could not be found. Europcar sent emails to those affected customers, using the email addresses supplied at the time of renting the vehicle, seeking particulars of an account into which to pay the refund.

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