mfkne

Not quite. There are two categories of cards that are exempt from the ban on surcharges:

1) Cards not issued by banks, such as AMEX
2) All business cards (including Visa and MasterCard, which are otherwise to be free of surcharges)

r2edline

Nice I'll keep this in mind for my next booking, thanks.

CyBeR

How is that not exactly what I said?

Aviatrix

Not in the UK. And flight bookings for UK-originating flights come under UK law, not Dutch law. It's a transaction with a UK company (a company in Bedfont for online bookings, a company in Norwich for telephone bookings). There are no exemptions for Amex, so no fee should be charged.

mfkne

I don't think anyone has any doubt about that. What I was referring to was the PSD2 as passed by the EU. It was the UK that singlehandedly decided to ban surcharges of all cards (in a surprisingly consumer friendly move, I might add).

Nigel Roberts

EU law is very specific about what is, and is not, a commercial card. Amex cards are not commercial cards by the EU definition except in certain very restricted circumstances. (see Article 2(6) of Regulation (EU) 2015/751 of the European Parliament and of the Council of 29th April 2015)

KLM's convenient and creative definition simply does not match that of the EU legislative instrument. The UK has, quite rightly, simply adopted the relevant EU legal definition (as it should!)

If the Netherlands has (as others have reported) failed in its obligations under EU law by Dutch law having not yet in force, the Directive became automatically part of Dutch law on 13th January as written. This is the legal principle of "direct effect" of Directives which was established in Van Gend en Loos v Nederlandse Administratie der Belastingen. (What a surprise .. a Dutch case!). So PSD2 does apply, right now, in the Netherlands (just for your information.)

It's worth reading the actual Directive, incidentally, since it's pretty watered down, but as others have said, it's irrelevant, since any company anywhere in the EEA marketing into UK consumers are governed by the 2017 Regulations, which are pretty unambiguous.

And accordingly, I'm able to inform that KLM Royal Dutch Airlines have today been reported to the Trading Standards by Citizens Advice (I know the reference number) for these illegal surcharges.

mfkne

AMEX are not exempt from the surcharge ban as commercial cards in PSD2 but because they are not subject to the interchange fee regulation, and the surcharge ban only applies to those cards that are subject to the interchange fee regulation.

SouthWesterner

I understand that the Advocate General decided otherwise (back in July 2017) in respect of all Amex co-branded cards (e.g. British Airways, Starwood, etc. Amex that are offered in the UK). I gather that the ECJ is due to hand down its decision very soon, but they rarely go against the AG. The effect is that only cards with no co-branding (like the Preferred Rewards Gold, Platinum, etc.) are not caught by the interchange regulation.

The doctrine of Direct Effect has been well explained above, but it would still be nice to see The Netherlands properly transpose the directive.

Glad to hear it! I was meaning to get around to filling out the form...

Nigel Roberts

Thank you.

Why is it I get the feeling that you will be one of the few people who understand the difference between 'directly effective' and 'directly applicable'? :-)

Nigel Roberts

I can report that KLM have changed their stance in response to my persistence. It's not an improvement, however.
They originally claimed that my personal Amex card was a company card. (It's not.)

As of today their stated position is that it is lawful to surcharge consumers who use Amex cards, and that the exception for Amex is contained in the law.

They have today issued me with a final rejection of my Claim asking for the refund of all surcharges they have levied since 13th January 2018.

I am therefore, at the earliest opportunity (probably early next week) filing a Claim Form (formerly known as a "Summons") with the County Court in England, claiming a number of things, one of which being a refund on all unlawful surcharges.

If anyone else is in the same position, and also wishes to make a similar Claim (whether from KLM or any other company), then please feel free to get in touch.

SouthWesterner

I might grapple with the odd directive and regulation...

Good luck. I haven't made any cash bookings via the KLM site since the ban came in (I did make a Flying Blue redemption yesterday, for which I paid the taxes using my personal Amex. No surcharge on that). I see that the issue has been picked up by Which? and certain newspapers (if one counts the Daily Star and Daily Mail as such!):
https://www.which.co.uk/news/2018/02...urcharge-fees/
https://www.dailystar.co.uk/news/lat...edt-debit-card
KLM and Air France illegally charged credit card fees | Daily Mail Online

They seem to be telling the press that:
Which is a 'bold' position to take!

Nigel Roberts

The Daily Mail is actually pretty good for consumer issues. But it's probably the only thing it is good for (apart from wrapping fish and chips)

Nigel Roberts

Here's an update, on what is now very much a live legal action in the Small Claims Court. (Roberts v KLM Royal Dutch Airlines E69YJ303). If any one else is interested or affected, please do feel free to contact me.

In overview: the Claim was filed in the Claims Centre several weeks ago. KLM filed Acknowledgement of Service, which gives an extra 14 days to file a defence. In the form they filed, they do not appear to dispute the County Court's jurisdiction.

Although that 14 days has not yet expired, I received an emailed copy of their Defence yesterday. KLM's Legal Affairs team has been very professional at all times.

As this is a live case, I'm not going to pre-empt the judge's ruling by discussing the arguments in great detail here. And from previous experience, in any event nothing happens in a particular hurry with County Court cases,, but now having read their Defence, I can only comment at this stage that I was more surprised by what isn't in it, rather than what is.

If it seems appropriate, I will try to make the pleadings public in the coming weeks..

The facts aren't in dispute ( "KLM surcharged my personal credit card on several occasions after 13th January 2018") so the eventual Decision will almost certainly be based on whose interpretation of the law the judge prefers.

What I can also say is that, in accordance with modern litigation practice, which is aimed at keeping Claims out of the court system, I have proposed that we attempt mediation and KLM have agreed "in view of the small size of the Claim".

I'm not very optimistic, however, since the essence of the Claim is to determine that they recognise the charges are unlawful, and they do not seem ready to do this.

In addition, I have deliberately been quitre moderate in the remedies (damages) requested. The principal remedy I am seeking is that that the Court rule that the surcharges are unlawful (or KLM concede the point).

I look forward to any insights from the FT community.

SouthWesterner

Interesting update, Nigel. I'm very curious to know what's in that defence!

I have refused to buy any tickets from KLM since the surcharge ban came in. All of my AF/KL tickets are now booked via Amex Travel (surcharge free). I do occasionally check the KLM website to see whether they have removed the surcharges, but continue to be disappointed by their refusal to fall into line. I've not come across another carrier that's still surcharging personal Amex cards on tickets with UK POS.

I did complain to Trading Standards, however they declined to look into the matter (due to KLM being headquartered outside of the UK) and suggested taking it up with the European Consumer Centre. I haven't taken things any further. I would have issued a claim if I had paid any surcharges (as you have done), just on principle. Will be interested to hear the final result (assuming you will be able to share it).

Nigel Roberts

I'm happy to share the detail of the Claim, their Defence and (when I finish it, in about a week's time) my Reply with anyone who contacts me directly.

For obvious reasons (spam) it's inadvisable for me to post an email address here, but suffice it to say that Google should give you enough clues on how to find me.

In addition, email can always be sent to my first name followed by the usual 'at' sign followed by my surname, with the common suffix for British companies (i.e .CO.UK).