Federal Court Affirms Preliminary Injunction on Visa

On October 7, 2021, the Argentine Chamber of Fintech filed a complaint before the Argentine Commission for the Defense of Competition (CNDC) regarding various aspects of the implementation of MasterCard and Visa programs, respectively referred to as the “Payment Intermediary Foreign Exchange Operators” (PIFO) and “Expanded Merchant Location Pilot Program” (EMLP). According to the information provided, these programs raised competition concerns related to the following practices:

1. increasing fees for processing cross-border transactions,
2. using commercially-sensitive information from potential competitors for anti-competitive purposes.

During the investigation, the CNDC identified that Visa entered into contracts with acquiring entities and merchants that included territorial exclusivity clauses. To prevent potential harm to the general economic interest, the CNDC issued an opinion on October 2, 2023, recommending the issuance of a preliminary injunction under article 44 of Law 27442. The injunction ordered Visa to cease any behavior deemed discriminatory or constituting an unjustified refusal of access to the Visa network until the investigation was concluded.

In this context, on November 17, 2023, the Secretariat of Commerce issued Resolution 2084/023, imposing a temporary injunction on Visa Inc, Visa International Service Association, Prisma Medios de Pago SAU, and First Data Cono Sur SRL.

Visa International Service Association and Visa Inc. filed direct appeals under article 67 of Law 27442, challenging the resolution the Secretariat of Commerce had issued. However, on September 5, 2024, Chamber I of the Federal Court in Civil and Commercial Matters dismissed the appeals.

The injunction, now upheld by the Federal Court, orders Visa to:

• suspend any contractual clause that prevents an Argentine payment facilitator from processing transactions from foreign merchants carried out by domestic consumers,
• refrain from implementing any commercial policy that limits sub-acquiring cross-border transactions,
• terminate agreements with foreign merchants affiliated with local payment facilitators,
• avoid blocking access to the Visa network for cross-border transactions involving such merchants.