The Umbrella Interchange Fee Claimants (Appellants) v The Umbrella Interchange Fee Defendants (Respondents) No 2

Case summary

Case ID

UKSC/2025/0021

Parties

Appellant(s)

Umbrella Interchange Fee Claimants

Respondent(s)

Visa Europe Limited and others

MasterCard Incorporated

Issue

In what circumstances should courts in this jurisdiction have regard to and choose to follow a judgment of the Court of Justice of the European Union (“CJEU”) handed down after IP completion day (ie 31 December 2020), pursuant to section 6(2) of the European Union (Withdrawal) Act 2018 (“EUWA 2018”)?

Facts

This appeal arises out of the individual damages claims brought by around 2,000 merchants for compensation from the Respondents, Visa and Mastercard, for alleged decades-long and continuous infringements of Article 101 of the Treaty on the Functioning of the European Union (“TFEU”). The Respondents each operate payment card schemes which require merchants to pay multilateral interchange fees. In 2007, the CJEU held that certain of those fees infringed Article 101 of the TFEU. In 2020, the Supreme Court held that it was bound by that decision and that certain of the fees (a broader class than had been the subject of the CJEU decision) prima facie infringed Article 101 of the TFEU. The Appellants in these proceedings allege that all the fees charged by the Respondents – including some which they continue to charge – infringed Article 101 of the TFEU or domestic competition law. However, there is a question as to whether any of the Appellants’ claims are time barred. The answer to that question turns on whether the UK courts follow the post-IP completion day case law of the CJEU. Since IP completion day, the CJEU has issued two judgments (Volvo v RM in 2022 and Heureka v Google in 2024) which confirm that, under EU law, the limitation period on a claim for damages for breach of the competition law provisions in Articles 101 and 102 of the TFEU starts running only after the infringement of the law ceases (the “Cessation Requirement”). In these proceedings, however, the Competition Appeal Tribunal and the Court of Appeal each declined to follow Volvo (and Heureka in the case of the Court of Appeal, which heard the case after that judgment), instead applying an earlier Court of Appeal authority (Arcadia Group Brands v Visa in 2015). That decision held that the existing domestic limitation rules complied with the principle of effectiveness. The Respondents initially argued that Volvo and Heureka were binding on the UK courts but, in light of the Supreme Court decision in Lipton v BA Cityflyer in 2021, now pursue their alternative submission that the UK courts should choose to follow Volvo and Heureka even if they are not binding.

Date of issue

10 February 2025

Case origin

PTA

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