On 19 December 2024 the Court of Appeal handed down a landmark appeal judgment in the Multilateral Interchange Fees Umbrella litigation.
The appeal arises out of the long-running interchange fee claims against Visa and Mastercard. Thousands of businesses and millions of consumers are seeking compensation for losses caused by anti-competitive interchange fees. The card schemes’ infringement of competition law began in 1992 at the latest, such that the vast majority of the losses claimed occurred before the UK left the EU on 31 December 2020 (IP completion day).
The issue for the Court of Appeal was whether the EU law principle known as the ‘Cessation Requirement’ – that limitation cannot begin to run on a competition law damages claim until the infringement had ceased – applied in the UK to pre-Brexit claims.
At first instance, the Competition Appeal Tribunal (CAT) had found that it was not bound by the post-IP completion day CJEU case of Volvo (Case C-267/20) and that, in any event, Volvo was not authority for the Cessation Requirement being part of EU law. The CAT had also held it was bound to follow the Court of Appeal’s pre-Brexit decision in Arcadia Group Brands v Visa,which had decided that EU law did not impose any Cessation Requirement upon English law limitation rules. The claimants appealed.
Between the CAT and Court of Appeal hearings the CJEU gave judgment in Heureka v Google (Case C-605/21) and the Supreme Court gave judgment in Lipton v BA Cityflyer [2024] UKSC 24.
Before the Court of Appeal, the Appellants contended that Heureka decided that the Cessation Requirement had always been a binding rule of EU law arising out of the general EU law principle of effectiveness. The Court of Appeal agreed with the Appellants on this.
The majority in Lipton favoured what the Supreme Court called the ‘complete code analysis’ of the Withdrawal Act, whereby a cause of action based on facts which occurred before completion day is brought forward as part and parcel of the bringing forward of the law itself under whichever of sections 2, 3 or 4 of the Withdrawal Act is relevant and is “retained EU law”, so that section 6 of the Withdrawal Act applies and the court is not bound by post-completion day CJEU case law, but may have regard to it.
Without revisiting the point, the Court of Appeal held it should follow Lipton’s complete code analysis, and that it would leave it to the Appellants to seek to persuade the Supreme Court to hear further debate between the complete code analysis and an Interpretation Act analysis.
The Court of Appeal held therefore that it was not bound by Volvo or Heureka, as post-completion day CJEU decisions. Further, it held that Volvo and Heureka reflected a “departure” for EU law, as no pre-completion day CJEU authority had “made it clear” that the EU law principle of effectiveness would always require that a limitation period for a claim founded on articles 101 and 102 TFEU only began to run once the infringement had ceased. The Court of Appeal also held that, like the CAT, it was bound by Arcadia to hold that the Limitation Act 1980, as it applies to competition claims, accords with the EU law principle of effectiveness, which would also be a matter for the Supreme Court to revisit.
Oliver Jackson acted for the Appellants, together with Philip Moser KC and Philip Woolfe KC of Monckton Chambers, instructed by Scott + Scott and Stephenson Harwood. You can read the judgment here.
