Umbrella Interchange Fee Claimants v Umbrella Interchange Fee Defendants
| Jurisdiction | UK Non-devolved |
| Court | Competition Appeal Tribunal |
| Year | 2023 |
2023 April 24–26;July 26
European Union - Court of Justice of the European Union - Judgment - Claimants’ claim for infringement of competition law accruing prior to United Kingdom’s withdrawal from European Union - Court of Justice after United Kingdom’s withdrawal giving judgment on running of time in competition infringement cases - Effect of court’s decision - Whether binding on UK courts if right to bring claim accrued prior to withdrawal from EU -
The first group of claimants were merchants who accepted payment by Visa and/or Mastercard payment cards. They brought umbrella proceedings against Visa and Mastercard for alleged infringement of article 101 of the Treaty on the Functioning of the European UnionF1. The second group of claimants were parties to collective proceedings against Mastercard, also for breaches of article 101 of the Treaty. Following the United Kingdom’s withdrawal from the European Union, the Court of Justice of the European Union gave a judgment about limitation periods for bringing actions for infringements of EU competition law. The claimants contended that (1) the judgment established that a limitation period applicable in a member state only started to run from the time when the infringement ceased, and (2) the judgment was binding in the same way as it would have been prior to the UK’s withdrawal from the European Union. The second point was made on the basis that although the European Communities Act 1972F2 (which by section 2(1) incorporated EU enforceable rights into UK law) had been repealed, the claimants’ right to be make a claim under article 101 of the Treaty was, for the purposes of section 16(1) of the Interpretation Act 1978F3, a right that had accrued under a repealed enactment and therefore unaffected by the repeal. Accordingly, the provisions of section 6 of the European Union (Withdrawal) Act 2018F4 on the effect of decisions of the European Court had no application in relation to the right, and those decisions remained binding, whenever they were decided.
On a hearing ordered by the Competition Appeal Tribunal to determine what the European Court had decided and whether its decision was binding—
Held, that the decision of the European Court did not stand as authority for the proposition that, as a matter of EU law, time had to run from when the infringement of competition law had ceased; that any view expressed by the court on the significance of cessation of the infringement in the context of the effectiveness of national limitation laws, was not a foundation of the operative part and not binding in any event (post, paras 28, 33, 75, 82).
Per Sir Marcus Smith (President) and Ben Tidswell. Section 2(1) of the European Communities Act 1972 acted as a gateway by which EU enforceable rights were capable of application in the United Kingdom. Although the European Union (Withdrawal) Act 2018 repealed the 1972 Act, that repeal affects only the gateway by which substantive rights came into the law of the United Kingdom. The rights themselves being preserved by section 4(1) of the 2018 Act, section 16(1) of the Interpretation Act is not relevant. The development of those substantive rights, even if they accrued, but were not resolved, prior to the United Kingdom’s exit from the EU, is a matter for the courts of the United Kingdom, not the European Court of Justice. Accordingly, even if the European Court had held that a limitation period cannot start to run before the cessation of an infringement, the courts of the United Kingdom would not have been bound to follow the decision (post, paras 68, 69, 70, 72, 75, 82, 102).
Per curiam. Although under section 6(2) of the European Union (Withdrawal) Act 2018 regard can be had to decisions of the European Court, its decision on the running of limitation periods in competition law infringement cases did not lead the court to interpret the principle of effectiveness as incorporating a cessation requirement into English limitation rules. The requirement that a limitation period cannot begin to run until the injured party knows, or can reasonably be expected to know, (i) the fact that it has suffered harm as a result of that infringement and (ii) the identity of the perpetrator of the infringement, satisfies the principle of effectiveness without the imposition of a cessation requirement (post, paras 73, 135).
The following cases are referred to in the judgment:
Arcadia Group Brands Ltd v Visa Inc
Balogun v Secretary of State for the Home Department
Coburn v Colledge [
Cogeco Communications Inc v Sport TV Portugal SA (Case C–637/17)
Courage Ltd v Crehan
Dudgeon v United Kingdom (Application No 7525/76) (
Francovich v Italian Republic
Harpur Trust v Brazel
JJH Enterprises Ltd v Microsoft Corpn
Jersey Choice Ltd v HM Treasury
Kemwater ProChemie sro v Odvolací finanční ředitelství
Kone AG v ÖBB-Infrastruktur AG
Lipton v BA City Flyer Ltd
Manfredi v Lloyd Adriatico Assicurazioni SpA
Meilicke v Finanzamt Bonn-Innenstadt
Merricks v Mastercard Incorporated [2023] CAT 15,
News Corp UK & Ireland Ltd v Revenue and Customs Comrs
R v Montila
R (Miller) v Secretary of State for Exiting the European Union
R (on the application of A and B) v Secretary of State for Health
Secretary of State for Work and Pensions v Beattie [2022] EAT 163; [
Sumal SL v Mercedes Benz Trucks España SL
Tower Bridge GP Ltd v Revenue and Customs Comrs
Varano v Air Canada
Volvo AB and DAF Trucks NV v RM
Warner Music UK Ltd v TuneIn Inc
Wilson v First County Trust Ltd (No 2)
X v Belgium
Yew Bon Tew v Kenderaan Bas Mara [
The following additional cases were cited in argument or were referred to in the skeleton arguments:
Allianz Global Investors GmbH v Barclays Bank plc
Arkin v Borchard Lines Ltd [2000] Eu LR 232
Civil Aviation Authority v Ryanair DAC
Cofidis SA v Jean-Louis Fredout
Consiliul Concurenţei v Whiteland Import Export SRL
DSG Retail Ltd v Mastercard Inc
Dansk Industri v Rasmussen’s Estate
Danske Slagterier v Germany
Gemalto Holding BV v Infineon Technologies AG
Generics (UK) Ltd v Competition and Markets Authority [2021] CAT 9; [
Granville Technology Group Ltd v Innolux Corp
Impact v Minister for Agriculture and Food
Klohn v An Bord Pleanála
London Steam-Ship Owners’ Mutual Insurance Association Ltd v Kingdom of Spain (The Prestige)
MAS v Presidente del Consiglio dei Ministri
Manzoni v Fonds National de Retraite des Ouvriers Mineurs
Marks & Spencer plc v Customs and Excise Comrs (No 1)
Marsal v Apong [
Mincione v Gedi Gruppo Editoriale SpA
NYE Kystlink AS v Color Group AS
O’Byrne v Aventis Pasteur MSD Ltd
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