Umbrella Interchange Fee Claimants v Umbrella Interchange Fee Defendants

In these proceedings the Claimants contended that the result of EU law as stated in the Court of Justice of the European Union’s (“CJEU’s”) decision in Heureka Group a.s. v Google LLC (2024) Case C-605/21 (“Heureka”) was that no limitation period applicable to competition infringement proceedings could commence until the relevant infringement had ceased (“the Cessation Requirement”). On the Claimants’ estimate application of the Cessation Requirement would have opened the way to further damages claims against Visa and Mastercard with a value running into billions of pounds.

The Court of Appeal held (at [14, 17-19]) that the Supreme Court guidance in Lipton v BA Cityflyer Ltd [2024] UKSC 24 3 WLR 474 should not be departed from by the Court of Appeal such that English Courts were not bound by post-Brexit judgments of the CJEU such as Heureka pursuant to s. 6(1) of the EU Withdrawal Act 2018 (“the 2018 Act”).

The Court also held (at [22-39]) that the decision in Heureka in any event represented a significant departure from pre-Brexit CJEU case law and that for this reason and on the basis of the Court’s earlier decision in Arcadia Group Brands Ltd v Visa Inc [2015] EWCA Civ 883 [2015] Bus LR 1362 (“Arcadia”) it would be inappropriate for the Court to apply Heureka to the pre-Brexit facts of the case notwithstanding the Court’s power to “have regard” to post-Brexit CJEU judgments pursuant to s. 6(2) of the 2018 Act.

The Court further held (at [14, 40-44] that it was bound by its decision in Arcadia to conclude that the Cessation Requirement was not part of the EU principle of effectiveness and that the Limitation Act 1980 was entirely compatible with that principle.

Timothy Otty KC and Naina Patel appeared for the successful Respondent Mastercard instructed by Nick Cotter of Jones Day LLP.

A copy of the Court of Appeal’s judgment is here.