CAT stays Deutsche Bahn damages claim against MasterCard

The Competition Appeal Tribunal (CAT) has put on hold a damages claim brought by companies within the Deutsche Bahn, Inditex, ASOS, Metro, AE and Hertz groups against MasterCard.

The CAT has stayed the claim until 14 days following the outcome of the preliminary issue hearing listed to be heard on 8 to19 May 2017 in the High Court in two parallel actions against MasterCard: Deutsche Bahn & ors v MasterCard Inc. & ors (Claim No. HC-2012-000196) and Enterprise Rent-A-Car v MasterCard Inc. & ors (Claim No. HC-2014-000636).

The preliminary issues relate to choice of law and limitation.  MasterCard maintains that if foreign law applies to certain elements of Deutsche Bahn’s claim, the associated foreign law limitation period has expired.  Deutsche Bahn brought a damages claim in the High Court in 2012 which followed a December 2007 European Commission infringement decision against MasterCard in relation to its cross-border multilateral interchange fees (MIF). The Commission found that MasterCard had infringed Article 101 TFEU in that the MIF arrangements restricted competition between acquiring banks and increased the costs of accepting cards without leading to efficiencies within the meaning of Article 101(3) TFEU.  On 11 September 2014, the Court of Justice dismissed the appeal challenging a General Court judgment that upheld the Commission's 2007 decision.  In October 2015 Deutsche Bahn brought a parallel claim in the CAT.

In July 2016 the CAT ruled that if a damages claim is governed by foreign substantive law, the associated foreign law limitation period applies.  This judgment has reduced the benefit of Deutsche bringing the parallel claim in the CAT as some of its claim will be time-barred should it continue in the CAT.

Case No: 1240/5/7/15, CAT order of 22 August 2016