Court of Appeal rules that Visa and MasterCard interchange fees restricted competition

The Court of Appeal has ruled in appeals in three cases concerning claims for damages against Visa and MasterCard alleging that their multilateral interchange fees (MIFs) infringe Article 101 TFEU.

The first two cases concern High Court judgments that dismissed claims against, respectively, Visa and MasterCard. The third is an appeal by MasterCard against the Competition Appeal Tribunal’s 2016 judgment awarding damages to Sainsbury’s.

In a 99 page judgment the Court of Appeal followed the ruling of the European Court of Justice in 2014 finding that Mastercard’s MIFs restricted competition within Article 101(1) and overturned Phillips J's November 2017 ruling that Visa's UK MIFs did not restrict competition within Article 101(1).

The Court of Appeal referred the cases back to the CAT to reconsider issues relating to application of Article 101(3) and quantum.

The Court of Appeal found that it was not necessary for it to undertake a complete review of the evidence to conclude that the CAT lacked an evidentiary basis for its finding that significant MIFs would have been agreed on a bilateral basis in the absence of the MIF.

The CAT will not hear new evidence (save on certain elements of quantum).  However, in an attempt to avoid arbitrary results the parties will be able to rely on generic evidence in the other cases that are equally applicable to both schemes.

Sainsbury’s Supermarkets Ltd v MasterCard Incorporated and Others, Asda Stores Ltd and others v Mastercard Incorporated and others and Sainsbury's Supermarkets Limited v Visa Europe Services LLC, Visa Europe Limited and Visa UK Limited [2018] EWCA 1536 (Civ) (4 July 2018).