Supreme Court confirms that Visa and Mastercard’s interchange fees infringe Article 101(1) TFEU

Supreme Court confirms that Visa and Mastercard’s interchange fees infringe Article 101(1) TFEU

The Supreme Court has given judgment on appeals by Mastercard and Visa against the Court of Appeal’s judgment holding that the setting of multilateral interchange fees (MIFs) within the Mastercard and Visa payment card systems infringes Article 101 TFEU.

The Court of Appeal judgment concerned actions where various retailers claimed damages from Mastercard or Visa (Sainsbury's v Visa; Asda Stores Limited and others (AAM) v Mastercard and Sainsbury's v Mastercard).

The Supreme Court confirmed a number of findings which are worthy of a much more thoughtful examination than here.  I will be returning to the detail at a later stage.  The Supreme Court held that the Court of Appeal correctly found that it was bound by the European Commission’s 2007 infringement decision insofar as the defendant’s’ MIFs breach Article 101(1) TFEU.

As to Article 101(3), the Supreme Court considered that the fair share of the benefits must be received by the consumers in the same market as that affected by the restriction of competition.

However, the Supreme Court departed from the Court of Appeal in relation to the precision needed in the quantification of mitigation of loss.

The Supreme Court allowed the AAM cross-appeal against the decision to remit the case to the Competition Appeal Tribunal for consideration of the Article 101(3) issues; such arguments should have been dismissed.  As a result, the action should proceed to the stage of quantification of damages.

Sainsbury’s Supermarkets Ltd v Visa Europe Services LLC and others and Sainsbury’s Supermarkets Ltd and others v Mastercard Incorporated and others [2020] UKSC 24