Key Facts
- •Follow-on damages claim brought by Mr Merricks on behalf of 45 million UK consumers against Mastercard for alleged overcharges between 1992 and 2008.
- •Claim based on European Commission Decision finding Mastercard infringed Article 101 TFEU regarding cross-border EEA multilateral interchange fees (EEA MIFs).
- •Three preliminary issues on appeal: limitation/prescription, applicable law, and exemptibility.
- •CAT found claims pre-20 June 1997 (English law) and pre-20 June 1998 (Scots law) time-barred.
- •CAT found English/Scots law governed claims based on transactions with foreign merchants.
- •CAT found Mastercard could not advance a counterfactual based on an alternative exemptible EEA MIF due to the binding effect of the Commission Decision.
Legal Principles
Limitation Act 1980 and Prescription and Limitation (Scotland) Act 1973
UK Statutes
Competition Act 1998
UK Statutes
CAT Rules 2003 and 2015
UK Secondary Legislation
Interpretation Act 1978
UK Statutes
Private International Law (Miscellaneous Provisions) Act 1995
UK Statutes
Common law rule of double actionability
Common Law
Article 101 TFEU
EU Law
Abuse of process
Common Law
Outcomes
Appeal on applicable law dismissed.
While the general rule under PILMPA 1995 would point to the law of the countries where the restriction of competition occurred, the collective nature of the proceedings and the focus on aggregate loss in the UK justify displacing that rule under section 12. The most significant factor is the aggregate loss suffered in the UK.
Permission to appeal refused on limitation/prescription.
It is highly improbable that Parliament intended to revive time-barred claims. The omission of rule 31(4) from the 2015 Rules does not indicate an intention to abrogate accrued limitation rights. Section 47A(4) of the Competition Act 1998 is an identification provision, not a replacement of the Limitation Act.
Appeal on exemptibility dismissed.
Mastercard's failure to justify its MIFs before the Commission on an empirical basis led to a general finding that its MIFs were unlawful, not just a specific level. The Commission's decision requires the dismantling of the entire EEA MIF architecture. The counterfactual is therefore no EEA MIF.