In a highly significant judgment, the Court of Appeal has dismissed an appeal brought by the Claimants in the ongoing Merchant Interchange Fee proceedings.
The Merchant Interchange Fee Proceedings are brought by a large number of merchants who claim that the Multilateral Interchange Fees (or “MIFs”) set by the Mastercard and Visa schemes are anti-competitive and unlawful. While the Supreme Court held in Sainsbury v Mastercard [2020] UKSC 24 that the MIFs payable in respect of UK and Irish domestic and EEA cross-border consumer card transactions prior to 2015 restricted competition contrary to Article 101(1) of the EC Treaty, Mastercard and Visa contend that this judgment cannot be automatically read across to different MIFs (including in respect of commercial and inter-regional transactions), countries and time-periods.
The merchant Claimants applied to the Competition Appeal Tribunal for summary judgment contending that the effect of Sainsbury v Mastercard is that all MIFs restrict competition. On 26 November 2021, the Competition Appeal Tribunal rejected that application. The Court of Appeal upheld the Tribunal’s decision and concluded that the status of these other MIFs should be determined at trial. The judgment emphasises the importance of identifying the correct counterfactual when determining whether conduct is anti-competitive.
Laurence Rabinowitz KC acted for Visa (alongside Brian Kennelly KC and Isabel Buchanan at Blackstone and Daniel Piccinin at Brick Court), instructed by Linklaters LLP and Milbank LLP.
Matthew Cook KC and Ben Lewy acted for Mastercard, instructed by Jones Day.
The judgment can be seen here.