Umbrella Interchange Fee Claimants v Umbrella Interchange Fee Defendants

The Court of Appeal dismissed the claimants' appeal from the Competition Appeal Tribunal's decision on limitation. The appeal raised whether post‑completion day decisions of the Court of Justice of the European Union (CJEU) (notably Volvo and Heureka) are binding in England and Wales when they post‑date 31 December 2020, and whether they established a pre‑existing EU law ‘Cessation Requirement’ for limitation periods in competition damages cases.

The court followed the United Kingdom Supreme Court's “complete code” analysis in Lipton and held that post‑completion day CJEU decisions are not binding on domestic courts under the European Union (Withdrawal) Act 2018; they may be “had regard to” under section 6(2) but do not form binding retained EU case law. The court concluded that Volvo and Heureka represented a development of EU law rather than a declaration of an already existing principle and therefore did not bind the court in respect of pre‑completion day facts. The court also held it was bound by Arcadia, which had decided English limitation law did not infringe the EU law principle of effectiveness and that article 10(2) of the Damages Directive was new law. Accordingly the Tribunal was correct to refuse to import a Cessation Requirement into the Limitation Act 1980 for the claimants' pre‑completion day rights.

This appeal arises from the Multilateral Interchange Fees litigation and a Competition Appeal Tribunal decision of 26 July 2023 concerning limitation. The claimants alleged continuous infringements of article 101 TFEU (and equivalent domestic law) by Visa and Mastercard between about 1992 and later dates and sought damages said to have been passed on to them. The Tribunal had decided that (i) Volvo (CJEU Case C‑267/20) did not conclusively establish that EU law required limitation periods to run only from cessation of an infringement, (ii) even if Volvo did so decide the Tribunal was not bound by that post‑completion day CJEU decision under the Withdrawal Act and was bound by the Court of Appeal decision in Arcadia, and (iii) in any event the Tribunal would not import a Cessation Requirement into English limitation law by having regard to Volvo.

The Court of Appeal identified three principal issues: (i) whether Lipton (UKSC [2024] UKSC 24) requires the court to treat post‑completion day CJEU decisions as not binding (the court followed Lipton's "complete code" analysis); (ii) whether Volvo and Heureka (CJEU Case C‑605/21) declared a Cessation Requirement that pre‑existed completion day (the court held they introduced new law and did not merely declare prior law); and (iii) whether Arcadia binds the court to hold that English limitation law accords with the EU principle of effectiveness (the court held Arcadia is binding and that article 10(2) of the Damages Directive was new law and not pre‑existing).

The court's reasoning rested on: the text and structure of the European Union (Withdrawal) Act 2018, the Supreme Court's recent Lipton analysis, the content of pre‑completion CJEU jurisprudence (Courage, Manfredi, Cogeco and Danske Slagterier) which did not clearly establish a Cessation Requirement, and the Damages Directive's article 10 and temporal non‑retroactivity (article 22), all leading to the conclusion that Volvo and Heureka were not binding on domestic courts for pre‑completion day facts and could not displace Arcadia. Relief sought was the overturning of the Tribunal's limitation decision; the appeal was dismissed.

The appeal is dismissed. The court followed the Supreme Court's complete code analysis in Lipton, holding that post‑completion day CJEU decisions are not binding on domestic courts under the Withdrawal Act and may only be "had regard to" under section 6(2). Volvo and Heureka were treated as developments of EU law rather than declarations of pre‑existing rules; there was no clear pre‑completion day CJEU authority establishing a Cessation Requirement. Arcadia is binding and the Limitation Act 1980, as applied to competition claims, was held compatible with the EU principle of effectiveness in the pre‑completion day context. Accordingly the Tribunal was right to refuse to import a Cessation Requirement for the claimants' pre‑completion day rights.

Appeal from the Competition Appeal Tribunal decision ([2023] CAT 49) to the Court of Appeal ([2024] EWCA Civ 1559). The Court of Appeal heard the appeal on 3–4 December 2024 and handed down judgment on 19 December 2024.