Umbrella Interchange Fee Claimants v Umbrella Interchange Fee Defendants

For claims based on pre-IP completion day facts, a post-completion day CJEU decision is not binding on a UK court under the European Union (Withdrawal) Act 2018, section 6(1), although it may be considered under section 6(2). A later CJEU ruling cannot be treated as a declaration of pre-completion EU law where the relevant rule was not clearly established before completion day. Earlier effectiveness jurisprudence did not establish a general cessation requirement for competition damages limitation periods. The court was bound by earlier Court of Appeal precedent to treat the domestic limitation regime as compatible with EU effectiveness and the cessation rule in article 10(2) of the Damages Directive (2014/104/EU) as new law.

These appeals arose from the Competition Appeal Tribunal’s limitation decision in the continuing MIF litigation: [2023] CAT 49. Merchants claimed damages against Visa and Mastercard defendants for alleged continuous infringements of Articles 101 and 102 TFEU and domestic competition law. The Tribunal held that Volvo did not establish a cessation requirement, that post-completion CJEU decisions were not binding under the Withdrawal Act, and that it was bound by earlier Court of Appeal authority on the domestic limitation regime.

After the Tribunal’s decision, the CJEU decided Heureka and the UK Supreme Court decided Lipton. The appeal concerned whether those decisions changed the temporal analysis, whether the cessation requirement was pre-completion EU law, and whether the domestic limitation rules should be conformed or disapplied.

Disposition

1. Appeal dismissed. Sir Geoffrey Vos MR gave the leading judgment. Sir Julian Flaux C and Lady Justice Falk agreed.
2. Following Lipton v BA Cityflyer Ltd [2024] UKSC 24, the complete code analysis applied. A pre-completion cause of action based on then-applicable EU law was retained EU law, so section 6 of the European Union (Withdrawal) Act 2018 governed the claim. Post-completion CJEU decisions were not binding, although the court could consider them.
3. Heureka made clear that current EU law requires limitation periods to begin only after the infringement has ended. The earlier authorities did not establish that rule. Courage was not a limitation case; Manfredi left application of the effectiveness principle to the national court; and Cogeco addressed particular features of national limitation regimes.
4. The court therefore treated Volvo and Heureka as a departure in EU law and declined to apply them to pre-completion facts under section 6(2). It was bound by Arcadia Group Brands Ltd v Visa Inc [2015] EWCA Civ 883, which treated the domestic limitation regime as compatible with effectiveness and article 10(2) of the Damages Directive (2014/104/EU) as new law.
5. The court left open the retrospective effect of Heureka in current EU member states. It also did not need to decide whether the cessation requirement could be enforced by conforming construction or disapplication of sections 2 or 9 of the Limitation Act 1980.

• Court of Appeal (Civil Division): The appeals from the Tribunal were dismissed.
• Competition Appeal Tribunal: On 26 July 2023, the Tribunal determined limitation issues in the continuing MIF litigation and gave its decision at [2023] CAT 49.