Commercial Court makes Article 15 request in the interchange litigation

01 Sep 2015

On 6 August 2015, the Commercial Court granted Visa Europe’s application for a request to be made to the Commission, pursuant to Article 15 of Regulation 1/2003/EC. That provision enables national courts to ask the European Commission to cooperate by providing information that may be relevant for ongoing domestic antitrust proceedings.

This is the first time this provision has been used to request information other than (i) an opinion from the Commission or (ii) information that is part of a Commission case file in an Article 101 or 102 TFEU investigation. In this case Visa requested access to the data underlying the Commission’s Final Results of its Survey of merchants costs of processing cash and card payments published in March 2015. This data was gathered by the Commission’s consultants Deloitte from volunteer merchants who are not themselves under investigation for any competition law breach.

The claimants in the jointly case managed Commercial Court actions against Visa did not formally oppose Visa’s application, but raised concerns about the necessity and proportionality of the request as well as third party confidentiality concerns.

Hamblen J ordered that the request should be made on terms under which all third party data would be anonymised, and on the basis of a special confidentiality ring which will be set up specifically for this purpose.

Anneli Howard (instructed by Linklaters LLP) acted for the Applicants, Visa Europe a.o., the Third to Fifth Defendants in the claims.

Tim Ward QC and Rob Williams (instructed by Humphries Kerstetter) acted for the Tesco group of Claimants in the jointly case managed proceedings.