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Umbrella Interchange Fee Claimants v Umbrella Interchange Fee Defendants, Court of Appeal, Judgment 19 December 2024; [2024] EWCA Civ 1559
This is an appeal judgment in the Multilateral Interchange Fees (MIFs) Umbrella litigation from a decision on limitation made by the Competition Appeal Tribunal (the CAT). The issue was whether the EU law principle referred to as the “Cessation Requirement” applies in pre-Brexit claims.
The CAT had found that it was not bound by the post-completion day CJEU case of Volvo (Case C-267/20) and that Volvo was not authority for the Cessation Requirement being part of EU law. It also held it was bound to follow the Court of Appeal’s pre-Brexit decision in Arcadia Group Brands v Visa which had decided that EU law did not impose any Cessation Requirement upon English law limitation rules. The MIF Umbrella Claimants appealed.
Between the CAT and Court of Appeal hearings the CJEU gave judgment in Heureka v Google (Case C-605/21) and the UKSC gave judgment in Lipton v BA Cityflyer [2024] UKSC 24.
The Appellants contended that Heureka decided that the Cessation Requirement had always been a binding rule of EU law arising out of the general EU law principle of effectiveness. The Court of Appeal agreed with the Appellants on that point.
The majority in Lipton favoured what the UKSC called the “complete code analysis” of the Withdrawal Act, whereby a cause of action based on facts which occurred before completion day is brought forward as part and parcel of the bringing forward of the law itself under whichever of sections 2, 3 or 4 of the Withdrawal Act is relevant and is “retained EU law”, so that section 6 of the Withdrawal Act applies and the court is not bound by post-completion day CJEU case law, but may have regard to it.
Without revisiting the point, the Court of Appeal held it should follow Lipton’s complete code analysis, and that it would leave it to the Appellants to seek to persuade the UKSC to hear further debate between the complete code analysis and an Interpretation Act analysis.
The Court of Appeal held therefore that it was not bound by Volvo or Heureka, as post-completion day CJEU decisions. Further, it held that Volvo and Heureka reflected a “departure” for EU law, as no pre-completion day CJEU authority had “made it clear” that the EU law principle of effectiveness would always require that a limitation period for a claim founded on articles 101 and 102 TFEU only began to run once the infringement had ceased. The Court of Appeal also held that, like the CAT, it was bound by Arcadia to hold that the Limitation Act 1980, as it applies to competition claims, accords with the EU law principle of effectiveness, which would also be a matter for the UKSC to revisit.
Philip Moser KC and Philip Woolfe KC of Monckton Chambers acted for the MIF Umbrella Claimants, instructed by Scott + Scott and Stephenson Harwood.