Deutsche Bahn Ag & Ors v Mastercard Incorporated & Ors [2018] EWHC 412 (Ch) (09 March 2018)

Deutsche Bahn Ag & Ors v Mastercard Incorporated & Ors [2018] EWHC 412 (Ch) (09 March 2018)

For all relevant periods, the applicable law for each claim is the law of the country in which the merchant was based at the time of the transaction, i.e., the national market where the restriction of competition and loss occurred. The setting of MIFs or rules in Belgium or the US is not the most significant event for choice of law purposes. The restriction of competition and loss are the most significant elements, and these occur in the national markets. Section 12 of the 1995 Act does not displace the general rule. For the Rome II period, Article 6(3) applies. For the 1995 Act period, section 11(2)(c) applies. For the pre-1996 period, common law principles lead to the same result.

Citation
[2018] EWHC 412 (Ch)
Parties
Claimants: Deutsche Bahn AG & Others; First Defendant: MasterCard Incorporated; Second Defendant: MasterCard International Incorporated; Third Defendant: MasterCard Europe SA (formerly known as MasterCard Europe SPRL); Fourth Defendant: MasterCard/Europay UK Limited
Jurisdiction
England and Wales
Judgment Date
09 March 2018
Procedural Posture
Competition Damages Claim (preliminary Issue on Applicable Law) / Judgment on Preliminary Issue Regarding Applicable Law
Outcome
Preliminary issue determined: applicable law for each claim is the law of the country where the merchant was based at the time of the transaction.
Legal Topics
Applicable Law in Tort, Article 101 TFEU, Multilateral Interchange Fees (mifs), Rome II Regulation, Private International Law (miscellaneous Provisions) Act 1995, Restriction of Competition, Choice of Law, Section 11 and 12 of 1995 Act
Competition Law Private International Law Applicable Law in Tort Article 101 TFEU Multilateral Interchange Fees (mifs) Rome II Regulation Private International Law (miscellaneous Provisions) Act 1995 Restriction of Competition +2 more

Case Brief

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Parties

Deutsche Bahn AG & Others

Claimants

MasterCard Incorporated

First Defendant

MasterCard International Incorporated

Second Defendant

MasterCard Europe SA (formerly known as MasterCard Europe SPRL)

Third Defendant

MasterCard/Europay UK Limited

Fourth Defendant

Procedural Posture

Competition Damages Claim (preliminary Issue on Applicable Law) / Judgment on Preliminary Issue Regarding Applicable Law

Legal Issues

  1. 1 What is the applicable law for competition damages claims relating to MasterCard MIFs and CAR for transactions in Germany, Italy, Poland, and the UK over three periods (1992-1996, 1996-2009, 2009-date)?
  2. 2 How should the applicable law be determined under Rome II, the 1995 Act, and common law?
  3. 3 Where did the relevant tortious events occur for the purpose of choice of law?

Ratio Decidendi

For all relevant periods, the applicable law for each claim is the law of the country in which the merchant was based at the time of the transaction, i.e., the national market where the restriction of competition and loss occurred. The setting of MIFs or rules in Belgium or the US is not the most significant event for choice of law purposes. The restriction of competition and loss are the most significant elements, and these occur in the national markets. Section 12 of the 1995 Act does not displace the general rule. For the Rome II period, Article 6(3) applies. For the 1995 Act period, section 11(2)(c) applies. For the pre-1996 period, common law principles lead to the same result.

Court Disposition

Preliminary issue determined: applicable law for each claim is the law of the country where the merchant was based at the time of the transaction.

Orders

  • Applicable law for each test country claim is the law of the country where the merchant was based at the time of the transaction.
  • Limitation issues to be determined at a later date.