Dune Group Ltd & Ors v Visa Europe Ltd & Ors [2022] EWCA Civ 1278 (04 October 2022)

Dune Group Ltd & Ors v Visa Europe Ltd & Ors [2022] EWCA Civ 1278 (04 October 2022)

The Court held that, following the introduction of the Interchange Fee Regulation, it is at least seriously arguable that the appropriate counterfactuals for assessing restriction of competition are those proposed by Visa and Mastercard (UIFM and bilaterals counterfactuals), and not necessarily no default MIF with settlement at par. The CAT was correct to refuse summary judgment for the claimants on UK, Irish and intra-EEA consumer MIFs post-9 December 2015, as Visa and Mastercard have real prospects of success on these points. The CAT was also correct to refuse summary judgment on inter-regional consumer MIFs, as the effect on competition is not self-evident and requires examination at...

Citation
[2022] EWCA Civ 1278
Parties
Claimants/appellants: Dune Group Limited and others; Defendant/respondent: Visa Europe Limited; Defendant/respondent: Visa Europe Services LLC; Defendant/respondent: Visa UK Limited; Defendant/respondent: Mastercard Incorporated; Defendant/respondent: Mastercard International Incorporated; Defendant/respondent: Mastercard Europe SA; Defendant/respondent: Mastercard/Europay UK Limited
Jurisdiction
England and Wales
Judgment Date
04 October 2022
Procedural Posture
Civil Appeal / Appeal From Competition Appeal Tribunal
Outcome
Appeal dismissed; CAT's refusal of summary judgment upheld.
Legal Topics
Multilateral Interchange Fees, Article 101 TFEU, Competition Act 1998, Interchange Fee Regulation, Summary Judgment, Restriction of Competition, Counterfactual Analysis
Competition Law European Union Law Commercial Law Multilateral Interchange Fees Article 101 TFEU Competition Act 1998 Interchange Fee Regulation Summary Judgment +2 more

Case Brief

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Parties

Dune Group Limited and others

Claimants/appellants

Visa Europe Limited

Defendant/respondent

Visa Europe Services LLC

Defendant/respondent

Visa UK Limited

Defendant/respondent

Mastercard Incorporated

Defendant/respondent

Mastercard International Incorporated

Defendant/respondent

Mastercard Europe SA

Defendant/respondent

Mastercard/Europay UK Limited

Defendant/respondent

Procedural Posture

Civil Appeal / Appeal From Competition Appeal Tribunal

Legal Issues

  1. 1 Whether post-9 December 2015 UK, Irish and intra-EEA consumer MIFs infringe Article 101(1) TFEU in light of the Interchange Fee Regulation
  2. 2 Whether inter-regional consumer MIFs infringe Article 101(1) TFEU
  3. 3 Whether the acquisition of Visa Europe by Visa Inc or Visa Inc's role with inter-regional MIFs provides a defence

Ratio Decidendi

The Court held that, following the introduction of the Interchange Fee Regulation, it is at least seriously arguable that the appropriate counterfactuals for assessing restriction of competition are those proposed by Visa and Mastercard (UIFM and bilaterals counterfactuals), and not necessarily no default MIF with settlement at par. The CAT was correct to refuse summary judgment for the claimants on UK, Irish and intra-EEA consumer MIFs post-9 December 2015, as Visa and Mastercard have real prospects of success on these points. The CAT was also correct to refuse summary judgment on inter-regional consumer MIFs, as the effect on competition is not self-evident and requires examination at...

Court Disposition

Appeal dismissed; CAT's refusal of summary judgment upheld.

Orders

  • Summary judgment refused for claimants on UK, Irish and intra-EEA consumer MIFs post-9 December 2015.
  • Summary judgment refused for claimants on inter-regional consumer MIFs.