Deutsche Bahn Ag & Ors v Mastercard Incorporated & Ors

Deutsche Bahn Ag & Ors v Mastercard Incorporated & Ors

The applicable law for tort claims relating to alleged competition law breaches by MasterCard is the law of the country where the merchant was based and the market affected, not Belgian law, for all periods; section 11(2)(c) and the double actionability rule require focus on the restriction of competition and loss in national markets; no displacement under section 12 or the exception; EU law principles do not override English limitation law.

Parties
Claimant: Deutsche Bahn AG & Others; Defendant: MasterCard Incorporated; Defendant: MasterCard International Incorporated; Defendant: MasterCard Europe SA (formerly known as MasterCard Europe SPRL); Defendant: MasterCard/Europay UK Limited
Jurisdiction
England and Wales
Judgment Date
09 March 2018
Procedural Posture
Competition Law Damages Claim / Judgment on Preliminary Issue of Applicable Law
Outcome
Preliminary issue determined: applicable law is that of the country where the merchant was based and the market affected for all periods; Belgian law does not apply except for Belgian merchants.
Legal Topics
Applicable Law in Tort, Restriction of Competition, Multilateral Interchange Fees, Limitation Periods, Double Actionability Rule
Competition Law Private International Law Applicable Law in Tort Restriction of Competition Multilateral Interchange Fees Limitation Periods Double Actionability Rule

Case Brief

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Parties

Deutsche Bahn AG & Others

Claimant

MasterCard Incorporated

Defendant

MasterCard International Incorporated

Defendant

MasterCard Europe SA (formerly known as MasterCard Europe SPRL)

Defendant

MasterCard/Europay UK Limited

Defendant

Procedural Posture

Competition Law Damages Claim / Judgment on Preliminary Issue of Applicable Law

Legal Issues

  1. 1 What is the applicable law for tort claims arising from alleged breaches of competition law in relation to MasterCard's MIFs and CAR for transactions in Germany, Italy, Poland, and the UK during three periods: (i) Rome II (post-11 Jan 2009), (ii) 1995 Act (1 May 1996–10 Jan 2009), (iii) Common law (22 May 1992–30 Apr 1996)?
  2. 2 Whether Belgian law or the law of the country where the merchant is based applies under section 11(2)(c) of the 1995 Act and the double actionability rule.
  3. 3 Whether section 12 of the 1995 Act or the exception to the double actionability rule should displace the general rule in favour of Belgian law.

Ratio Decidendi

The applicable law for tort claims relating to alleged competition law breaches by MasterCard is the law of the country where the merchant was based and the market affected, not Belgian law, for all periods; section 11(2)(c) and the double actionability rule require focus on the restriction of competition and loss in national markets; no displacement under section 12 or the exception; EU law principles do not override English limitation law.

Court Disposition

Preliminary issue determined: applicable law is that of the country where the merchant was based and the market affected for all periods; Belgian law does not apply except for Belgian merchants.

Orders

  • Parties to agree an order reflecting these conclusions.