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Last week, the High Court in London published its judgment on applicable law in relation to the antitrust damages claims brought by a group of seven major European retailers against MasterCard alleging that they were subject to excessively high interchange fees (see Deutsche Bahn AG & Others v MasterCard Incorporated & Others, Case No.: HC-2012-000196 and HC-2014-000636). The claims are based partly on the European Commission’s decision of December 2007 in which it found MasterCard’s system of interchange fees applied to credit and debit card transactions to be in breach of Article 101 TFEU.

In total, the European retailers’ claims cover 18 different jurisdictions in Europe; however, the parties agreed in November 2015 to limit the issue of applicable law to four test countries (Germany, Italy, Poland and the UK, being four of the key markets in terms of claim value), and to have these questions assessed by way of a preliminary issue hearing. This hearing took place in April-May 2017.

Barling J’s judgment, which was handed down on 9 March 2018, is the first by the English courts to address applicable law in the context of multi-jurisdictional competition law claims and one of the first in Europe. While it is largely based on English conflict of law rules applicable prior to EU Regulation No. 864/2007 (the so-called “Rome II Regulation”), it nevertheless may be of general interest in assessing this thorny question.

Given the claims in this case date back to 1992, the judgment concerns the application of three distinct judicial frameworks governing the law to be applied over the claim period: (i) the Rome II Regulation for the period 11 January 2009 to date; (ii) the UK Private International Law (Miscellaneous Provisions) Act 1995 for the period 1 May 1996 to 10 January 2009; and (iii) principles of English common law for the period 22 May 1992 to 30 April 1996, when a double-actionability rule applied.

The European retailers argued that Belgian law should be applied to the claims for the whole period, on the basis that MasterCard’s main operations were, at all relevant times, based in Waterloo, Belgium, and that this was the place where the key decisions were taken by MasterCard, inter alia, in relation to the setting of the intra-EEA interchange fees and the implementation of (the various iterations of) MasterCard’s network rules. That is, they argued for a connecting factor based on the place of the harmful event. In contrast, MasterCard argued that the applicable law in this case should be that of the market in which the retailer operated and the transaction occurred (i.e. the domestic law of the relevant Member State). That is, they argued rather for the place of harm or restriction of competition should be the relevant factor.

In addition, the claimants argued that the double-actionability rule should be disapplied on EU grounds of effectiveness and equivalence.

The High Court found in favour of MasterCard, finding that the local law of each country affected should be applied both under the Rome II Regulation and under the 1995 Act. It based its decision, inter alia, on the finding that the restriction of competition was a relevant factor under both regimes and took place in the individual national markets because, in its view, the key event bringing about this restriction occurs when the MIF is applied to the transaction in the relevant country. It also found that it was difficult on the facts to pinpoint a single place for the harmful event.

The High Court also rejected the EU law arguments against the English court requiring pre-1996 claims to satisfy both English and applicable foreign laws (including rules on limitation).

In terms of next steps in the European retailers’ claims, the issue of limitation remains to be decided and the claimants may decide to seek leave to appeal the judgment. As with applicable law, the matter of limitation will be heard as a preliminary issue with expert legal evidence to be produced on the relevant applicable laws. A hearing is however yet to be scheduled. Barling J’s findings on applicable law will have a direct impact on the analysis of limitation, with the various national laws under consideration all providing for differing tests and possible claim periods: the “patchwork quilt scenario”, loved and hated in equal measure by legal practitioners depending on their interests in a particular case.

Cuatrecasas is advising the claimant group in these proceedings, alongside co-counsel, Hausfeld & Co LLP.

 

By Paul Hitchings, James Hain-Cole and Luis Loras

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Abogado

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luis.loras@cuatrecasas.com

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james.hain-cole@cuatrecas.com

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