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Competition Appeal Tribunal refuses to certify interchange collective proceedings


The CAT has declined to certify four sets of proposed collective proceedings – two against Mastercard, and two against Visa. 

Mastercard and Visa each set multilateral interchange fees (MIFs), payable where a transaction takes place using a Mastercard or Visa payment card, between the merchant’s bank and the cardholder’s bank.  These proposed proceedings concern the MIFs payable where a commercial credit cards is used, and the MIFs payable where the cardholder’s bank is in a different region from the merchant’s point of sale.

The claims allege (and Mastercard and Visa dispute) that these MIFs were a restriction of competition, which had the effect of increasing the charges paid by merchants to their banks to process transactions.    

The proceedings proposed to combine the claims of all merchants in the UK with an annual turnover below £100 million, who had accepted such transactions on an opt-out basis; and to combine the claims of all merchants with an annual turnover above that level who had accepted any such transaction within the EU.

Mastercard and Visa opposed certification of the proceedings.  The Tribunal accepted these arguments, finding that the proposed class representatives had failed to set out an adequate methodology as required by the case law in order for the proceedings to be tried on a collective basis.  The lack of an adequate methodology extended to questions of infringement, causation and quantum. 

The requirement for the class to be identifiable was also not satisfied.

The Tribunal accordingly declined to grant certification and, consistent with the approach taken in Gormsen v Meta, stayed the proceedings pending the proposed class representatives making revised proposals.  The Tribunal observed that some of the defects found by the judgment may not be easily remedied.

The judgment is here.

Hugo Leith (instructed by Freshfields Bruckhaus Deringer LLP and Jones Day) appeared for Mastercard.

Daniel Piccinin KC (instructed by Linklaters LLP and Milbank LLP) appeared for Visa.