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Dune Group Ltd (claimant/appellant) & ors v VISA Europe Ltd & ors (defendants/respondents)

Monday 25th – Wednesday 27th July 2022

CLAIMANTS APPEAL

By Appellants Notice filed on 17 December 2021 the various Claimants (there are over 680) appeal parts of the Competition Appeal Tribunal’s judgment dated 26 November 2021, [2021] CAT 35, Roth J , Chairman, Tim Frazer and Paul Lomas sitting.

The Claimants seek to appeal the parts of the CAT’s judgment refusing summary judgment in respect of C’s claims for breach of Article 101 (1) of the Treaty on the Functioning of the European Union (TFEU) and s 2(1) of the Competition Act 2015
(a) for the period after 9 December 2015, when Regulation EU 2015/71, the Interchange Fee Regulation (IFR) came into effect, as regards UK and Irish domestic and intra- EEA consumer multi-lateral interchange fees (MIFs): see paras 35- 53 of the CAT judgment.
(b) as regards inter-regional MIFs- see paras 61-72 of the CAT judgment.

The CAT:
(1) granted summary judgment against Visa and Mastercard as regards UK and Irish domestic and Intra- EEA MIFs (and insofar as relevant the Gibraltar and Malta domestic MIFs) to 8 December 2015; and
(2) granted Visa permission to amend its Defence to plead the post IFR counterfactual referred to as the Unilateral Interchange Fee Model (UIFM [in 3 of the 4 actions brought against Visa]
(3) refused summary judgment as set out in 3 above
(4) found that Visa has no real prospect of successfully defending the claims based on the acquisition of Visa Europe by Visa Inc or on the basis that the inter-regional MIF was set by Visa Inc

8 sets of proceedings were issued by over 680 Claimants: all merchants or local authorities who accept payment by Visa or Mastercard credit or debit cards. 4 were issued against Visa companies (Visa) and 4 against Mastercard companies (Mastercard).

Under the Visa and Mastercard payment schemes, the Claimants pay a fee, known as the merchant service charge (MSC) to enable acceptance of the payment cards issued to cardholders. Different multi-lateral interchange fees (MIFs) apply to different transactions.

The proposed appeal concerns (a) consumer domestic MIFs: where both the bank issuing the card to the cardholder and merchant are in the same countries (b) consumer intra- EEA MIFs where the issuing bank and merchant are in different EEA Member States (c) consumer inter-regional MIFs where the issuing bank and merchant are in different regions of the world

The substantive allegations in the proceedings are identical save for a minority of Claimants; and are similar in the Visa and Mastercard actions. The damages claimed extend to November 2010.

VISA DEFENDANTS APPEAL

Visa cross appeal against the CAT’s conclusions in their 26 November 2021 judgment as regards the lack of legal significance of the level of the MIFs having been set by Visa alone.

View hearing:

Day 1

Part 1

Part 2

Day 2

Part 1

Part 2

Day 3

Part 1

Part 2