On 17 March 2026, the Court of Appeal granted Mastercard and Visa permission to appeal in respect of the judgment of the Competition Appeal Tribunal (CAT) on the Article 101(1) TFEU infringement issues in the Umbrella Interchange Fee proceedings.[1] The CAT’s judgment on these issues ([2025] CAT 35) followed a 6-week trial that ended in March 2024 but was not issued until 28 May 2025.
By the judgment now under appeal, the CAT determined that the so-called “Default Interchange Fee Rule” under which multilateral interchange fees (MIFs) are set by Mastercard and Visa infringed Article 101(1) TFEU in the relevant periods. As regards certain categories of MIF (e.g. those charged in respect of transactions on commercial cards), this was determined to be an infringement ‘by object’, whereas for others the infringement was ‘by effect’ only (e.g. MIFs on domestic and EEA consumer transactions since the imposition of regulatory caps under the Interchange Fee Regulation 2015 (IFR)). Certain of the CAT’s conclusions were by majority, with Mr Justice Marcus Smith being in the minority in concluding that the Default Interchange Fee Rule was an object infringement as regards all MIFs in all time periods.
In response to broad applications for permission to appeal from Mastercard and Visa, Lord Justice Green ordered that there be a full-day oral permission hearing. This took place on 12 March 2026 before Lord Justices Zacaroli and Miles. Following the hearing, the Court of Appeal has granted permission on all grounds.
The substantive hearing of the two appeals will consider issues of wider importance to infringement proceedings, including whether (1) the CAT applied the wrong approach to selecting the appropriate counterfactual to be used in testing for restrictive effects under Article 101 TFEU and/or contradicted the judgment of the Court of Appeal in Dune Group v Visa [2023] 4 C.M.L.R 15 as regards the appropriate counterfactual for MIFs capped under the IFR, (2) the CAT’s judgment was vitiated by procedural unfairness in that it adopted approaches to market definition and the analysis of the putatively restrictive measure that were not argued by the parties or addressed at trial and (3) the CAT disregarded or wrongly distinguished clear CJEU authority in respect of the test for infringement ‘by object’ and the application of that test to two-sided markets such as card payment schemes.
Mastercard is represented on its appeal by Sonia Tolaney KC, Matthew Cook KC and Owain Draper.
[1] The Umbrella proceedings relate to multilateral interchange fees (MIFs) paid by acquirers (e.g. Worldpay) to issuers (e.g. HSBC) under the rules of the card payment schemes operated by Mastercard and Visa. The claims are brought by merchants who, according to the “Trial 2” judgment in the same proceedings, ultimately bear the main burden of MIFs because these are “passed on” to them in the merchant service charges (MSCs) that they pay to acquirers.