In the latest decision concerning multilateral interchange fees (“MIFs”) delivered on Friday 23 February, Phillips J held that if Visa’s MIFs were anticompetitive "then they were not exempt under Article 101(3) TFEU and would not have been exempt at any level”. The Court found that in the light of the factual and expert evidence, Visa had not shown that there was a causal link between the MIFs and the levels of card usage: there was a “complete absence of evidence of a real, observable and measurable link” between the MIFs and actions taken by Issuers to stimulate card usage. Moreover, Phillips J said that Visa was not “anywhere close” to establishing to the requisite standard that the MIFs caused the efficiencies Visa sought to rely on.
This judgment constitutes the second part of the Court’s decision in Sainsbury’s Supermarkets Ltd v Visa Europe Services LLC and others [2018] EWHC 355 (Comm). In the first part of his judgment, handed down on 30 November 2017, Phillips J decided that Visa’s MIFs did not restrict competition within the meaning of Article 101(1) TFEU. However, in the second part of his judgment, the judge said that if he was wrong, and if Visa’s MIFs do restrict competition, then those MIFs did not qualify for exemption at the levels actually charged or at any level at all. This finding is highly significant because it could mean that any MIFs Visa charged retailers where overcharges. It could also have important implications for MasterCard’s MIFs, which are also under challenge.
The first part of Philips J’s judgment is on appeal to the Court of Appeal. It will be considered over a period of twelve days in April 2018, along with two other judgments in the interchange litigation, namely Sainsbury’s Supermarkets Ltd v MasterCard Incorporated & ors [2016] CAT 11 and Asda Stores Ltd v MasterCard Inc [2017] EWHC 93 (Comm). The European Commission has intervened and applied to make oral submissions in the appeals. The three decisions of the High Court are irreconcilable with one another and in different ways they are at odds with the decisions of the European Courts.
It is likely that Visa will now seek permission to amend its grounds of appeal to challenge Phillips J’s finding that its MIFs were not exempt at any level.
Derek Spitz represented Sainsbury’s and the judgment can be found here.