On 14 February 2019, the CAT rejected Mastercard’s attempts to use the evolution of the limitation period for damages claims in the CAT to exclude historic losses. The relevant claims were brought by Dixons and Europcar in reliance on the EC’s December 2007 decision against Mastercard.[1] The EC found that Mastercard had infringed Article 101 TFEU between 22 May 1992 and 19 December 2007 through its use of multi-lateral interchange fees for cross-border transactions made using Mastercard credit and debit cards. This was upheld by the European Court of Justice on 11 September 2014.[2] Dixons commenced follow-on proceedings in the CAT on 11 February 2015. Europcar followed suit on 9 September 2016. Both parties claimed damages from 22 May 1992 up to 21 June 2008.

The Consumer Rights Act 2015 empowered the CAT to hear both stand-alone and follow-on competition damages actions and brought the limitation period for all such claims into line with the equivalent rules in the High Court (i.e., six years from when the cause of action arose). The revised limitation period only applies to claims “arising” after 1 October 2015. The accompanying transitional provisions explain that the previous rules on limitation would apply to any claims brought before 1 October 2015. These provide for a limitation period of two years from when an infringement decision is made final (taking into account any appeal), and prevent the bringing of any claim that would have been time barred in the High Court before the commencement of section 47A Competition Act 1998 (CA 1998) (the statutory provision entitling claimants to bring follow-on claims before the CAT), namely six years before 20 June 2003. Mastercard argued that these rules should be interpreted to apply to Dixons because its claim was brought before 1 October 2015, and also to Europcar because the cause of action arose before 1 October 2015, even though proceedings were commenced subsequently. Therefore, any losses incurred by Dixons or Europcar before 20 June 2007 were time-barred.

The CAT disagreed. In relation to the Europcar proceedings, the CAT pointed to the clear exclusion of the application of the six year limitation period to claims brought after 1 October 2015 in the relevant rules. In relation to the Dixons proceedings, the CAT noted that Mastercard’s arguments would result in a perverse situation in which claimants who had started proceedings later would be free of a potential limitation defence that applied to claimants who had started proceedings several months earlier, contrary to the policy behind limitation periods. The CAT therefore focused on when the relevant infringement came to an end: if this was less than six years before section 47A CA 1998 came into force, the claim was not time-barred and damages could be sought in respect of the whole period. The CAT considered this justifiable for continuing infringements.

[1]              Decision of 19 December 2007, Case COMP/34.579 — MasterCard, Case COMP/36.518 — EuroCommerce, Case COMP/38.580 — Commercial Cards, available here.

[2]              Judgment of 11 September 2014, MasterCard and others v Commission, C-382/12P, ECLI:EU:C:2014:2201.