Courts of both instances did not examine whether the amount of the interchange fee was justified, according to the judgement of the Supreme Court dated 25 October 2017. As a result of the banks’ appeals, the Supreme Court overturned the judgment of the Court of Appeal in Warsaw which upheld the 2006 decision of the President of the Office of Competition and Consumer Protection (“UOKiK”).
In the opinion of the Supreme Court, courts must adhere to a certain standard of evidence proceedings when parties appeal and challenge the facts on which the competition authority based its decision. In the case at hand, the Supreme Court considered the facts related to the level of interchange fees and their justification by the costs incurred by the banks as insufficient. The courts unreasonably dismissed the motions as to evidence aimed at, inter alia, determining whether the agreement on interchange fees qualifies for an exemption from the prohibition of agreements restricting competition.
The most important consequence of the judgment is the fact that the decision of the President of the UOKiK is still not final. The recognition of the banks’ activities as unlawful is not binding, and nor is the imposition of fines on the banks. The acquirers who are or will be pursuing claims against the banks have lost a significant argument and will have to prove in the proceedings against the banks not only the existence of damage and its magnitude, but also whether the banks’ actions related to setting interchange fees were unlawful.