Decision

Following a lengthy legal battle, the Court of Justice of the European Union (“CJ”) has today dismissed an appeal by MasterCard against the judgment of the General Court in 2012 which had upheld the European Commission’s (the “Commission”) decision that MasterCard’s cross-border multilateral interchange fees (“MIF”) in the EEA had the effect of restricting competition and were not capable of exemption. 

Background to the case

In 2007, the EC found that the MIF arrangements entered into by MasterCard amounted to a decision by an association of undertakings which had restricted competition between participating banks of MasterCard, thus breaching Article 101(1) of the Treaty on the Functioning of the European Union. MIFs are fees charged by the card-issuing bank and paid by the retailer’s bank upon any transaction.  In essence, the effect of the MIF was to fix the price of charges to merchants since those charges could not be set at a level below the MIF.

MasterCard appealed this decision to the General Court who, in May 2012, upheld the EC’s decision and dismissed MasterCard’s appeal. In its decision, the General Court confirmed that the MIF arrangements restricted competition. MasterCard appealed the decision again, taking its appeal to the CJ. Today, the CJ gave a definitive answer to the issue, ending years of investigation and dispute.

Comments

The decision of the court had been widely anticipated since the publication of Advocate General Paolo Mengozzi’s Opinion in January 2014 which had concluded that the appeal should be dismissed.  The CJ will often, although not always, follow the Advocate General’s opinion.

While the final decision itself will not affect MasterCard’s current operations, with the firm having previously changed its fees to comply with the EC’s requirements, there will be broader implications for ongoing cases throughout the EU.

Aside from this case, there are numerous damages claims in the UK courts against MasterCard said to be of a value over $2 billion, which will now go forward in reliance on this decision. National competition authority investigations are also pending in Germany and the UK. Other cases are before the courts of France, Italy, Hungary and Latvia. The CJ’s decision is likely to shape those national proceedings and investigations.

At a European level, the future of the debate surrounding card fees remains undecided, as  European institutions are currently in the process of discussing draft legislation which would ultimately cap both cross-border and domestic fees across the EU in a phased approach. This does however, open the door further to the prospect of national legislation which goes even further than those fee caps proposed at the European level.