Court considers whether MasterCard fees breach competition law


Re: Asda Stores Ltd & Ors v MasterCard Incorporated & Ors [2017] EWHC 93 (Comm)

The issue in these claims was whether the multilateral interchange fees (MIFs) set by MasterCard for credit and debit card transactions in the UK and Ireland infringed UK, Irish and EU competition law.

The Court held that the MIFs prima facie restricted competition by comparison with a counterfactual of no MIFs or putatively lawful lower MIFs, in that they imposed a floor below which the charges paid by merchants could not fall. However, the Court went on to hold that the MIFs were in fact objectively necessary, and did not restrict competition. This was because the counterfactual world should assume the existence of Visa’s MIFs at the levels actually set (as the Claimants had not proved that the Visa scheme was materially identical to MasterCard’s). On that basis, without MIFs the MasterCard scheme would not have survived in a materially and recognisably similar form, due to the switching by card issuers from MasterCard to Visa that would have taken place.

Although not necessary for its decision, the Court went on to determine that the MIF levels actually set by MasterCard over the relevant period were, very largely, below the levels that would have been exempt under Article 101(3) TFEU and its domestic counterparts.

Christopher Brown was involved in this case.