Oliver Jackson in accrued EU law rights vs retained EU law judgment


In a landmark judgment, the Competition Appeal Tribunal has held that any claim brought under EU law prior to Brexit was automatically ‘translated’ into a claim under retained EU law by the European Union (Withdrawal) Act 2018.

The judgment arises out of the long-running interchange fee litigation against Visa and Mastercard. Thousands of businesses and millions of consumers are seeking compensation for losses allegedly caused by the card schemes’ anti-competitive interchange fees. The card schemes’ infringement of competition law is said to have begun in 1992 at the latest, such that the vast majority of the losses claimed occurred before the UK left the EU on 31 December 2020 (“IP Completion Day”).

The claimants argued that:

  1. EU competition law was the relevant law in force in the UK at the time of their losses.
  2. The ECJ General Court had clarified in Volvo v RM (Case C-267/20) that, under EU competition law, limitation could not begin to run on a damages claim until the anti-competitive infringement had ceased (the “Cessation Requirement”).
  3. Under UK law, pursuant to s.16 Interpretation Act 1978 the repeal of a statute does not retrospectively extinguish legal rights which had already accrued under that statute, absent clear wording in the repealing Act.
  4. EU law formed part of UK law pursuant to the European Communities Act 1972. That statute was repealed by the EUWA 2018. But the EUWA 2018 is solely concerned with retained EU law. None of its provisions address pre-existing rights accrued under the ECA 1972. Those rights remain unaltered.
  5. As the Cessation Requirement formed part of EU law prior to IP completion day, and as the card schemes’ anti-competitive infringement had not yet ceased, limitation had not yet begun to run on the claimants’ claims for damages. Accordingly, the claimants could recover for losses extending back to 1992, the start of the card schemes’ infringement of competition law.

The CAT held, first, that the ECJ judgment in Volvo was not binding authority for the Cessation Requirement (an issue which will be clarified shortly by the CJEU Grand Chamber in Heureka v Google (Case C-605/21)).

However, in a point of significant wider constitutional interest to legal practitioners, clients and academics, the CAT also held that any EU law claims which had accrued while the UK was a member of the EU were ‘translated’ into claims under retained EU law on IP completion day. The majority (Marcus Smith J and Ben Tidswell) held that this was the effect of s.4 EUWA 2018. Roth J disagreed but found that this result was implied by the scheme of the EUWA 2018 as a whole. The judgment will be highly relevant to all continuing UK litigation involving EU law.

Oliver Jackson acts for the Stephenson Harwood Claimants, together with Ronit Kreisberger KC and Philip Woolfe of Monckton Chambers. You can read the judgment here.