Factual and Procedural Background
This appeal arises from a decision of the Competition Appeal Tribunal (the Tribunal) dated 26 July 2023 concerning limitation periods in ongoing Multilateral Interchange Fees (MIFs) litigation. The claimants, merchants numbering approximately 2,300, brought claims against two defendants, Company A and Company B, alleging multiple and continuous infringements of article 101 of the Treaty on the Functioning of the European Union (TFEU), the Competition Act 1998, and domestic competition laws of other European Economic Area states. The claims relate to interchange fees set and implemented by the defendants since about 22 May 1992, which the claimants allege were passed on to them.
The central legal question concerns the effect in England and Wales of decisions of the Court of Justice of the European Union (CJEU) delivered after 31 December 2020 (the Implementation Period Completion Day, or completion day), specifically regarding the interpretation and application of the European Union (Withdrawal) Act 2018 (the Withdrawal Act). The claimants argued that the EU law principle of effectiveness requires a "Cessation Requirement"—a limitation period for claims based on competition law infringements only begins to run once the infringement has ceased.
The Tribunal rejected that the Cessation Requirement was binding EU law, holding that post-completion day CJEU decisions were not binding under the Withdrawal Act and that the Tribunal was bound by the pre-Brexit Court of Appeal decision in Arcadia Group Brands Ltd v. Visa Inc, which held no such requirement applied. The Tribunal also held that even if it could consider post-completion day CJEU decisions, the principle of effectiveness did not require importing the Cessation Requirement into English or Scots law limitation regimes.
Subsequently, two new relevant cases were decided: Heureka Group a.s. v. Google LLC (2024) by the CJEU, which the claimants contend confirmed the Cessation Requirement as binding EU law, and Lipton v. BA Cityflyer Ltd (2024) by the UK Supreme Court, in which the defendants argue the "complete code analysis" of the Withdrawal Act means post-completion day CJEU decisions are not binding but may be considered.
The claimants advanced four grounds of appeal challenging the Tribunal’s interpretation and application of EU law and the Withdrawal Act, including whether the Cessation Requirement was an existing principle of EU law, whether it applied to accrued pre-completion day rights, whether the Tribunal should have given effect to it by "having regard" to post-completion day decisions, and whether it should have been enforced via statutory construction or disapplication of limitation provisions.
Legal Issues Presented
- Whether the court should follow the UK Supreme Court's complete code analysis in Lipton and decide that the Tribunal was correct in holding it was not bound by post-completion day CJEU decisions in Volvo and Heureka.
- Whether, notwithstanding the above, the court should follow Volvo and Heureka on the basis that they declared the Cessation Requirement had always been part of EU law.
- Whether the court is bound by the precedent set in Arcadia to hold that the Limitation Act 1980, as applied to competition claims, accords with the EU law principle of effectiveness and that the Cessation Requirement constitutes new law.
Arguments of the Parties
Appellants' Arguments
- The Tribunal misinterpreted Volvo, which should be understood as establishing the Cessation Requirement as an existing and binding principle of EU law, confirmed by Heureka.
- The Cessation Requirement applies to accrued pre-completion day rights preserved under the European Communities Act 1972 and Interpretation Act 1978, as per the "Interpretation Act analysis" favored by a minority in Lipton.
- Even if not mandated, the Tribunal should have given effect to the Cessation Requirement by "having regard" to post-completion day CJEU decisions under section 6(2) of the Withdrawal Act.
- The Tribunal should have enforced the Cessation Requirement by construing or disapplying relevant provisions of the Limitation Act 1980.
Respondents' Arguments
- The UK Supreme Court’s Lipton decision establishes the "complete code analysis," under which post-completion day CJEU decisions are not binding but may be considered.
- Volvo and Heureka represent new EU law and do not reflect pre-completion day EU law; therefore, they are not binding on this court in relation to pre-completion day accrued rights.
- The Tribunal was bound by the Court of Appeal’s decision in Arcadia, which held that the Limitation Act 1980 complies with the EU law principle of effectiveness and that the Cessation Requirement was new law introduced by the Damages Directive.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Volvo AB and DAF Trucks NV v. RM (2022) (Case C-267/20) |
Articulated the "Cessation Requirement" that limitation periods for competition law infringements should not begin before the infringement has ceased. |
The Tribunal held Volvo did not establish the Cessation Requirement as binding EU law; the appeal court agreed it was not binding post-completion day law under the Withdrawal Act. |
| Heureka Group a.s. v. Google LLC (2024) (Case C-605/21) |
Confirmed that the Cessation Requirement arises from the EU law principle of effectiveness. |
The court held Heureka is a post-completion day decision and not binding but may be considered; it does not reflect pre-completion day EU law. |
| Lipton v. BA Cityflyer Ltd [2024] UKSC 24 |
Established the "complete code analysis" of the Withdrawal Act, clarifying the binding nature of post-completion day CJEU decisions. |
The court followed Lipton’s analysis, holding post-completion day CJEU decisions are not binding but may be considered under section 6(2) of the Withdrawal Act. |
| Arcadia Group Brands Ltd v. Visa Inc [2015] EWCA Civ 883 |
Held that EU law did not impose a Cessation Requirement on English limitation law. |
The court held it was bound by Arcadia, which remains good law and supports that the Limitation Act 1980 complies with the EU law principle of effectiveness. |
| Courage Ltd v. Crehan (Case C-453/99) [2002] QB 507 |
Addressed the principle of effectiveness but did not establish the Cessation Requirement. |
The court found Courage did not support the Cessation Requirement as part of EU law. |
| Manfredi v. Lloyd Adriatico Assicurazioni SpA (Joined Cases C-295/04 to C-298/04) [2006] 5 CMLR 17 |
Considered limitation periods in competition law but did not establish a general Cessation Requirement. |
The court held Manfredi did not articulate a binding Cessation Requirement but provided guidance on effectiveness principle application. |
| Cogeco Communications Inc v. Sport TV Portugal SA (Case C-637/17) [2020] 5 CMLR 2 |
Applied the principle of effectiveness to limitation periods, moving towards the Cessation Requirement principle. |
The court recognized Cogeco as a step towards the principle but not definitive for English law. |
| Danske Slagterier v. Germany (Case C-445/06) [2010] All ER (EC) 74 |
Referenced in Arcadia; concerned limitation principles but factually distinct. |
The court found Danske Slagterier did not assist with the Cessation Requirement argument in this context. |
| Test Claimants in the FII Group Litigation v. Revenue and Customs Comrs [2012] 2 AC 337 |
Recognized the necessity of reasonable limitation periods for legal certainty under EU law. |
Used in Arcadia to support that limitation periods are consistent with EU law principles of effectiveness and legal certainty. |
Court's Reasoning and Analysis
The court began by framing the appeal within the context of the Withdrawal Act and the status of post-completion day CJEU decisions. It adopted the UK Supreme Court's "complete code analysis" from Lipton, concluding that post-completion day CJEU decisions, such as Volvo and Heureka, are not binding on UK courts but may be considered under section 6(2) of the Withdrawal Act.
The court then examined pre-completion day EU law authorities (Courage, Manfredi, Cogeco) and found no established principle requiring the Cessation Requirement as part of the EU law principle of effectiveness. The earlier cases left the application of effectiveness to national courts, with no clear mandate for a Cessation Requirement. The court emphasized that Volvo and Heureka represent a departure from prior EU case law, introducing the Cessation Requirement as new law rather than reflecting existing principles.
Considering the claimants’ submission that the court should follow Volvo and Heureka under its power to "have regard" to post-completion day decisions, the court rejected this. It held that because the Cessation Requirement was not part of pre-completion day EU law, sections 4(1) and 5(2) of the Withdrawal Act did not preserve it, and it was inappropriate to apply these post-completion day decisions retrospectively.
The court reaffirmed the binding nature of Arcadia, which held that the Limitation Act 1980 complies with the EU law principle of effectiveness and that the Cessation Requirement, as enshrined in article 10(2) of the Damages Directive, constitutes new law. The Damages Directive’s non-retrospective provisions further supported this conclusion.
Accordingly, the court concluded that the Tribunal was correct in holding that it was not bound by Volvo and Heureka and that the Limitation Act 1980 remains consistent with the principle of effectiveness without the Cessation Requirement.
Holding and Implications
The court DISMISSED the appeal.
The direct effect of this decision is that the Tribunal’s ruling stands: post-completion day CJEU decisions, including Volvo and Heureka, are not binding on UK courts under the Withdrawal Act but may be considered. The Limitation Act 1980, as applied to competition law claims, complies with the EU law principle of effectiveness without incorporating the Cessation Requirement. The Cessation Requirement is recognized as new EU law introduced by the Damages Directive and is not retrospectively applicable to pre-completion day rights.
No new precedent altering the application of limitation periods in competition law claims in England and Wales was established by this decision. The claimants remain free to seek permission to appeal this ruling to the UK Supreme Court to revisit the interpretation of the Withdrawal Act and the applicability of the Cessation Requirement.