The Supreme Court grants Deutsche Bahn AG permission to appeal against a Court of Appeal judgment concerning interchange fees

The Supreme Court (SC) today announced that permission to appeal has been granted to Deutsche Bahn AG (and other retailers) against the Court of Appeal’s judgment upholding an appeal by MasterCard against a judgment of the High Court, relating to interchange fees.

This follows an action in the High Court brought by Deutsche Bahn (and various retailers) alleging that they suffered loss as a result of MasterCard’s interchange fee arrangements, which were in breach of EU/EEA and UK competition law.

This followed a decision by the European Commission that MasterCard’s EEA multilateral interchange fee restricts price competition in that it artificially inflates the base prices charged by banks for accepting payment cards.

The claimants then applied to the High Court for permission to amend the particulars of claim by adding to the claim that, from 18 November 2004, there existed one or more concerted practices between at least MasterCard Inc and/or MasterCard International Inc and/or MasterCard Europe SPRL and MasterCard UK Members Forum.

The High Court held that the new claim arose out of the same, or substantially the same facts as the existing claim. MasterCard appealed against the High Court ruling. In April 2017, the Court of Appeal upheld MasterCard’s appeal and concluded that the High Court judge had erred. Deutsche Bahn applied to the Supreme Court for permission to appeal.

The SC has ordered that permission to appeal be granted, and a hearing date will be set in due course.