"EU Law Is No Longer Supreme": CAT Rules In Umbrella Interchange Case That It Is Not Bound By Post-Brexit CJEU Decision On Limitation Periods In Competition Follow-on Damages Claims

• Published date: 23 October 2023
• Subject Matter: Antitrust/Competition Law, Litigation, Mediation & Arbitration, Antitrust, EU Competition , Trials & Appeals & Compensation
• Law Firm: Travers Smith LLP
• Author: Mr Nigel Seay, Barney Stannard and Alex Thomson

In its judgment of 26 July 2023¹, the Competition Appeal Tribunal ("CAT") considered the applicability of the European Court of Justice's ("CJEU") decision on limitation in Volvo AB and DAF Trucks NV v RM² ("The Volvo Decision") to the claims brought in both the Umbrella Interchange Fee Litigation and the Merricks Collective Proceedings.

1. The Volvo Decision

The Volvo Decision arose out of a request to the CJEU for a preliminary ruling by a Spanish regional court and was published on 22 June 2022, postdating Implementation Period Completion Day ("IP Completion Day"), the point at which the transitional (or implementation) period of Brexit ended.

Both sets of claimants alleged that no part of their claims was time-barred by limitation periods as a result of the Volvo Decision which, as they interpreted it, held that "limitation periods applicable to actions for damages for infringements of the competition law provisions of the Member States and of the European Union cannot begin to run before the infringement has ceased".³

Further, the claimants argued that to the extent that the English law of limitation gives an inconsistent result to the Volvo Decision, it must yield to the supremacy of EU law in this regard, notwithstanding that the Volvo Decision postdates IP Completion Day, as their claims concerned "accrued EU rights" which arose prior to IP Completion Day (even if they were asserted post-IP Completion Day).

What did the Volvo Decision hold?

Paragraph 61 of the Volvo Decision stated:

...it must be considered that the limitation periods applicable to actions for damages for infringements of the competition law provisions of the Member States and of the European Union cannot begin to run before the infringement has ceased and the injured party knows, or can reasonably be expected to know, (i) the fact that it had suffered harm as a result of that infringement and (ii) the identity of the perpetrator of the infringement." [Emphases added]

The CAT referred to the two requirements of Paragraph 61 of the Volvo Decision as the "Cessation Requirement" (in bold above) and the "Knowledge Requirement" (underlined above) respectively. In the Volvo Decision the Cessation Requirement was not considered in any detail as the facts of that case were not relevant. The judgment of the Volvo Decision thereafter only considered the Knowledge Requirement. Paragraph 61 of the Volvo Decision was not part of the operative part of the decision, or "Dispositif". In CJEU...