Sainsbury's v Visa: Court Of Appeal Set To Get MIFfed

On 30th November 2017 the High Court handed down a decision in a claim by Sainsbury's Supermarkets against Visa1, in the long running and complex saga relating to Multilateral Interchange Fees (MIFs) in the payment card industry. Here the court found that Visa's UK MIFs were not anticompetitive in principle. This conclusion seems to stand in contrast with other recent decisions across the MIF litigation saga.

These contrasting decisions will now need to be picked through by the Court of Appeal in joint hearings together with Mastercard, scheduled to take place in April 2018.

In this particular case, Mr Justice Phillips found that Visa's UK MIFs were not anticompetitive in principle, contrasting with an earlier decision in the High Court brought by a number of retailers, including Sainsbury's, against Mastercard (the Arcadia case)2, a decision on which we have briefed previously, where it was held that Mastercard's UK MIF were intrinsically unlawful restrictions of competition.

Again, in contrast to the Arcadia decision, Mr Justice Phillips opined that even if Visa's UK MIFs were a restriction of competition, he would not have regarded the MIFs as objectively necessary.

This decision, like Arcadia, also seems to be at odds with the decision of the Competition Appeal Tribunal (CAT) in Sainsbury's Supermarkets Ltd v MasterCard Incorporated and Others (the Mastercard CAT case)3.

The counterfactual

Phillips J, consistent with Mr Justice Popplewell in Arcadia, departed from the approach taken by the CAT in the definition of the appropriate counterfactual - that is, what circumstance would have existed in the absence of the allegedly infringing agreement. The counterfactual is used to determine whether the agreement restricts competition by comparison with those circumstances.

The counterfactual adopted in the Mastercard CAT case was that voluntary ex ante bilateral agreements would have been reached between the issuing and acquiring parties. In this case, the court gave short shrift to that argument, holding that the relevant counterfactual was a no-MIF world where no bilateral agreements would be reached. The absence of bilateral agreement was also a feature in Popplewell J's judgment in the Arcadia case.

Principal to this conclusion was the 'free-rider' argument: in a no-MIF world, no sensible merchant would sign up to a bilateral agreement because their competitors could achieve a better deal at their expense. Additionally, it was noted that...