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On Wednesday, the Competition Appeal Tribunal handed down a judgment that is particularly significant for its analysis of the European Union (Withdrawal) Act 2018 (the “2018 Act”) and the scope of retained EU law.

The Tribunal was asked inter alia to (i) interpret a judgment of the Court of Justice of the European Union (“CJEU”) which post-dated IP Completion Date, i.e., the UK’s departure from the EU (the Volvo Decision”); and (ii) consider whether they were obliged to follow that judgment. The Claimants submitted that the Volvo Decision was authority for the proposition that, as a matter of EU law, a limitation period in competition cases can only start to run from the time when the infringement ceased. The Tribunal rejected that submission (§33). The Tribunal nonetheless went on to consider whether they would have been bound to follow the Volvo Decision if it had had the meaning contended by the Claimants.

The Claimants submitted that their claims, which arose from facts that pre-dated IP Completion Date, were “accrued EU law rights”. They submitted that such rights should develop organically as part of the development of EU law – not as part of the development of English law in accordance with the 2018 Act – and that post-IP Completion Date CJEU decisions such as the Volvo Decision were thus binding on the courts of the UK as regards determination of “accrued EU law rights” claims (§§50-51). The Defendants submitted that claims advanced post-IP Completion Date formed part of retained EU law and had to be determined in accordance with the 2018 Act, which made clear that post-IP Completion Date CJEU decisions were not binding (§49).

The Tribunal rejected the Claimants’ contention. The majority held that the UK’s transposition from an EU Member State to third country meant that the “entire legal order has undergone a paradigm shift”. This involved translation of EU law into English law but no “repeal” of EU law itself. The substantive EU law rights themselves were retained as part of English law and “accrued EU law rights” were “no such thing and do not in law exist”. Therefore, even if the Volvo Decision had had the meaning contended by the Claimants, the Tribunal would not be bound to follow it (§§69(2), (3), 70, 72). The majority noted that they could, under s.6(2) of the 2018 Act, “have regard” to the Volvo Decision and in doing so confirmed that they would not have followed it even if it had had the meaning contended by the Claimants (§73).

The judgment is available here and the Tribunal’s unofficial summary is available here.

Timothy Otty KC and Naina Patel appeared for the Mastercard Defendants. Jason Pobjoy and Isabel Buchanan appeared for the Visa Defendants.

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