Judgment (Volvo Limitation)

Judgment of the Tribunal considering the implications of the European Court of Justice decision dated 22 June 2022 in Case C-267/20 Volvo AB and DAF Trucks NV v RM (the “Volvo Decision”) regarding:

• Question 1: As a matter of EU law, is it the case that limitation periods applicable to a claim for damages for infringements of provisions of EU competition law and/or of national competition law provisions of EU Member States by reason of MIFs set for payment card schemes begin to run from the time when the infringement of competition law has ceased?
• Question 2: As a matter of EU law, is it the case that such limitation periods cannot begin to run before the claimant knows, or can reasonably be expected to know, the information necessary to bring the claim?
• Question 3: Should the Tribunal follow the judgment of the CJEU in the Volvo Decision, pursuant to section 6 of the European Union (Withdrawal) Act 2018 (the “2018 Act”) and/or because the claims concern accrued EU law rights? If not, to what extent should the Tribunal have regard to the Volvo Decision?
• Question 4: As regards claims referred to in question 1, what is the effect of the answers to the questions above on: (i) the limitation regime applicable to such claims governed by English law?; (ii) the prescription regime applicable to such claims governed by Scots law?
• Question 5 (which was advanced on behalf of the Merricks Class at a late stage): Do the different positions of Merricks class members under Scottish prescription and English limitation law amount to inconsistent treatment of persons in the same position, requiring less favourable English law limitation periods to be disapplied to put all members of the Merricks Class in the same position (being the treatments applying under Scottish law)?

The Tribunal unanimously decided that:

• The Volvo Decision is not authority that, as a matter of EU law, limitation periods for competition law infringements cannot start to run before the time when the infringement of competition law has ceased. Question 1 is therefore answered in the negative.
• The Tribunal declined to answer Question 2, on the basis that it did not understand the parties to assert that the Volvo Decision amounted to a distinct expansion of the law of limitation regarding knowledge.
• Given the Tribunal’s answers to Question 1, Question 3 does not really arise. However, assuming that the answer to Question 1 was ‘Yes’, then the answer to Question 3 would be that the Tribunal is not bound by the Volvo Decision nor should it be followed in this respect.
• Noting the Tribunal’s answer to Question 2, the Tribunal’s answers to Questions 1 and 3 mean that there is no effect on either the English law limitation regime nor the Scots law prescription regime.
• The Tribunal rejected the proposition that the principles of equal treatment and non-discrimination required consistent application of the same limitation law, in the context of the devolved constitutional structure of the United Kingdom. Question 5 is therefore answered in the negative.

In its consideration of Question 1, the Tribunal concluded that the question of the cessation of the infringement could not be regarded as an essential foundation or indeed a foundation at all, of the operative part of the Volvo Decision. To the extent that the CJEU expressed a view on the significance of cessation of the infringement in the context of the effectiveness of national limitation laws, it was not binding.

In the Tribunal’s consideration of Question 3, it rejected the merchant claimants’ contention that the Volvo Decision was binding on UK courts in just the same way as it would have been binding prior to the UK’s exit from the EU. The merchant claimants contended that that: (i) there was a distinction between retained EU law and accrued EU law rights; (ii) their claims did not form part of retained EU law but constituted accrued EU law rights; and (iii) their accrued EU law rights were governed by EU law incorporated into UK law by virtue of the European Communities Act 1972 and protected by section 16 of the Interpretation Act 1978. As such, these rights remained subject to EU law unaffected by the withdrawal legislation and would develop organically as part of the development of EU law within the EU.

The majority reasoned that, following the UK’s exit from the EU, sections 2, 3 and 4 of the 2018 Act replaced the ‘gateway’ under the European Communities Act 1972 for EU law to flow into the UK legal system with the translation into domestic law of the relevant body of EU law as it stood immediately before the UK’s exit from the EU. Section 4 of the 2018 Act, which extends to past rights, powers, liabilities, obligations, restrictions, remedies or procedures, has sufficiently wide wording to transfer enforceable EU rights and causes of action that arise out of enforceable EU rights, which accrue before IP completion day, so that they continue to be recognised and available under UK law on and after IP completion day. Although the 2018 Act leaves substantive rights unchanged, it fundamentally alters the procedural manner in which such rights are enforced. By section 6 of the 2018 Act, Parliament has made it clear that, following the UK’s exit from the EU, the development of such substantive rights becomes a matter not for the CJEU but for UK courts. The requirements of section 16 of the Interpretation Act 1978 are met by this and other provisions which deal with the changes to the procedure for bringing and maintaining claims accruing before the UK’s exit.

In a concurring judgment as regards the effect and application of the Volvo Decision, Mr Justice Roth set out his minority reasoning that the statutory scheme as a whole has converted or translated rights accrued under EU law into rights under retained law through adopting the entire body of EU law in all its manifestations in domestic law, subject only to very specific exceptions, while giving the Government broad powers to remove or adapt specific provisions of that new domestic law by secondary legislation. The body of EU law adopted into domestic law or maintained as part of domestic law was designated compendiously by section 6(7) as “retained EU law”. The conversion of accrued rights under EU law into rights under retained EU law may have the effect of modifying some of those rights and parts of the 2018 Act make that clear, in accordance with section 16 of the Interpretation Act 1978. Section 6 of the 2018 Act is engaged as regards the application of the decisions of the CJEU after the UK’s exit from the EU, which means that the Tribunal may have regard to, but is not bound by, the Volvo Decision

The Tribunal also unanimously rejected the card scheme defendants’ secondary contention that the putative effect of the Volvo Decision could be avoided by virtue of section 60A of the Competition Act 1998 (the “1998 Act”). Like the original (now repealed) section 60 of the 1998 Act, section 60A does not extend to Articles 101 and 102 TFEU, irrespective of whether those provisions have been converted into retained EU law by the 2018 Act.