MasterCard’s Swipe Fees: Nobody Knows What’s The Right Fee
MasterCard is defending at least 20 damage claims totalling about $2 billion filed by more than 2,000 retailers in the U.K. Five claims were filed in the Competition Appeal Tribunal (“CAT”). The rest were filed in the U.K. High Court. The company’s swipe fees were found anticompetitive by the European Court of Justice in 2014 and recently by the U.K. Court of Appeal. Yet, the counterfactual played an important role to determine whether MasterCard’s fees could be justified under article 101.3 of the Treaty of Functioning of the European Union (TFEU).