The Competition and Markets Authority (CMA) has said it will seek permission to appeal a decision by the Court of Appeal last Friday (15 May) which overturned a ban on Eurotunnel-owned and RPC-client MyFerryLink’s right to operate between Dover and Calais.
The company was told in January it must quit the cross-Channel ferry market following a ruling by the Competition Appeal Tribunal on the basis that its acquisition of the former SeaFrance operation in 2013 would damage competition.
Last Friday (15 May) in a two to one majority decision, the court ruled the CMA, which is responsible for the control of mergers in the UK, does not have jurisdiction over Eurotunnel’s acquisition of the former SeaFrance operation between Dover and Calais.
Representing the appellant on Friday was Monckton Chambers’ duo Daniel Beard QC and Rob Williams who were instructed by RPC for Société Coopérative de Production SeaFrance.
Monckton Chambers’ Paul Harris QC and Ben Rayment represented the CMA, and finally Monckton Chambers’ Meredith Pickford QC and Ligia Osepciu were instructed by Hogan Lovells for the second respondent DFDS Seaways, a competitor of MyFerryLink which operates ferries to France and Holland.
The CMA argues it should protect the interests of passengers and freight customers given that Eurotunnel runs a ferry service on the short sea route as well as a competing rail link. The CMA is also seeking greater legal clarity ‘for the wider benefit of the UK merger regime’.
In a statement myferrylinks said: “We continue fundamentally to disagree with the CMA on a number of critical points. First and foremost we do not consider that the CMA has jurisdiction to review the transaction as a matter of UK merger law. It is also manifestly the case that the CMA’s decision, which will reduce choice, is bad for consumers, bad for competition and bad for all those involved in cross-Channel operations (staff, employees, customers and the wider regions in both Dover and Calais).”
The application will be made to the Court of Appeal although if granted the appeal would be heard in the Supreme Court.