CMA application against Eurotunnel for an extension of interim relief dismissed By Court of Appeal

10/07/15

Following a successful appeal in the Court of Appeal against the Competition Appeal Tribunal’s dismissal of an application for judicial review of the CMA’s decision that its merger control powers extended to the acquisition of certain assets of the former cross-Channel ferry operator, SeaFrance SA, the CMA sought permission to appeal to the Supreme Court.  It sought an extension of the interim protective relief initially granted by the Court of Appeal in the form of an extension of the remedies order which was due to expire on 10^th July 2015 prior to a decision of the Supreme Court on the application for permission to appeal. Its purpose was to prevent Groupe Eurotunnel (‘Eurotunnel’) from further integrating its Channel ferry operations with its rail business.

Eurotunnel was not a party to the appeal (although it was an Applicant before the Competition Appeal Tribunal). It was, however, directly affected by the interim protective relief originally granted (which affected its business) and by the CMA’s application for an extension to that relief. Accordingly, Eurotunnel put in two sets of written submissions in respect of the CMA’s application contesting that the Court of Appeal had jurisdiction to extend interim relief and making certain submissions on the merits.

In the event after an oral hearing (at which only the CMA appeared) the Court of Appeal accepted Eurotunnel’s submissions on jurisdiction observing that the Court of Appeal had no jurisdiction to extend interim relief because it had already quashed that part of the remedies order that would have allowed the order to be extended beyond July 10^th. In those circumstances it was not possible for the Court of Appeal to revive that which it had quashed. If the Court had possessed jurisdiction it would have been appropriate to extend interim relief.