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The CMA notes the recent judgment by the Court of Appeal upholding a challenge to its ability to bar Eurotunnel from running its MyFerryLink service out of Dover.

The Competition and Markets Authority (CMA) will study the judgment carefully and consider its next steps.

The SCOP (Société Coopérative de Production de SeaFrance S.A.), the workers’ collective operating the MyFerryLink service on behalf of its owner Eurotunnel, had argued that when, in 2012, the companies acquired the 3 ferries and related assets of the former SeaFrance operation (now liquidated) and recommenced a ferry service on the Dover–Calais route under the MyFerryLink brand, this should not be treated as a merger under the UK merger control rules.

By a 2 to 1 majority decision, the Court of Appeal recently upheld the appeal by the SCOP.

The background to this decision is that in June 2013 the CMA’s predecessor, the Competition Commission, had decided that a merger had occurred and that having Eurotunnel running a ferry service on the short sea route as well as the competing rail link would damage competition in the markets for passenger and freight customers. It ruled that the current level of competition on the Dover–Calais route was unsustainable and likely to leave Eurotunnel as owner of 1 of 2 competing ferry services as well as the rail link.

That decision was challenged before the Competition Appeal Tribunal, who upheld the finding on competition, but remitted for reconsideration the question of whether the particular arrangements in this case met the statutory definition of a merger. The CMA subsequently decided that it considered they did meet the statutory definition of a merger and that decision was then upheld by the Competition Appeal Tribunal, but has now been overturned by the recent judgement.

For all information relating to this case please visit the case page.