One Final Chance as RoRo Freight and Passenger Ferry Service Wallows in the Water

FRANCE – UK – The Société Coopérative de Production SeaFrance S.A. (SCOP), the organisation set up by ex SeaFrance staff and designated to manage the operations of MyFerryLink, the cross channel RoRo freight and passenger service owned by Groupe Eurotunnel, has had its appeal against closure of the service refused by the UK Competition Appeal Tribunal (CAT) in a judgement published yesterday.

After Eurotunnel’s decision to sell the service, rather than try for yet another appeal, the last chance of its survival rests with the SCOP appeal and the decision to refuse it was welcomed by the UK’s Competition and Markets Authority (CMA) which said it upheld its own recent judgement.

SCOP appealed on the grounds that merger control can only exceptionally apply to a business which was no longer a going concern, which SeaFrance appeared to many to be. This however was inconsistent with the facts investigated by the original case Eurotunnel 1 which decided that the bare bones of SeaFrance, i.e. ships and a large portion of staff, consisted of ‘an enterprise’. The CAT therefore backed the CMA decision that there had been a continuity inconsistent with a totally defunct operation.

As for the future SCOP can only now continue the case via the Court of Appeal, but the judgement this week made clear that the CAT felt that the SCOP appeals so far had been misdirected. For the CAT the key test rests on the phrase as to whether there was ‘a momentum or continuity in the combination between the vessels and workforce that takes this case over the line from an asset acquisition to the acquisition of an enterprise’. The judgement in full can be read using the links here.