MyFerryLink lives to fight another day

UK Competition Commission to reconsider Eurotunnel/MyFerryLink verdict.

Eurotunnel ‘delighted’. Port of Dover will ‘study carefully’. MyFerryLink ‘early Christmas present’.

DFDS ‘to continue operating and developing our two Dover routes’.

P&O ‘awaits eventual outcome with interest’.

Competition Commission ‘the Tribunal has found against us in on a legal point relating to the unusual circumstances of the acquisition.’

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D-Day Dover-Calais:

D-Day Dover-Calais: it’s unlikely to be business as usual after the Competition Appeals Tribunal publishes its long awaited decision today.

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BACKGROUND: On 29 October 2012, the UK’s Office of Fair Trading (OFT, the national competition authority) handed over to the Competition Commission its inquiry into Eurotunnel’s purchase of certain assets from SeaFrance.

On 6 June 2013 the Competition Commission issued a ruling requiring Eurotunnel to cease ferry operations at the Port of Dover and divest ferry assets. Following the ruling, Eurotunnel appealed to the Competition Appeal Tribunal.

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20:00 – interesting insight from industry executive @PaulDWoodbury, ‘Eurotunnel/MFL case hugely political. It has been hurled around Whitehall over the last 8 months like a grenade with the pin taken out… Whatever happens, MFL will exist on Dover Strait. The key for survival is to deliver consistent, exemplary service thus protecting rate.’

18:00 – a statement from DFDS in the UK, ‘Today, the UK Competition Appeal Tribunal decided that a further review is required of one aspect of the UK Competition Commission’s ruling on the Eurotunnel/MyFerryLink case.

Therefore, the case has been remitted to the Competition Commission for reconsideration of one question: the issue as to whether Eurotunnel acquired “assets” or an “enterprise” within the meaning of the Enterprise Act, which is important for the final decision.

“We do not know when a final decision will be made, but today’s ruling has further encouraged us to continue operating and developing our two Dover routes,” says Peder Gellart Pederson, head of the DFDS Shipping Division.

16:30 – the Competition Commission confirms it has one month to reopen the investigation else the matter is closed.

15:00 – full statement from the Competition Commission: ‘We have been supported by the CAT [Competition Appeal Tribunal] on many of the grounds on which the challenge was made – such as fairness of process, assessment of evidence and the choice of remedy. Where the Tribunal has found against us in on a legal point relating to the unusual circumstances of the acquisition, namely whether Eurotunnel had acquired an asset or an enterprise.

We will now study the judgment carefully and consider how best to address the issue remitted back to us for further consideration by the CAT.’

14:45 – the statement from MyFerryLink contains the best explanation of the word ‘jursidiction’ we’ve seen so far (confusing when the case has been considered by competition authorities in both UK and France): ‘The Competition Appeal Tribunal found that the Competition Commission did not have jurisdiction to investigate MyFerryLink as the acquisition of certain former SeaFrance assets did not constitute a merger.’

Managing director Robin Wilkins adds, ‘We are delighted with the ruling. We anticipate that this will finally enable us to build our business without further legal challenges.’

MFL’s statement also says the Competition Commission has one month to reopen the case, ‘If not then the matter is closed.’

13:50 – a spokesperson for the Competition Commission tells us it’s difficult to put precise timings on how long it will take to reconsider the case because they have to assess the amount of work involved, but it is ‘likely to take months rather than weeks’. We’re waiting on a full statement.

13:40 – Niels Smedegarrd, DFDS boss tells www.shippingwatch.com (reg) he’s confident of the eventual outcome: ‘There were 11 conditions that the British Competition Commission had to deal with before. Now there’s just one, and we are confident that the British Competition Commission will do a good job in this case.’

13:15 – @BBCSimonJones tweets, ‘The boss of #MyFerryLink says staff have been given an early Christmas present as Eurotunnel is cleared to carry on sailing.’

13:00 – A statement from P&O: ‘Our principal concern is running a successful business to serve our customers and to protect the jobs of our staff, best served by promoting vigorous competition on a level playing field. We await the eventual outcome of this process with interest.’

11:55 – the all-important reaction from DFDS is in though the rival Dover-Calais operator merely notes that, ‘Final decision on Eurotunnel’s operation of ferry services from Port of Dover delayed.’ This isn’t over.

11:50 – Dover MP @CharlieElphicke tweets, ‘Disappointed by Competition Appeal Tribunal decision on Eurotunnel & Myferrylink – bad for free & open competition on cross Channel travel.’

11:30statement from Port of Dover, ‘The Port of Dover will study carefully the Competition Appeal Tribunal judgment in order that it can fully assess its impact on the Port and its customers and the local community. We will seek to discuss the matter with our ferry customers.’

11:25 – RTL journalist @FAntson tweets, ‘My Ferry Link continue, le Pdg #Eurotunnel J.Gounon satisfait :”le consommateur est gagnant, cette compagnie a démontré son utilité” – ‘My Ferry Link continues, the CEO # Eurotunnel J.Gounon satisfied: “the consumer wins, the company has demonstrated its usefulness” – a comment from Eurotunnel chief Jacques Gounon.

official English translation: ‘This is a victory for the consumer. We are delighted by the Competition Appeal Tribunal’s decision which recognises the benefits and practicalities of our presence in the maritime cross-Channel market,’ says Jacques Gounon, chairman and CEO of Groupe Eurotunnel SA.

11:00 – Decision now published online. Closing statement: ‘Specifically, the Tribunal required the Commission to consider whether Eurotunnel/SCOP had acquired an “asset” or an “enterprise”. To that extent, and for that reason alone, the Tribunal quashed the Decision.’

10:30 – @BBCSimonJones tweets from the hearing, ‘Eurotunnel challenge against Competition Commission ruling that it can’t run ferries from Dover succeeds on one ground – jurisdiction,’ then, ‘Competition Commission ruling on Eurotunnel buying former SeaFrance Ferries quashed – issue of jurisdiction to be reconsidered.’

We queried what was meant exactly by jurisdiction – does this mean which of the two competition authorities get to decide on the case (the French authorities previously okayed the deal)?

@BBCSimonJones replied, ‘No, means that Competition Commission here must reconsider its decision.’

We’re still waiting for the judgement to be published online.

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