Channel RoRo Freight and Passenger Ferry Legal Case Sails Seemingly Endlessly On

UK – FRANCE – Apologies to Wm. Shakespeare but the story of Eurotunnel’s MyFerryLink RoRo freight and passenger ferry service just won’t lie down. We have covered the potential demise and subsequent closure of SeaFrance since 2009 and yet controversy over the company’s three vessels continues to this day. As with Henry V’s famous Agincourt speech, the UK Competition and Markets Authority (CMA) has announced it is to 'Cry God for Harry, England, and Saint George!' and try to reverse the latest decision of the Court of Appeal which was announced last week (May 15).

That judgement, the last in a series of cases and appeals, saw the Société Coopérative de Production de SeaFrance S.A. (SCOP), principally consisting of ex workers of the bankrupt SeaFrance service and now helping run MyFerryLink, win a notable victory in the UK Court of Appeal, causing Eurotunnel pause for thought as to whether to proceed with the sale of MyFerryLink assets to a competitor, a decision made at a time when it seemed the company’s future had foundered on the legal rocks.

Now the fight is to continue with the CMA contesting the decision of the Court which ruled the CMA did not have jurisdiction in this epic case. Whilst the initial hearing to reverse this situation will once again be presented before the Court of Appeal, a granting of leave to appeal will mean the case itself is heard before the Supreme Court – surely the last resting place for a situation which first arose when the French state rail authority, SNCF, and owners of SeaFrance, announced 650 redundancies for SeaFrance workers six years ago.

At that time industrial action by the seafarers and office staff caused SNCF to issue an ultimatum that there would be no bail out for the ferry service if the planned cuts were not accepted by the unions. From that point things deteriorated and it was only after SeaFrance closed that Eurotunnel stepped in, causing the UK competition authorities at the time to view this as a case of too few operators controlling the cross channel trade.

The CMA says it is concerned to protect the interests of passengers and freight customers given its conclusion that Eurotunnel running a ferry service on the short sea route as well as the competing rail link would damage competition. The CMA’s competition assessment was not challenged in the Court of Appeal or in the previous Competition Appeal Tribunal (CAT) appeal. The CMA also took into consideration that its decision on jurisdiction had previously been upheld by the CAT and was supported by one of the three judges on the Court of Appeal panel.

In seeking permission to appeal, the CMA is also seeking greater legal clarity for the wider benefit of the UK merger regime, with a view to preventing such an issue arising in the future. The question being at what point does the purchase of assets of a defunct organisation stop being a merger and become simply a logical move in a market? SCOP’s view that the SeaFrance asset deal was not a merger is one of the key the legal points upon which this seemingly never ending case hinges.

One piece of good news for Eurotunnel, MyFerryLink and indeed cross channel customers, is that the CMA will also request that the Court of Appeal suspends the effect of its current order so that Eurotunnel will no longer be barred from running the MyFerryLink service out of Dover from July, although in view of the recent verdict it is hard to see why they should have ceased the service regardless of the CMA view.

The result for freight and passengers wishing to use the service is that, whatever the Court of Appeal decides, the time it will take to finalise the matter will certainly extend beyond the busy summer season. The fact that Eurotunnel controls both the undersea link and one of the ferry services has in fact proved useful for many customers as the management has the option of switching passengers from tunnel to ferry, in case of subsea problems, and from ferry to tunnel at times of inclement weather or mechanical failure.

Readers wishing to know the whole story can simply type SeaFrance into the News Search box at the head of the page.