Société Coopérative De Production Seafrance S.A. v Competition and Markets Authority

The Court of Appeal may continue interim protection only within a jurisdiction conferred by statute or procedural law. A stay of a quashing order cannot revive or extend the temporal operation of an underlying remedies instrument after that instrument’s own expiry date. Nor may the court authorise a public authority to continue conduct which the court has held it lacked power to undertake, unless legislation permits that course. The judgment also noted, without deciding, constitutional questions concerning such authorisation. The CMA’s application was dismissed.

The application arose after the Court of Appeal had allowed the appellant’s appeal against the Competition Appeal Tribunal’s dismissal of its challenge to the CMA’s merger determination and had quashed the relevant reports and Remedies Order. The earlier appeal had held, by a majority, that the CMA was irrationally wrong to find that the acquired SeaFrance activities had come under the ownership or control of the appellant and that no relevant merger situation had arisen.

The CMA sought continued interim anti-integration measures pending determination of its application for permission to appeal to the Supreme Court, and any subsequent appeal. The measures concerned three vessels and the separation of the MyFerryLink and GET businesses. The central issue was whether the Court of Appeal had jurisdiction to continue the measures after the Remedies Order’s prescribed end date.

1. Application dismissed. The Court of Appeal held that it lacked jurisdiction to continue the interim measures sought by the CMA, and made no order as to costs.
2. The Remedies Order itself provided that the relevant Schedule 2 measures operated only during the specified period ending on 10 July 2015. The court’s earlier stay of the quashing order preserved those measures only for that period. A further stay could not extend the life of the underlying order or alter its temporal limits.
3. Section 84 of the Enterprise Act 2002 empowered the CMA to vary or revoke the Remedies Order, but the court was not shown any jurisdiction enabling it to do so. The court could not revive the quashed order, including its extension power, Article 9, so that the CMA could prolong the specified period.
4. The CMA’s reliance on rule 61 of the Competition Appeal Tribunal Rules 2003 and section 15(3) of the Senior Courts Act 1981 failed. Rule 61 conferred interim powers on the CAT in proceedings before it. Section 15(3) gave the Court of Appeal the authority and jurisdiction of the court or tribunal below for the hearing and determination of the appeal and for amendment, execution and enforcement of its judgment or order. It did not confer jurisdiction to grant the relief sought in these circumstances.
5. Sir Colin Rimer considered that continued protection might in principle have been appropriate for the Rodin and Berlioz, because of the unexplained terms of the proposed transaction with DFDS and the risk of reversion to GET. He reached a similar provisional view concerning the Nord Pas-de-Calais, having regard to the Competition Commission’s earlier findings about possible circumvention. Those views could not overcome the jurisdictional obstacle.
6. Lady Justice Arden added that the court had not been addressed on whether it could authorise the CMA to do what the court had held it lacked power to do. Referring to Secretary of State for Work and Pensions v Payne and Cooper [2011] EWCA Civ 492, she identified a constitutional difficulty in authorising conduct contrary to the law laid down by the court. She also noted, without deciding the issue, that Ahmed v HM Treasury [2010] 2 AC 534 raised further questions about suspending an order where the suspension might mislead as to the legal position.

• Court of Appeal (Civil Division): In the earlier appeal, the court allowed the appellant’s challenge by a majority and quashed the Competition Commission report dated 6 June 2013, the CMA report dated 27 June 2014 and the Remedies Order dated 18 September 2014. The earlier judgment is identified as [2015] EWCA Civ 487.
• Competition Appeal Tribunal: By order dated 9 January 2015, the CAT dismissed the challenge to the CMA’s determination. No neutral citation for that decision is stated in the judgment.
• Court of Appeal (Civil Division): The present application for continued interim relief was dismissed, with no order as to costs.