This article continues where we left off in our article of October 2013 on the subject of the buyout by Eurotunnel of Seafrance assets and in which we lamented the (too) high risk of conflicting decisions affecting cross-border concentrations within the EU. In order to remedy the differences of assessment – in this case between the French and the British authorities which had nevertheless cooperated and applied the same substantive rules to the same international merger – we would favor extending the possibilities of referral to the European Commission as recommended in the Zivy Report (see our blog entry of 10 March 2014).

Background: The French Competition Authority had, subject to behavioral undertakings, cleared the buyout of Seafrance’s vessels after the company was forced into liquidation, but the UK authority prohibited Eurotunnel from operating its ferries at the port of Dover unless it sold the vessels. On 4 December 2013, the issue of whether a merger is reviewable under the Enterprise Act 2002  was raised for the first time by the Competition Appeal Tribunal (CAT), which still upheld the prohibition. The legal battle went on and on 9 January 2015, the CAT once again upheld the prohibition to sail as of 9 July 2015. Eurotunnel had therefore resigned itself to selling its maritime subsidiary, MyFerrylink. As the sale was on the verge of taking place, the situation was turned on its head when on 15 May this year, the London Appeal Court, hearing an appeal brought by MyFerrylink, held that the UK authority was simply not competent to decide in the case insofar as the purchase of assets sold as part of liquidation proceedings did not constitute a concentration within the meaning of English law. The prohibition against MyFerrylink has therefore been annulled. The decision clearly opens new perspectives for Eurotunnel, although the UK competition authority has already announced that it is looking into a possible appeal to the Supreme Court. By a certain irony of fate (and subject to any such appeal), the authorization decision of the French competition authority should thus be fully reinstated.

The fact remains however that this case constitutes a perfect illustration of the adverse consequences caused by conflicting decisions. We therefore wholeheartedly encourage any approach aimed at solving the difficulties inherent in the implementation of simultaneous merger controls. The Zivy Report recommends allowing companies to request the referral of cross-border mergers to the European Commission whenever two national competition authorities are competent to deal with them (instead of three such authorities as is currently the case) as laid down in Article 4(5) of Regulation No 139/2004, or asking national competition authorities to apply the rules of European Union merger control law in all merger cases notifiable in at least two Member States in order to avoid differences both of interpretation in the application of national laws. Let us hope that the recommendations do not fall on deaf ears…