On appeal from: [2015] EWCA Civ 487

The Supreme Court unanimously allowed the appeal regarding whether the appellant regulator had jurisdiction to consider the acquisition by the respondent and Groupe Eurotunnel SA of various assets of SeaFrance following it’s liquidation in January 2012.

In delivering the lead judgment Lord Sumption stated that the Court of Appeal’s finding that the Authority’s evaluation was irrational was unjustified. The respondents acquired substantially all the assets of SeaFrance, including trademarks, goodwill, specialist vessels maintained in a serviceable condition, and substantially the same personnel. The Authority’s conclusion that this demonstrated “considerable continuity and momentum” and “the embers of an enterprise”, which could be passed to the respondents, was unimpeachable.

He also stated that the majority of the Court of Appeal was wrong to narrow the question of economic continuity to the legal effect of the decision of the French Court in January 2012 and whether this terminated the employment relationship between SeaFrance and its employees. The Competition and Markets Authority is not entitled to any special level of deference: the test for determining whether there is a “relevant merger situation” and relevant “activities” is a legal question. But the Authority undertook a broader economic analysis, concluding that there was economic continuity. That evaluation was complex and sensitive to a whole range of factors. It was not a purely legal enquiry. Its economic analysis should be respected.

For judgment, please download: [2015] UKSC 75
For Court’s press summary, please download: Court’s Press Summary
For a non-PDF version of the judgment, please visit: BAILII

To watching the hearing please visit: Supreme Court website