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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Société Coopérative De Production Seafrance S.A. v Competition and Markets Authority [2015] EWCA Civ 768 (10 July 2015) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2015/768.html Cite as: [2015] EWCA Civ 768

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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
THE COMPETITION APPEAL TRIBUNAL
(MR JUSTICE ROTH)

		Royal Courts of Justice Strand London, WC2A 2LL
		10 July 2015

1. LADY JUSTICE ARDEN: I will ask my Lord, Sir Colin Rimer, to give the first judgment.
2. SIR COLIN RIMER: On 15 May 2015 this court handed down its judgment on the appeal by Société Coopérative de Production SeaFrance SA ("the SCOP") against the dismissal by the Competition Appeal Tribunal ("the CAT") by its order of 9 January 2015 of the challenge by the SCOP and Groupe Eurotunnel SA ("GET") to the determination by the Competition and Markets Authority ("the CMA") by its Report dated 27 June 2014 that a "relevant merger situation" for the purposes of the Enterprise Act 2002 had arisen as a result of the acquisition in 2012 by GET in association with the SCOP of three vessels (the Rodin, the Berlioz and the Nord Pas-de-Calais) and other assets from liquidator of the insolvent SeaFrance SA.
3. The effect of the CMA's determination was to reinstate the findings of its predecessor, the Competition Commission ("the Commission"), in an earlier report of 6 June 2013 in which the Commission, having also determined that a "relevant merger situation" had arisen, had proceeded to exercise its claimed jurisdiction by finding that the creation of such a situation might be expected to result in a "substantial lessening of competition" ("SLC") within the market for the supply of transport services on the "short sea", namely the Dover/Calais crossing, and that there was an anti-competitive outcome. The lawfulness of that prior determination by the Commission had also been the subject of challenge by the SCOP and GET before the CAT and the CMA's subsequent 2014 report was the fruit of a remittal to it for further consideration made to it by the CAT upon those appeals. Having made the finding in its 2014 report as to there being a "relevant merger situation", the CMA also proceeded to exercise its claimed jurisdiction by making a Remedies Order on 18 September 2014, one directed at remedying, mitigating or preventing the risk of the SLC that the Commission had earlier found.
4. The outcome of the appeal to this court was that by a majority, Arden LJ dissenting, the court allowed the SCOP's appeal. The court held that the CMA had been irrationally wrong to find that SeaFrance's "activities" had come under the ownership or control of GET/SCOP and that therefore it had no jurisdiction to find that a "relevant merger situation" had arisen. It followed both that the 2014 report did not reinstate the earlier findings by the Commission that a situation had arisen that might be expected to result in an SLC and that the CMA had no jurisdiction to make the Remedies Order. I add (i) that DFDS A/S had intervened in the SCOP's appeal in order to support the CMA's resistance to it, and (ii) that whilst GET had also been an unsuccessful appellant before the CAT against the CMA's 2014 determination, it had not renewed its challenge in the Court of Appeal. The court's order on the appeal, however, operated to GET's benefit.
5. I shall not rehearse the issues the subject of the court's decision on the appeal but shall, for present purposes, being the consideration of an interim application by the CMA, take the court's judgments as read: they are publicly available on BAILLI (see [2015] EWCA Civ 487). Following the hand-down of those judgments and the receipt by the court of written submissions from the parties, the court made an order dated 15 May 2015 of which the main substance was as follows. By paragraph 1, it allowed the SCOP's appeal. By paragraph 2, it set aside the order of the CAT in paragraph 97 of its judgment of 9 January 2015. By paragraph 3, it quashed (i) the Commission's report of 6 June 2013, (ii) the CMA's report of 27 June 2014 and (iii) the Remedies Order of 18 September 2014. By paragraph 4, it refused the applications by the CMA and DFDS for permission to appeal to the Supreme Court. By paragraph 5, it granted interim relief to the CMA, to which I shall return, but which was, in short, directed at giving limited protection to the CMA pending the disposal of its proposed application for permission to appeal to the Supreme Court. Finally, by paragraphs 6 to 13 inclusive, the court made orders in relation to the costs of the SCOP's appeals to the CAT and to this court, to which it is unnecessary to refer.
6. Before returning to paragraph 5 of the court's order, I shall summarise the essential effect of the Remedies Order. Article 2 prohibited GET from operating ferry services from Dover with any of the three vessels for a period of two years from (in the events that happened) 10 July 2015, which is today, and, as regards the Rodin and the Berlioz, for a period of ten years from that date. Those prohibitions are referred to in the Order as "the Prohibition Remedy". The Order provided for them to come into effect six months after the "Effective Commencement Date", being the day following the final determination by the CAT of GET's and the SCOP's challenges to the CMA's 2014 report. That six-month period therefore began to run on 10 January 2015, with the consequence that the Prohibition Remedy was destined to take effect today. In the meantime it was open to GET, under Article 3, to sell or lease the vessels to a purchaser or lessee approved by the CMA, that is to say one that was independent of GET and on terms that would not raise additional or other competition concerns. The consequence of any such sale or lease would be to modify the potential effect of the Prohibition Remedy.
7. The provisions of direct present relevance are in Article 5 of, and Schedule 2 to, the Remedies Order. These imposed interim measures directed at preventing the integration of the GET and MyFerryLink SAS ("MFL") businesses during a defined "Specified Period", which means, again in the events that happened, the period from 10 January 2015 to today, which is when the Article 2 Prohibition Remedy was due to take effect. The interim measures included (inter alia) a requirement for the MFL business to be carried on separately and under a separate brand identity from GET's business and the maintenance of separate sales; a bar on any further integration of the information technology systems of MFL with those of GET; the operation and updating of separate customer lists for the MFL and GET businesses; and a bar on the flow of confidential information between MFL and GET. The explanation behind these provisions was the CMA's assessment that if GET and MFL were to become integrated at a business information level, the SLC that the Commission had assessed was likely to be caused by what it had held to be a "relevant merger situation" was likely to come to pass; and, if the CMA obtains leave to appeal to the Supreme Court and succeeds in its appeal and is then able to enforce the Remedies Order in full, it asserts that any such integration at the business information level that may in the meantime by then have taken place will be impossible to undo. To that extent, it claims that the public interest in achieving the avoidance of the SLC that had been determined by the Commission's report will or may be materially affected.
8. Arguments to this effect were advanced to the court following the hand-down of its judgments and the court accepted that they were of sufficient force to justify the grant of limited protection for the CMA during the currency of its proposed application for permission to appeal to the Supreme Court, although the court did not assume that such protection would survive until after the disposal of that application. Whilst, therefore, the court made the quashing orders to which I have referred, including of the Remedies Order, it also imposed a limited stay of such quashing by paragraph 5 of its order, which reads as follows:

"Until and including 10 July 2015 or the determination by the Supreme Court of any application for permission (whichever first occurs), the quashing of the following provisions in Schedule 2 to the Remedies Order is stayed - namely paragraph 1, paragraph 2(a), paragraphs 2(d), 2(e), 2(f), 2(g) and paragraph 3, with Schedule 2, paragraph 2(f) to be applied as if the words 'in accordance with the requirements of Article 2' were deleted. For the avoidance of doubt, it will be for the CMA to seek from the Supreme Court, if so minded, any continued stay of the quashing of the Remedies Order pending the determination of any appeal for which permission may be given. In the event that it appears unlikely that any decision from the Supreme Court as to permission will be received before 10 July 2015, the CMA is at liberty to apply to the Court of Appeal on notice to the other parties on an oral hearing for any further interim protective relief to which it considers it ought to be entitled."

9. The significance of the cut-off date of 10 July for the operation of the stay was that that was the end date prescribed by the Remedies Order for the operation of the interim measures: see Article 5.1 and paragraphs 1 and 2 of Schedule 2. In the CMA's skeleton argument for this application, it is suggested that the court's choice of 10 July 2015 in paragraph 5 was only coincidentally the same as that cut-off date. It was not. It was deliberately chosen as being the prescribed end date for the operation of the interim measures.
10. The CMA lodged its permission application to the Supreme Court on 12 June but the application has not yet been determined. At some point, DFDS also lodged its own application for permission.
11. The CMA accepts that, in consequence of the decision of this court, and pending what it hopes will ultimately be a successful appeal to the Supreme Court, GET should not in the meantime be subject either to the prohibition remedy in Article 2 of the Remedies Order or to the purchaser and lessee approval requirements in Schedule 1. Its acceptance in this respect is, however, subject to its contention that the court should in the meantime at least continue the interim anti-integration business provisions whose quashing is currently, but only until today, stayed by paragraph 5 of this court's order.
12. Such continuation is sought by the CMA's present application to this court, made by an application notice dated 6 July. We heard the application on 8 July. At the conclusion of the argument, we sought assistance by way of written submissions on certain further matters from Mr Harris QC, who appeared with Mr Rayment, for the CMA. We received those submissions yesterday, 9 July, and this is our judgment on the application.
13. The claimed need for the continued protective relief has arisen in the light of a number of events that have taken place since the court's order of 15 May 2015. They are summarised in the CMA's skeleton argument essentially as follows:

(a) On 28 May, GET gave notice to the SCOP that it would be terminating the SCOP's contract to operate the vessels with effect from 2 July 2015;

(b) On 22 June, GET and DFDS publicly announced that GET had accepted an offer from DFDS for the Rodin and the Berlioz, to take effect from 2 July. According to the press announcement, the agreement is for a "bareboat" charter of both vessels, with a put option expiring at the latest in mid-2017 entitling GET to require DFDS to purchase both vessels.

(c) GET has announced that it would like to retain the freight-only vessel, the Nord Pas-de-Calais, and on 9 June it asked the CMA to suspend the interim measures in relation to the integration of the vessel into the GET business.

14. On 24 June, DFDS wrote to the Supreme Court asking for permission to withdraw its application for permission to appeal.
15. The CMA has been monitoring these events because it has been concerned as to the extent to which they require a continuation beyond today of the interim relief currently in place. To increase its understanding of the present position, it has made a number of information requests of GET and DFDS relating to the transactions, some of which remain outstanding. In particular:

(a) Requests for copies of the agreements between GET and DFDS relating to the Rodin and Berlioz have not been answered. As a result, the CMA says that it is unable to assess them, to understand what the termination provisions are or whether there are any non-competition clauses in view, in particular, of GET's proposal to continue to own the Nord Pas-de-Calais. The bottom line is that the CMA is unable to assess whether GET might be able to re-acquire the two vessels during the prohibition period and so retain the risk of the SLC found by Commission;

(b) The CMA asserts that it has also been unable to obtain any information as to GET's plans for the Nord Pas-de-Calais. It is therefore also unable to understand the competition implications of GET's continued ownership of that vessel, including its future operation, perhaps with other vessels, a situation which the initial two-year prohibition period in the Remedies Order was intended to address.

16. As regards the Berlioz and Rodin, the CMA knows, therefore, from press releases and information given to it by GET that there is a proposal to grant demise charters to DFDS of the two ships and also a proposal to sell them to DFDS at a later date, subject in that latter regard to obtaining the necessary consent from the French court. The public information about the transaction is that the intention was that DFDS would start providing ferry services with the ships from 2 July. The CMA's expressed anxiety is that whilst it has asked GET for copies of the documentation relating to the transaction, GET has refused to provide it. The CMA's concern is that, for all it knows, such documentation may contain provisions, including for termination, that would or might result in the reversion of the ships to GET, in which event the risk of the SLC found by the Commission would or might come about. By a letter of 30 June, GET's solicitors informed the CMA that the press releases about the transaction were all it needed, and that "GET does not consider it necessary to provide the CMA with any of the documentation relating to GET's agreements with DFDS, nor indeed with any further information relating to them."
17. The CMA views with concern such unexplained need for secrecy. What the present application comes down to as regards the Rodin and the Berlioz is that, in the absence of the provision of the requested information, the CMA asserts that it is unable to assess whether, following a successful appeal to the Supreme Court, it would wish to implement the Remedies Order. Its position, therefore, is that until such time as it is able to make such an assessment, the protective interim measures ordered by paragraph 5 of this court's order should continue in force beyond today. If they are not, the CMA's claimed concern is that there will be nothing to prevent information flows and/or other integration taking place between GET and MFL, the effects of which might be irreversible. Its concern as to the position in relation to these two ships is not reduced by the fact that in GET's written submissions to the court, to which I shall come, it is said that both ships are currently in Calais where they are illegally occupied by former employees of the SCOP who are protesting against the charter of the ships to DFDS because of their concerns about their loss of employment.
18. The SCOP, which has been given notice of this application, has indicated that the matters it raises are primarily of concern between the CMA and GET. Having been assured that the CMA will not seek any costs of this application against it, the SCOP was neither represented at the hearing of this application, nor did it make written submissions.
19. GET was not a party to the appeal to this court but has made written representations in response to the CMA's application in a document prepared by Mr Richard Gordon QC. It was also, however, not represented at the hearing. It has made no submissions in relation to the future of the Rodin and the Berlioz and is content to leave that aspect of the CMA's application to the decision of the court. Its written submissions were confined to the Nord Pas-de-Calais ("the NPC").
20. GET opened its submissions by making the general point that the history of this case to date, which ended in the CMA's failure in this court, has had a serious adverse commercial impact on it and says that in the circumstances good reason now needs to be shown why the paragraph 5 order, at least as regards the NPC, should extend beyond today.
21. More particularly, it criticises the CMA's application as unspecific and generalised and notes that the highest that the CMA puts its case is that it is "possible" that it may wish hereafter to implement the Remedies Order if it is ever in a position to do so, a statement modestly expanded by the observation in the CMA's skeleton argument to the effect that it would only be likely to wish to do so "if the CMA were to conclude that GET's continued ownership and control of the vessel were liable to raise competitive concerns which the Remedies Order was intended to address."
22. GET then addresses its submissions to the single question of whether the CMA has identified reasons sufficient to justify the continuation of the interim restrictions as regards the NPC. It notes first that, if and when the Supreme Court were to decide any appeal in the CMA's favour, the passage of time by then might have rendered it inappropriate for the CMA to address any then prevailing competitive situation. The CMA would need to consider afresh whether any change in circumstances necessitated new or different remedies. The continuation of the existing interim protection is not, it says, justified by way of the mere possibility that the CMA might wish to enforce the current Remedies Order.
23. More substantively, GET submits that there are no credible competition concerns about the integration of the NPC with GET's operations, the NPC currently having only about a 4% share of the short sea freight market and no share of the passenger market. DFDS, which was the principal complainant of GET's acquisitions of the three vessels in the first place, is said to have confirmed to the CMA and the press that it has no concerns as to GET's proposed operations of the NPC. GET also refers to the Commission's 2013 report in which it assessed that the minimum efficient scale in order to compete effectively on the short sea freight and passenger markets was two fully operational ships and access to one additional back-up ship. GET suggests that the CMA cannot seriously consider that GET's operation of one vessel is likely substantively to lessen competition in the short sea freight market.
24. GET notes the CMA's expressed concern that it might acquire another freight vessel to operate alongside the NPC, a possibility that GET accepts it has not ruled out. If, however, such a turn of events were to give rise to legitimate competition concerns, it says they would have to be addressed by the CMA if and when they do. The integration of the NPC into GET's business in the meantime would not prevent the CMA from doing so. GET's proposed integration of the NPC into its business would also enable some 120 MFL employees, who would otherwise face redundancy, to remain in work. The NPC is currently at Dunkirk where a number of crew members are directing their efforts to protecting it from degradation.
25. GET also disputes that it has been unwilling to explain its plans for the NPC to the CMA, to the extent, that is, that it has formed any. It outlined them on 9 June when it made clear that the aim of its proposals was to offer freight customers a combined ferry/rail option. This is said to be a valuable option as certain types of cargo are not permitted to travel through the Channel Tunnel (for example, dangerous substances and livestock). GET explained its intention to provide its freight customers with a choice between two different modes of transport, as it also explained that over time its service might be expanded to include a second vessel. It has not provided more specific information to the CMA because it says that such is not available.
26. GET's overall submission is that, even if the court were to consider any extension of the interim measures to be appropriate, it should be confined to the Berlioz and the Rodin, and should not extend to the NPC.
27. The CMA's response to GET's submissions, by a letter of 7 July to GET's solicitors, was to make a proposal to GET under which, subject to certain conditions with which it required GET to agree, the CMA would not object to GET integrating the NPC operations with the operations of its own business. The conditions proposed various modifications of the restrictions in the interim measures in Schedule 2 to the Remedies Order. GET has not, we are told, responded to the proposals.
28. I come, therefore, to the disposition of this application. Subject to the jurisdictional and procedural matters to which I shall come, I am satisfied, first, although with some degree of hesitation, that it would in principle be appropriate to continue the application of the interim measures in relation to the Rodin and Berlioz pending the disposal of any appeal that may be permitted by the Supreme Court. That would not affect DFDS, but in view of the unexplained secretiveness of GET as to the terms of its transaction with DFDS, and the risk that such terms may lead to a reversion of the ships to GET, I consider that, subject as aforesaid, the CMA ought in principle to be entitled to interim protection against the transfer to GET in the meantime of confidential and other information relating to the MFL business that is proscribed by the provisions of Schedule 2.
29. Similarly, as regards the NPC, but again subject to the like proviso and with the like hesitation, I consider that the CMA is in principle also entitled to like interim protection. Whilst I regard Mr Gordon's submissions as convincingly attractive, I consider that a significant difficulty with them is that they are seeking to fight again a battle over the deployment of the NPC that has already been fought and lost. In that connection, Mr Harris showed us the Commission's report of 6 June 2013, in which paragraph 9 recorded the Commission's summary conclusion that the relevant markets in which to consider the competitive effects of the merger it had found to have taken place were (a) transport services to passengers on the short sea, the passenger market, and (b) transport services to freight customers on the short sea, the freight market. Its conclusion on the SLC test in paragraph 9.8 was as follows:

"We conclude that the merger may be expected to result in an SLC in the market for the supply of transport services to passengers on the short sea and in the market for the supply of transport services to freight customers on the short sea. This may be expected to lead to a worsening (relative to the counterfactual situation) of the prices charged by both [GET] and ferry operators in these two markets."

30. Finally, in paragraph 10.120 of the body of the report, the Commission wrote this:

"We thus believe that, if we did not take measures to avoid circumvention, there is a material risk that GET might maintain its capacity on the Dover-Calais route, and that for it to do so would have the effect of undermining the effectiveness of the proposed remedies. Were the prohibition remedy to take effect or GET to dispose of all three Vessels, circumvention could take the form of GET re-establishing ferry operations and rebuilding the MFL business using other vessels, capitalizing so far as possible on its existing goodwill and contractual relationships with the SCOP and otherwise. Were alternatively GET to divest only the Berlioz and the Rodin, circumvention might take the form of continuing to operate the Nord Pas-de-Calais as well as other business assets, and supplementing its operations by adding one or more new vessels."

31. I draw attention to the last sentence in particular. In light of those conclusions by the Commission, I am not prepared to accept that GET's proposal with regard to the use of the integration of the NPC into its own business will not result in the SLC that the Commission found was likely. I would, therefore, in principle consider it appropriate, if it can be done, to continue the interim measures pending the disposal of any appeal to the Supreme Court.
32. I consider, however, that there is a serious question as to whether and how this court might achieve that, a difficulty to which the CMA appears to have had no regard until the court raised it with Mr Harris during the hearing of the application. The first problem is as follows. Whilst, under section 84 of the Enterprise Act 2002 the Remedies Order may be varied or revoked by the CMA, we have not been referred to any jurisdiction in the court to vary or revoke it. In any event, this court has now made an order quashing the Remedies Order, subject only to the limited stay of such quashing in relation to parts of Schedule 2, a stay expiring at midnight. A formal difficulty in the CMA's path in its present application is that the interim measures it chose to impose in its Remedies Order were only ever destined to last until then. That is the plain sense of article 5.1 and paragraphs 1 and 2 of Schedule 2.
33. Accordingly, when by its order of 15 May the court stayed the quashing of the interim measures until and including today, it was doing no more than to provide for those measures to stay in place for as long as the Remedies Order had itself provided for their continuation. A continuation of the interim measures beyond today could not in my view then have been achieved, nor can it now be achieved, by anything in the nature of a stay of the quashing of the relevant part of the Remedies Order.
34. In its application to this court, the CMA originally presented a draft form of order that simply provided for the substitution of paragraph 5 of the court's order of 15 May by an order imposing a continued stay of the quashing of the provisions until, at the latest, the determination of any appeal to the Supreme Court. An order in that form would, however, achieve nothing: the Remedies Order provided for the relevant interim measures to continue only until today and an unqualified stay of their quashing could not by some process of magic prolong their life beyond that date.
35. Mr Harris's answer to that was that as the whole of the Remedies Order had been quashed by the court's order, the Schedule 2 provisions that were the subject of the existing stay should in some manner be regarded as unlimited by time. I would not accept that argument. It is true that the whole order has been quashed, but to the extent that, as it did, the court stayed the quashing of part of it, that part, and the time limits applying to it, must be interpreted as part of the original whole.
36. In the light of the court's concerns as to how, if at all, it might be able to continue the substantive effect of the existing stay, the court suggested to Mr Harris that probably the only alternative was for the CMA to seek an interim injunction in the terms of the relevant interim measures until after the final disposal of its permission application to the Supreme Court, and if permission is given, the determination of its appeal, or further order in the meantime. The court was, however, concerned as to whether it would in fact have any jurisdiction to grant such an injunction. In particular, it could not identify the existence of any cause of action that the CMA had against GET (or anyone else) that might be said to justify it. With a view to obtaining further assistance as to the basis, if any, upon which the court might found an order providing for the further continuation of the interim measures, the court therefore invited the further written submissions from the CMA to which I have earlier referred. It also asked the CMA to produce a draft of the order it was inviting the court to make and to notify GET that it was proposing to ask the court to continue the current protection by way of the grant of an injunction.
37. The result was that Mr Harris and Mr Rayment produced further written submissions in the course of yesterday, as I have already mentioned, and Mr Gordon in turn produced further responsive submissions on behalf of GET. The court is grateful to counsel for their further assistance. I shall, however, say straight away that I do not regard the CMA submissions as providing an answer to the problem.
38. Mr Harris's first suggestion is that the court should impose a further stay upon the quashing of the Remedies Order that it made on 15 May 2015. He invites us first to stay the quashing of Article 9, which provides, so far as material, as follows:

"9.1 The CMA may, in exceptional circumstances where the CMA considers it appropriate, in response to a written request from GET showing good cause or otherwise at the CMA's own discretion, grant an extension:

9.1.1 of any period specified in the Order within which GET must take action; or

9.2.2 to any date from which any obligations or prohibitions set out in this Order shall apply ..."

39. He submits that if this is done, the CMA can then extend "the Specified Period" beyond today by redefining "the Prohibition Date", that being the end date of "the Specified Period" by which GET must, by Schedule 2, "procure that" the various interim measures are honoured. He suggests that the provision in the definition of "the Specified Period" for its earlier determination on "such earlier date as GET ceases to provide, directly or indirectly, passenger ferry services or freight ferry services at the Port of Dover" could be removed by the CMA as part of its re-definition of the Specified Period. The CMA's exercise of its Article 9 discretion will thus enable the prolongation of the Specified Period for a length of time sufficient for the disposal of the proposed appeal to the Supreme Court; and if the court then also extends beyond today its stay on the quashing of the relevant interim measures, the CMA will achieve the protection it wants.
40. Mr Gordon's short answer to that suggestion is that as the court quashed the Remedies Order, including Article 9, by its order of 15 May and imposed no stay upon such quashing save as regards certain of the Schedule 2 interim measures, it has no power or jurisdiction now to revive Article 9 so as to enable the CMA to perform the suggested time extension exercise.
41. I agree with Mr Gordon. The court's order was final, it has been sealed, it had the effect of quashing the entirety of the Remedies Order subject only to the limited stay it granted, and the court cannot now revive the Remedies Order in order to enable the CMA to exercise powers under it. Of course, contrary to the CMA's apparent suggestion, merely reviving Article 9 (were that possible) would do it no good. It would also be necessary to revive the provisions whose temporal limits the CMA would then wish to extend. In my judgment, however, the court cannot do that either.
42. The CMA's alternative suggestion is that the court should exercise a jurisdiction equivalent to that enjoyed by the CAT under rule 61 of The Competition Appeal Tribunal Rules 2003. Rule 61 is headed "Power to make interim orders and to take interim measures". Mr Harris relies in the alternative on two provisions in the rule. First, rule 61(1)(a), which enables the CAT to suspend in whole or in part the effect of any decision which is the subject matter of proceedings before it. Second, rule 61(2), which provides that:

"(2) Without prejudice to the generality of the foregoing, if the Tribunal considers that it is necessary as a matter of urgency for the purpose of-

(a) preventing serious, irreparable damage to a particular person or category of person, or

(b) protecting the public interest

the tribunal may give such directions as it considers appropriate for that purpose."

43. Those powers enable the CAT to make interim orders or give interim directions in relation to matters pending before it. Mr Harris developed submissions to the effect that a jurisdiction equivalent to that conferred by rule 61(1)(a) or rule 61(2) could be exercised by the Court of Appeal in the present case in order to achieve the limited protection for which the CMA asks. He says that this court's jurisdiction to exercise those powers is to be found in section 15(3) of the Senior Courts Act 1981.
44. Section 15(3) provides as follows:

"(3) For all purposes of or incidental to–

(a) the hearing and determination of any appeal to the civil division of the Court of Appeal, and

(b) the amendment, execution and enforcement of any judgment or order made on such an appeal

the Court of Appeal shall have all the authority and jurisdiction of the court or tribunal from which the appeal was brought."

45. I am unable to understand how anything in that subsection confers upon the Court of Appeal in the present circumstances of this case any jurisdiction to grant the type of limited relief for which the CMA asks. Section 15(3)(a) appears to have no relevant application. As for section 15(3)(b), the "order" there referred to is this court's order of 15 May 2015. The CMA's application does not, I consider, relate to the execution or enforcement of that order. Nor were we shown anything in the CAT Rules relating to the "amendment" of orders that might be of present relevance.
46. The outcome is that I am not persuaded that this court has any jurisdiction to grant the further interim relief for which the CMA asks. I would dismiss the CMA's application dated 6 July 2015 and make no order as to costs.
47. LORD JUSTICE TOMLINSON: I agree. I share my Lord's hesitation on the question whether it would in principle be appropriate to continue the application of the interim measures, particularly so far as concerns the Nord Pas-de-Calais. However, in the light of my Lord's conclusion as to our lack of jurisdiction, with which I agree, my concerns are academic, and this is not in any event the time or place to debate the merits of the Commission's conclusion as to a likely significant lessening in competition in the event that the NPC is integrated into GET's existing business.
48. LADY JUSTICE ARDEN: I also agree. I wish to add two points. The first is a fundamental point. We have not been addressed on the question whether this court can authorise the CMA to do that which it has held (by a majority) that the CMA has no power to do. Accordingly, we have not been shown any authority on that point. But there is a relevant decision of this court, namely Secretary of State for Work and Pensions v Payne and Cooper [2011] EWCA Civ 492. The facts were far removed from the present case. The issue was whether the Secretary of State had power to make certain deductions from social security benefits. The court held that the Secretary of State did not have this power (see [2013] 1WLR 1723). The relevant part of this court's order provided for a stay of the order requiring the Secretary of State to repay the deductions which he ought not to have made pending an application for permission to appeal to the Supreme Court. The stay, therefore, was on the repayment of deductions. The Secretary of State later made a further application for a stay to enable him to continue to make deductions and also to authorise him not to repay those deductions pending the decision of the Supreme Court.
49. This court dismissed the application on two grounds, and it is the first with which I am particularly concerned. (The alternative ground was on the basis of discretion). Mummery LJ, with whom Smith and Toulson LJJ agreed, held that constitutionally this court could not authorise a person to do something which would be contrary to the law laid down by its judgment. I refer particularly to paragraph 9 of the judgment of Mummery LJ where he held:

"No powers of case management under the Civil Procedure Rules could authorise the court to do something that constitutionally it has no power to do. This court has no power to authorise general acts which are contrary to the law, unless there is some law authorising them to do it, and there is nothing in the relevant legislation that allows the court to do this."

50. Likewise, in this case there is nothing in the relevant legislation which allows us to suspend the effect of the order to enable the Remedies Order to continue to operate pending any application for permission to appeal, or appeal to the Supreme Court.
51. In due course, the Supreme Court gave permission to appeal in Secretary of State for Work and Pensions v Payne and Cooper and it affirmed the decision of this court on the substantive issue see R(Cooper) v Secretary of State for Work and Pensions; R(Payne) v Same [2012] AC 1.
52. Secretary of State for Work and Pensions v Payne and Cooper may be compared with the decision of the Supreme Court in Ahmed v HM Treasury [2010] 2 AC 534. In that case, the Supreme Court quashed an asset-freezing order made by HM Treasury without power so to do. The quashing order made it plain that the Treasury order was ultra vires and of no effect in law. HM Treasury asked the Supreme Court to suspend its order to enable appropriate legislation to be passed by Parliament giving HM Treasury the necessary power. The Supreme Court held unanimously that it had power to suspend the effect of any order that it made. By a majority it held that it should not exercise that power in the circumstances of that case.
53. It may be that the decision in Payne and Cooper as to the power of this court to grant a stay now needs to be reviewed in the light of Ahmed. But, even if this court were to conclude that it had power to suspend its order, that conclusion might turn out to be a Trojan horse so far as the CMA is concerned in this case because it would lead the court to the question that was considered by the majority in Ahmed to be critical. That question was whether it was appropriate for the court to grant a stay in circumstances where its order would, or might, give a misleading impression as to the law as it had held it to be. Once the suspension was lifted, the legal position would revert to what the Supreme Court had held it to be. I do not propose in this judgment to resolve the effect of Ahmed on Payne and Cooper. There needs to be further argument. However, it is important to record that there may be complex issues to be resolved, if the court were otherwise minded to make the order which the CMA now seeks, in addition to those set out in the judgment of Sir Colin Rimer.
54. The second point is very short. GET, in its written submissions of 9 July, at paragraph 14 said this:

"Although the CMA is a public body it is submitted that there is no adverse effect in the absence of further interim relief in respect of NPC. It should be borne in mind that the CMA's chosen remedy was a prohibition remedy rather than divestment, and there is nothing to stop the CMA from imposing such remedy should it ultimately prevail before the Supreme Court."

55. As Sir Colin Rimer has explained, this application has been made in a great hurry. While we have been much assisted by the submissions that we have had, we have not had any argument on the possibility of divestment. That possibility might conceivably have been an alternative to a stay, and might have led the court to conclude that it was not necessary to impose a stay in any event. This may, however, also be a Trojan horse for the CMA since it may be a less desirable remedy so far as the CMA is concerned - we do not at this stage know. It is enough to record that GET appears to accept that that remedy would have been available.
56. With those two additional points, I agree with the judgments that have been given and with the order that Sir Colin Rimer has proposed.