Ryanair Challenge Rejected

09 Aug 2012

The CAT yesterday rejected Ryanair’s challenge to the Competition Commission’s decision to continue investigating its minority stake in Aer Lingus.

The minority stake was acquired (largely) in 2006, but review under the Enterprise Act 2002 was delayed because the acquisition was under consideration by the European Commission and subsequently the European Courts as part of Ryanair’s 2006 public bid.

A reference was made to the Competition Commission on 15 June this year.  On 19 June Ryanair launched a further bid for Aer Lingus – also falling within the jurisdiction of the European Commission – and argued that the review of the minority stake should again be delayed, challenging the Competition Commission’s decision to proceed and the use of its information gathering powers.

It was common ground that, by contrast with the situation in 2006, on this occasion the European Commission did not have jurisdiction to review the minority stake and would consider only the increase in shareholding brought about by the proposed bid.

The CAT held that:

–    While European law confers exclusive jurisdiction on the European Commission, this applies only to the extent that it actually has jurisdiction, and could not be read more widely, for example to cover transactions “inextricably linked” to concentrations under review; and

–    The Competition Commission’s duty of “sincere cooperation” with the European Union did not preclude it from taking any further steps in the investigation, as Ryanair contended.

Daniel Beard QC and Alison Berridge appeared for the Competition Commission.