CAT 21
8 Aug 2012
Judgment of the Tribunal dismissing an application brought by Ryanair Holdings plc (“Ryanair”) under section 120 of the Enterprise Act 2002 (the “2002 Act”).
Ryanair applied for a review of a decision of the Competition Commission (the “CC”), taken on 10 July 2012, to continue its investigation (the “Investigation”) into the completed acquisition by Ryanair of a minority shareholding in Aer Lingus Group plc (“Aer Lingus”). Ryanair alleged that because it had also made a public bid for the entirety of the share capital in Aer Lingus, which is presently under consideration by the European Commission, the CC’s decision to continue the Investigation infringed either the exclusive jurisdiction of the European Commission under Article 21 of the EC Merger Regulation and/or the duty of sincere cooperation under Article 4(3) of the Treaty on European Union.
For the reasons set out in full in the judgment, the Tribunal unanimously dismissed the application pursuant to section 120(5) of the 2002 Act. Given that the minority holding did not amount to a concentration with a Community dimension, within the meaning of the EC Merger Regulation, the Tribunal held that that Regulation did not, and could not, apply to the minority shareholding, which therefore could be subject to the CC’s Investigation. The Tribunal further considered that whilst the duty of sincere cooperation required the CC to avoid taking any decision running counter to a decision adopted, or which might be adopted, by the European Commission in relation to the public bid, the extent of the duty was not such as to preclude, as a matter of law, the CC from taking any further steps in its Investigation.
This is an unofficial summary prepared by the Registry of the Competition Appeal Tribunal.