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Monckton Chambers barristers John Swift QC and Daniel Beard are set to go head to head in the Competition Appeal Tribunal as Ryanair challenges the decision by the Office of Fair Trading to investigate its aborted takeover of Aer Lingus.
Covington & Burling partner Georg Berrisch instructed Swift to lead Monckton’s Alastair Lindsay and Josh Holmes for Ryanair.
OFT general counsel Frances Barr has instructed Beard, who is standing counsel to the OFT, to lead Julian Gregory, also of Monckton Chambers.
Brick Court’s James Flynn QC has been instructed by Linklaters partner Alec Burnside to act for Aer Lingus, which is intervening in the case.
A European Commission ruling in 2007 blocked Ryanair’s full take over of Aer Lingus. However, the airline had owned a stake in the airline since 2006. Ryanair currently owns 29.82 per cent of Aer Lingus.
In October last year, the OFT announced it was opening an enquiry into the relationship between the companies. Ryanair is challenging whether the OFT is able to investigate on the basis that it comes five years after the European Commission found that there was no material influence of one airline over the other.
In a statement Ryanair chief executive Michael O’Leary slammed the investigation and said the OFT appeared to have “nothing better to do than waste time and scarce public resources”.
The OFT, however, countered that such an investigation was timely because in July 2010, the European General Court ruled that the European Commission did not have the ability to require divestment of minority shareholdings that do not confer ’decisive influence’ for the purposes of the EC Merger Regulation.
The OFT’s investigation will look at two specific issues: whether the OFT has jurisdiction under the Enterprise Act 2002 to review the acquisition as a relevant merger situation and, if so, whether the acquisition raises issues that give rise to a duty to refer the acquisition to the Competition Commission under the ’substantial lessening of competition’ test set out in the Enterprise Act 2002.