OFT triumphs against Ryanair in Aer Lingus case

Ryanair could be forced to sell its stake in a rival airline after Monckton Chambers silk Daniel Beard won a long-running case for the OFT.

The Court of Appeal was ruling on the fallout from Ryanair’s blocked 2006 buyout attempt of rival Irish airline Aer Lingus.

The OFT’s case was supported by Aer Lingus, who turned to both Cadwalader Wickersham & Taft partner Alec Burnside and Linklaters’ Eamonn Doran instructing Brick Court Chambers’ James Flynn QC.

Ryanair, represented in the Court of Appeal by Blackstone Chambers’ Lord Pannick QC, was appealing against a Competition Appeal Tribunal ruling over the takeover.

By 2006 Ryanair had built up a 25 per cent stake in Aer Lingus and made a public bid for the rest, only to be blocked by the European Commission (EC) who said the merger would be anti-competitive.

But the EC did not order Ryanair to sell its stake, so Aer Lingus took legal action in the General Court in Luxembourg to force Ryanair to divest its interest. At that time, Ryanair went to the same court to appeal the original EC refusal.

The OFT took a watching brief position on both these appeals, with Aer Lingus asking the regulator to scrutinise Ryanair under UK merger control law. However it did not take any action until the appeals in Luxembourg were completed three years later. At that point Ryanair tried to claim the OFT was out of time to make its move. 

But the OFT disputed Ryanair’s challenge saying it could not act because to do so would risk cutting across the ‘one-stop-shop’ merger control regime that operates at an EU level. A Competition Appeal Tribunal agreed.

Now, the Court of Appeal has upheld the OFT’s approach and concluded that the “duty of sincere co-operation” between the UK and EU meant that it was right to hold off its scrutiny until the EU court process was at an end.

Defeat for Ryanair means that the OFT will now take a look at its stake in Aer Lingus and could well refer it to the Competition Commission for a second-phase investigation.

The line-up:

For the appellants, Ryanair: Covington & Burling counsel Richard Mattick instructed Blackstone Chambers’ Lord Pannick QC and Brian Kennelly

For the respondents, the Office of Fair Trading: general counsel Frances Barr instructed Monckton Chambers’ Daniel Beard QC and Julian Gregory

Appeal supported by Aer Lingus: Cadwalader Wickersham & Taft partner Alec Burnside and Linklaters partner Eamonn Doran instructed Brick Court Chambers’ James Flynn QC, Kelyn Bacon and Daniel Piccinin.