Competition Commission investigation into Ryanair given green light

The Court of Appeal (CoA) has cleared the way for the Competition Commission (CC) to continue its investigation into Ryanair’s minority stake in rival airline Aer Lingus.

The ruling, handed down today (13 December 2012), saw the CC and Aer Lingus successfully defend the commission’s right to investigate the stake. Monckton Chambers’ Daniel Beard QC and Alison Berridge were instructed by the Treasury Solicitor for the CC, while Brick Court Chambers’ James Flynn QC and Daniel Piccinin were instructed by Cadwalader Wickersham & Taft partner Alec Burnside.

Blackstone Chambers’ David Pannick QC and Brian Kennelly were instructed directly by Ryanair to bring the appeal.

The case concerns the 29.8 per cent stake in Aer Lingus that Ryanair acquired in 2006 during the course of a hostile bid to acquire the airline. In June (19 June 2012), the OFT referred the stake to the CC after the Supreme Court rejected Ryanair’s challenge to the authority’s jurisdiction.

In the CAT and CoA Pannick, for Ryanir, argued that the CC did not have jurisdiction to investigate the stake by virtue of the European Commission’s (EC) jurisdiction under the EC Merger Regulation. The EC is currently considering Ryanair’s hostile bid for the remainder of Aer Lingus that it does not own.

However, Lord Justice Etherton, supported in his leading judgment by Lords Justice Pill and Lewison, dismissed this argument. Etherton LJ said it was “impossible to say that the Competition Commission’s decision to continue its current investigation into Ryanair’s minority shareholding was a breach of the UK’s duty of sincere co-operation” with the EC, and that the issue of the minority stake was a case where only the UK has jurisdiction.

The CC will now be able to continue its investigation.