On 13 December 2012, the Court of Appeal rejected Ryanair's appeal from the ruling of the Competition Appeal Tribunal on 8 August 2012 that the CC should be permitted to continue its investigation of the minority stake in Aer Lingus that Ryanair acquired in 2006 in the course of Ryanair's first failed hostile bid to acquire the whole Aer Lingus.
The OFT referred Ryanair's minority stake to the CC on 15 June 2012 following the Supreme Court and Court of Appeal's rejection of Ryanair's challenge to the OFT's jurisdiction (see here). Four days later, Ryanair announced its intention to launch a new hostile bid for Aer Lingus. That bid falls under the European Commission's jurisdiction.
Ryanair argued that because the EC Merger Regulation confers exclusive jurisdiction on the European Commission, the CC could not investigate Ryanair's minority stake in Aer Lingus in parallel with the European Commission's investigation of Ryanair's new bid. Somewhat ironically, Ryanair relied on the duty of sincere cooperation under Article 4 TEU as applied by the Court of Appeal to reject Ryanair's challenge to the OFT's jurisdiction earlier this year. Aer Lingus and the CC argued, however, that the Court of Appeal's judgment was distinguishable because on this occasion Ryanair's minority stake did not form part of the same concentration as its bid for the whole of Aer Lingus. It followed that the minority stake fell outside the scope of the European Commission's exclusive jurisdiction and that the CC was therefore able to investigate it. There was no risk of conflict between the CC's and European Commission's investigations because they were applying different legal tests to different facts.
The Court of Appeal preferred the arguments of Aer Lingus and the CC, finding that it was neither necessary nor appropriate for the CC to stay its investigation.
The judgment is here.
James Flynn QC and Daniel Piccinin acted for Aer Lingus, instructed by Cadwalader, Wickersham & Taft.