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Supreme Court and Court of Appeal rule that OFT can review Ryanair’s minority stake in Aer Lingus


Ryanair Holdings plc v The Office of Fair Trading (Aer Lingus Group plc intervening)

On 22 May 2012, the Court of Appeal ruled that the OFT was still in time to review the minority stake in Aer Lingus that Ryanair acquired in 2006.

The OFT commenced its investigation into Ryanair's stake when various EU investigations and appeals relating to Ryanair's failed bid for the whole of Aer Lingus concluded in 2010. Ryanair argued that that was too late for the OFT to start an investigation, but the Competition Appeal Tribunal ruled otherwise on 28 July 2011. Ryanair appealed to the Court of Appeal and obtained interim relief preventing the OFT from continuing its investigation in the meantime.

Like the Tribunal, however, the Court of Appeal preferred the submissions of the OFT and Aer Lingus that the OFT could not have referred Ryanair's stake to the Competition Commission while the EU investigations and appeals remained afoot. To do so would have given rise to a risk of inconsistency between UK and EU decisions, which would have been contrary to the OFT's duty of sincere cooperation under EU law. In those circumstances, s 122(4) of the Enterprise Act reset the time limit for an OFT investigation once the risk of conflict between UK and EU decisions was removed.

The Court of Appeal's interim relief fell away on its final judgment, thereby obliging the OFT to recommence its investigation while awaiting the Supreme Court's ruling on permission to appeal. With an 18 day deadline looming for the OFT to conclude its investigation, the Supreme Court took only 8 working days to decide Ryanair's application. On 1 June 2012 the Supreme Court refused permission to appeal. Ryanair was required to pay both the OFT's costs and those of Aer Lingus, the interested party in these proceedings.

The judgment is here.

James Flynn QC, Kelyn Bacon and Daniel Piccinin acted for Aer Lingus