CAT Refuses Leave To Appeal On Ryanair/Aer Lingus Merger

Profession:Dundas & Wilson

On 13 September, the CAT refused Ryanair permission to appeal against the CAT's July ruling that the OFT's investigation into the Ryanair/Aer Lingus merger was not time-barred. Ryanair failed to convince the CAT that there was any compelling reason why an appeal should be allowed.

This case has a long history. Ryanair first acquired shares in Aer Lingus in 2006 and upon obtaining a substantial minority shareholding, launched a public bid for Aer Lingus. The European Commission issued two decisions under the EU Merger Regulation in the summer of 2007. In the first, it prohibited Ryanair from acquiring the remaining shares in Aer Lingus. It concluded that the acquisition would have combined the two leading airlines operating from Ireland, which vigorously competed against each other. Remedies offered by Ryanair were inadequate to remove the Commission's competition concerns. In its second decision, the Commission rejected a request by Aer Lingus that Ryanair should be required to divest its existing minority shareholding in Ryanair. The Commission concluded that it lacked jurisdiction to order divestiture of a minority, non-controlling shareholding, the acquisition of which did not amount to a "concentration" for the purposes of the EU Merger Regulation. Both airlines appealed against the Commission's decisions. UK merger rules treat as an acquisition of control the acquisition of "material influence", which may result from a shareholding of as little as 15% or so. However, the OFT considered itself unable to carry out any investigation into the shareholding with the appeals outstanding.

As we reported in our February...

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