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You are here: BAILII >> Databases >> United Kingdom Competition Appeals Tribunal >> Ryanair Holdings Plc v Competition Commission [2014] CAT 3 (27 January 2014) URL: http://www.bailii.org/uk/cases/CAT/2014/3.html Cite as: [2014] CAT 3 |
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Case Number: 1219/4/8/13
Neutral Citation Number [2014] CAT 3
IN THE COMPETITION
APPEAL TRIBUNAL
7 March 2014
Applicant
Respondent
Intervener
(1) The CC's decision to require divestiture is contrary to the EU law duty of sincere cooperation. Ryanair's third bid for Aer Lingus was rejected by the European Commission on 27 February 2013, and Ryanair's appeal against that decision is now pending before the General Court. If the General Court decides in Ryanair's favour, the European Commission may decide that Ryanair is entitled to acquire Aer Lingus. A divestiture order now would undermine any ruling that Ryanair is entitled to acquire Aer Lingus. If this ground of challenge is upheld, Ryanair seeks an order quashing the decision to impose a divestiture order without waiting first for the outcome of the EU procedure.
(2) It was procedurally unfair to keep secret from Ryanair material allegations and evidence which the CC relied upon in reaching its decision. Ryanair should in fairness have been given an opportunity to make submissions upon them. If this ground of challenge is upheld, Ryanair seeks an order quashing the entire Final Report.
(3) The CC erred in law in failing to show a causal link between the alleged material influence and the finding of an SLC. Instead, its finding of an SLC was based in large part on factors other than the material influence which it had identified. If this ground of challenge is upheld, Ryanair seeks an order quashing the SLC finding and the proposed remedies.
(4) The SLC finding is irrational. The finding rests on highly speculative theories of harm, and the evidence does not support a conclusion on the balance of probabilities that the alleged merger situation would result in an SLC. As with (3) above, Ryanair seeks an order quashing the SLC finding and the proposed remedies.
(5) In any event, the divestiture remedy and the immediate appointment of a divestiture trustee are disproportionate, given Ryanair's willingness to offer undertakings which are equally (or more) effective but less intrusive, and less destructive of Ryanair's interests.
(6) Fundamentally, the CC does not have jurisdiction to impose requirements on Ryanair, an Irish company which does not carry on business in the UK, to do things or to refrain from doing things outside of the UK.
PART 1: THE BACKGROUND
"64. …the acquisition of a shareholding, which does not, as such, confer control as defined in Article 3 of the merger regulation does not constitute a concentration which is deemed to have arisen for the purposes of that regulation. On that point, European Union law differs from the law of some of the Member States, in which the national authorities are authorised under provisions of national law on the control of concentrations to take action in connection with minority shareholdings in the broader sense.
…
91. …Where there is no concentration with a Community dimension, the Member States remain free to apply their national competition law to Ryanair's shareholding in Aer Lingus in accordance with the rules in place to that effect."
"(a) the Ryanair Appeal and the Aer Lingus Appeal [to the General Court] each give rise to potential conflicts with a decision taken pursuant to (or with the outcome of) a reference to the Competition Commission under section 22 of the Act, and those potential conflicts were such that the duty of sincere cooperation under Article 10 EC required the UK merger control authorities to avoid them. In the case of the Aer Lingus Appeal, the potential conflicts also included a risk of infringement of article 21(3) of the Merger Regulation.
(b) Subsection 122(4) of the Act is the means provided by Parliament for enabling the OFT to comply with the duty of sincere cooperation and avoid the risk of impermissible conflicts with article 21(3) of the Merger Regulation and/or between decisions taken (or to be taken) under the EU merger control system (including, where relevant, judgments of the EU courts) and decisions of the UK competition authorities, whilst preserving the possibility of a reference under section 22 pending the final resolution of the EU process.
(c) For the purposes of subsection 122(4), a reference under section 22 could not have been made earlier than 17 September 2010, and Ryanair is not entitled to any of the relief sought in paragraph 38 of the Notice of Application."
"1. On 15 June 2012, the OFT sent the following reference to the CC:
1. In exercise of its duty under section 22(1) of the Enterprise Act 2002 ("the Act") to make a reference to the Competition Commission ("the CC") in relation to a completed merger, the Office of Fair Trading ("the OFT") believes that it is or may be the case that:
(a) a relevant merger situation has been created in that:
(i) enterprises carried on by or under the control of Ryanair Holdings plc (Ryanair) have ceased to be distinct from enterprises previously carried on by or under the control of Aer Lingus Group plc (Aer Lingus); and
(ii) as a result, the conditions specified in section 23(4) of the Act will prevail, or will prevail to a greater extent, with respect to the supply of scheduled airline services between the UK and the Republic of Ireland measured by number of passengers;
(b) the creation of that situation has resulted or may be expected to result in a substantial lessening of competition within any market or markets in the UK for goods and services, including the provision of scheduled airline services on a number of direct routes between cities in the UK and cities in Ireland where either:
(i) Ryanair and Aer Lingus overlap in the provision of services (these routes being: Manchester (Liverpool) – Dublin; Birmingham (East Midlands) – Dublin; London-Cork; London-Shannon; London-Knock; and London-Dublin); or
(ii) Ryanair operates on the route and Aer Lingus is a potential entrant onto the route (these routes being: Dublin-Newcastle and Knock-Bristol).
2. Therefore, in exercise of its duty under section 22(1) of the Act, the OFT hereby refers to the CC, for investigation and report within a period ending on 29 November 2012, on the following questions in accordance with section 35(1) of the Act:–
(a) Whether a relevant merger situation has been created; and
(b) If so, whether the creation of that situation has resulted or may be expected to result, in a substantial lessening of competition within any market or markets in the UK for goods or services."
"In our view, as a matter of Union law, parallel procedures by the European Commission and the Competition Commission are not excluded. However, national competition authorities should not, on the basis of their national law, take decisions that would compromise decisions or possible decisions by the European Commission under the EU Merger Regulation."
"82. This is not a case of "overlapping jurisdictions" as that term is used by the Chancellor in the Ryanair C/A Decision. In this case, there is no prospect – even contingently – of the exclusive jurisdiction conferred on the European Commission by Article 21 of the EC Merger Regulation extending to the Minority Holding. As is common ground, whilst the shares which are the subject of the Public Bid amount to a concentration with a Community dimension, and so fall within the EC Merger Regulation, the Minority Holding does not. This fact distinguishes the present case from that before the Court of Appeal in the Ryanair C/A Decision: there Ryanair's minority shareholding in Aer Lingus was part of the same concentration with a Community dimension as Ryanair's first public bid, with the result that the entire concentration – including the minority holding – was subject or potentially subject to the EC Merger Regulation.
83. This is a case where there are parallel or concurrent jurisdictions:
(1) In the case of the Public Bid, the European Commission has exclusive jurisdiction.
(2) In the case of the Minority Holding, the European Commission has no jurisdiction, and the matter falls within the purview of the OFT and the CC. There is no prospect, as regards the Minority Holding, of Article 21 applying, let alone reviving.
84. Accordingly, we reject Ryanair's contention that, as a matter of law, the duty of sincere cooperation precludes the CC from taking any further steps in the Investigation. Of course, as Mr Beard Q.C., for the CC, accepted, the CC remains subject to the duty of sincere cooperation and must avoid taking any final decision in respect of the Minority Holding which would, or could, conflict with the European Commission's ultimate conclusion on the compatibility of the Public Bid with the common market. That does not mean that the CC is precluded, as a matter of law, from taking any further steps in the Investigation."
"60. First, it is common ground in this court (although it was not before the CAT) that the EC's jurisdiction does not extend to Ryanair's minority shareholding. Whatever the EC decides, or any court on appeal from the EC's decision holds, the UK has exclusive jurisdiction to consider the competition implications of Ryanair's minority shareholding. Article 21(3) has no application. Secondly, even if there is a theoretical possibility that the analysis and decision of the Competition Commission on Ryanair's minority shareholding could be relevant to, and even inconsistent with, those of EC on its investigation of the public bid, and vice versa, all parties before us appear to be in agreement that (subject to some exceptional and unforeseen circumstances) the EC's decision will in fact be delivered first. That is due to extension of the Competition Commission's timetable for carrying out its investigation caused by Ryanair's non-compliance with the section 109 notice. Thirdly, in any event, even if the Competition Commission's investigation were to be completed and its report published first due to the Competition Commission's statutory duty to complete its investigation within the time specified in EA ss.38 and 39, and it found that there was an anti-competitive outcome and proposed remedial action, the Competition Commission would not be bound to implement the remedial action immediately. The Competition Commission would have power under EA s.41(3), if it saw fit in the circumstances then prevailing and taking into account its duty of sincere co-operation, to defer such remedial action until the publication of the results of the EC's investigation and to re-consider remedial action in the light of the reasoning and decision of the EC."
"(2) in relation to the point of European Union law said to be raised by or in response to the application it is not necessary to request the Court of Justice to give any ruling because the application of the duty of sincere co-operation is a matter for domestic courts. The European legal principle is clear, and its application fact-specific. Further and in any event the Competition Commission has on the face of it sufficient powers to react to any Court of Justice decision over-ruling the European Commission and permitting a 100% bid."
"7. We collected evidence from Ryanair, Aer Lingus and a range of third parties and sought verification of the evidence received. During our inquiry, the main parties drew our attention to numerous press articles mentioning Ryanair, Aer Lingus, the Irish Government or other third parties. In general we sought parties' views and relevant documents directly on matters of relevance to our inquiry rather than relying on the information contained in press articles. We gathered oral evidence through hearings with selected third parties. Summaries of third party hearings are on our website.
8. Non-confidential versions of Aer Lingus's initial submission and submissions made by Ryanair to the OFT on material influence and the SLC question were posted on our website. We visited Aer Lingus and Ryanair in Dublin. We also held hearings with Aer Lingus and Ryanair.
9. During the course of our inquiry, we sent Ryanair, Aer Lingus and certain third parties extracts from working papers and draft reports for comment, and considered a number of submissions from those parties."
PART 2: THE LEGISLATIVE FRAMEWORK
"believes that it is or may be the case that—
(a) a relevant merger situation has been created; and
(b) the creation of that situation has resulted, or may be expected to result, in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services."
"(a) whether a relevant merger situation has been created; and
(b) if so, whether the creation of that situation has resulted, or may be expected to result, in a substantial lessening of competition within any market or markets in the United Kingdom for goods or services."
A "relevant merger situation"
(1) subsection 23(1)(b), read together with section 28, sets out a "turnover test", which is satisfied if the value of the turnover in the UK of the enterprise being taken over exceeds £70 million;
(2) subsection 23(2)(b), read together with subsections 23(3) to (8) sets out a "share of supply test", which – put broadly – is satisfied if 25% of all of the goods or services of a particular description supplied in the UK (or a substantial part of it) are supplied by or to the same person, or by or to the persons by whom the enterprises concerned are carried on.
"(1) For the purposes of this Part any two enterprises cease to be distinct enterprises if they are brought under common ownership or common control (whether or not the business to which either of them formerly belonged continues to be carried on under the same or different ownership or control).
(2) Enterprises shall, in particular, be treated as being under common control if they are—
(a) enterprises of interconnected bodies corporate;
(b) enterprises carried on by two or more bodies corporate of which one and the same person or group of persons has control; or
(c) an enterprise carried on by a body corporate and an enterprise carried on by a person or group of persons having control of that body corporate.
(3) A person or group of persons able, directly or indirectly, to control or materially to influence the policy of a body corporate, or the policy of any person in carrying on an enterprise but without having a controlling interest in that body corporate or in that enterprise, may, for the purposes of subsections (1) and (2), be treated as having control of it.
(4) For the purposes of subsection (1), in so far as it relates to bringing two or more enterprises under common control, a person or group of persons may be treated as bringing an enterprise under his or their control if—
(a) being already able to control or materially to influence the policy of the person carrying on the enterprise, that person or group of persons acquires a controlling interest in the enterprise or, in the case of an enterprise carried on by a body corporate, acquires a controlling interest in that body corporate; or
(b) being already able materially to influence the policy of the person carrying on the enterprise, that person or group of persons becomes able to control that policy."
A "substantial lessening of competition" and appropriate remedial action
"(a) whether action should be taken by it under section 41(2) for the purpose of remedying, mitigating or preventing the substantial lessening of competition concerned or any adverse effect which has resulted from, or may be expected to result from, the substantial lessening of competition;
(b) whether it should recommend the taking of action by others for the purpose of remedying, mitigating or preventing the substantial lessening of competition concerned or any adverse effect which has resulted from, or may be expected to result from, the substantial lessening of competition; and
(c) in either case, if action should be taken, what action should be taken and what is to be remedied, mitigated or prevented."
In deciding those questions, the CC is directed to have regard to "the need to achieve as comprehensive a solution as is reasonable and practicable to the substantial lessening of competition and any adverse effects resulting from it" (section 35(4)) and may have regard to "the effect of any action on any relevant customer benefits in relation to the creation of the relevant merger situation concerned" (section 35(5)).
"The Commission shall take such action under section 82 or 84 as it considers to be reasonable and practicable—
(a) to remedy, mitigate or prevent the substantial lessening of competition concerned; and
(b) to remedy, mitigate or prevent any adverse effects which have resulted from, or may be expected to result from, the substantial lessening of competition."
Section 41(3) stipulates:
"The decision of the Commission under subsection (2) shall be consistent with its decisions as included in its report by virtue of section 35(3) … unless there has been a material change of circumstances since the preparation of the report or the Commission otherwise has a special reason for deciding differently."
Like sections 35(4) and 35(5), sections 41(4) and 41(5) direct the CC to have regard to the need to achieve as comprehensive a solution as is reasonable and practicable and specifically empower it to have regard to the effect of any action on customer benefits.
"extend to a person's conduct outside the United Kingdom if (and only if) he is—
(a) a United Kingdom national;
(b) a body incorporated under the law of the United Kingdom or of any part of the United Kingdom; or
(c) A person carrying on business in the United Kingdom."
Consultation and confidentiality
Review in the Tribunal
"20. Section 179(4) of the Act provides that on an application to it for review of a decision of the CC the Tribunal "shall apply the same principles as would be applied by a court on an application for judicial review." There were no major differences between the parties as regards the approach that these principles require on the part of the Tribunal, but there were potentially significant differences of emphasis. In our judgment, the principles to be applied are as follows:
(1) Sections 134(4) and (6) and 138(2) and (4) of the Act (set out above), read together, require that any remedies that the CC recommends or adopts must be reasonable, practicable and – subject to those parameters – comprehensive;
(2) In light of the relevance of the Convention right in Article 1P1 in this context, section 3(1) of the HRA requires that sections 134 and 138 should be read and given effect in a way compatible with that Convention right, which means that any such remedies must satisfy proportionality principles. Also, the CC accepts in its published guidance that any such remedies must satisfy proportionality principles (paragraph 4.9 of the Competition Commission Guidelines on Market Investigation References, June 2003). There was common ground as to the formulation of the proportionality test to be applied by the CC in taking measures under the Act (and by the Tribunal in reviewing its actions):
"… the measure: (1) must be effective to achieve the legitimate aim in question (appropriate), (2) must be no more onerous than is required to achieve that aim (necessary), (3) must be the least onerous, if there is a choice of equally effective measures, and (4) in any event must not produce adverse effects which are disproportionate to the aim pursued" (Tesco plc v Competition Commission [2009] CAT 6 at [137], drawing on the formulation by the Court of Justice in Case C-331/88 R v Ministry of Agriculture, Fisheries and Food, ex p. Fedesa [1990] ECR I-4023, para. 13)
In addressing proportionality, the following observation of the Tribunal at para. [135] of its judgment in Tesco should particularly be borne in mind:
"[C]onsideration of the proportionality of a remedy cannot be divorced from the statutory context and framework under which that remedy is being imposed. The governing legislation must be the starting point. Thus the Commission will consider the proportionality of a particular remedy as part and parcel of answering the statutory questions of whether to recommend (or itself take) a measure to remedy, mitigate or prevent the AEC and its detrimental effects on customers, and if so what measure, having regard to the need to achieve as comprehensive a solution to the AEC and its effects as is reasonable and practicable."
(3) The CC, as decision-maker, must take reasonable steps to acquaint itself with the relevant information to enable it to answer each statutory question posed for it (in this case, most prominently, whether it remained proportionate to require BAA to divest itself of Stansted airport notwithstanding the MCC the CC had identified, consisting in the change in government policy which was likely to preclude the construction of additional runway capacity in the south east in the foreseeable future): see e.g. Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, 1065B per Lord Diplock; Barclays Bank plc v Competition Commission [2009] CAT 27 at [24]. The CC "must do what is necessary to put itself into a position properly to decide the statutory questions": Tesco plc v Competition Commission [2009] CAT 6 at [139]. The extent to which it is necessary to carry out investigations to achieve this objective will require evaluative assessments to be made by the CC, as to which it has a wide margin of appreciation as it does in relation to other assessments to be made by it: compare, e.g., Tesco plc v Competition Commission at [138]-[139]. In the present context, we accept Mr Beard's primary submission that the standard to be applied in judging the steps taken by the CC in carrying forward its investigations to put itself into a position properly to decide the statutory questions is a rationality test: see R (Khatun) v Newham London Borough Council [2004] EWCA Civ 55; [2005] QB 37 at [34]-[35] and the following statement by Neill LJ in R v Royal Borough of Kensington and Chelsea, ex p. Bayani (1990) 22 HLR 406, 415, quoted with approval in Khatun:
"The court should not intervene merely because it considers that further inquiries would have been desirable or sensible. It should intervene only if no reasonable [relevant public authority – in that case, it was a housing authority] could have been satisfied on the basis of the inquiries made."
(4) Similarly, it is a rationality test which is properly to be applied in judging whether the CC had a sufficient basis in light of the totality of the evidence available to it for making the assessments and in reaching the decisions it did. There must be evidence available to the CC of some probative value on the basis of which the CC could rationally reach the conclusion it did: see e.g. Ashbridge Investments Ltd v Minister of Housing and Local Government [1965] 1 WLR 1320, 1325; Mahon v Air New Zealand [1984] AC 808; Office of Fair Trading v IBA Health Ltd [2004] EWCA Civ 142; [2004] ICR 1364 at [93]; Stagecoach v Competition Commission [2010] CAT 14 at [42]-[45];
(5) In some contexts where Convention rights are in issue and the obligation on a public authority is to act in a manner which does not involve disproportionate interference with such rights, the requirements of investigation and regarding the evidential basis for action by the public authority may be more demanding. Review by the court may not be limited to ascertaining whether the public authority exercised its discretion "reasonably, carefully and in good faith", but will include examination "whether the reasons adduced by the national authorities to justify [the interference] are 'relevant and sufficient'" (see, e.g., Vogt v Germany (1996) 21 EHRR 205 at para. 52(iii); also Smith and Grady v United Kingdom (1999) 29 EHRR 493, paras. 135-138). However, exactly what standard of evidence is required so that the reasons adduced qualify as "relevant and sufficient" depends on the particular context: compare R (Daly) v Secretary of State for the Home Department [2001] UKHL 26; [2001] 2 AC 532 at [26]-[28] per Lord Steyn. Where social and economic judgments regarding "the existence of a problem of public concern warranting measures of deprivation of property and of the remedial action to be taken" are called for, a wide margin of appreciation will apply, and – subject to any significant countervailing factors, which are not a feature of the present case – the standard of review to be applied will be to ask whether the judgment in question is "manifestly without reasonable foundation": James v United Kingdom (1986) 8 EHRR 123, para. 46 (see also para. 51). Where, as here, a divestment order is made so as to further the public interest in securing effective competition in a relevant market, a judgment turning on the evaluative assessments by an expert body of the character of the CC whether a relevant AEC exists and regarding the measures required to provide an effective remedy, it is the "manifestly without reasonable foundation" standard which applies. One may compare, in this regard, the similar standard of review of assessments of expert bodies in proportionality analysis under EU law, where a court will only check to see that an act taken by such a body "is not vitiated by a manifest error or a misuse of powers and that it did not clearly exceed the bounds of its discretion": Case C-120/97 Upjohn Ltd v Licensing Authority [1999] ECR I-223; [1999] 1 WLR 927, paras. 33-37. Accordingly, in the present context, the standard of review appropriate under Article 1P1 and section 6(1) of the HRA is essentially equivalent to that given by the ordinary domestic standard of rationality. However, we also accept Mr Beard's submission that even if the standards required of the CC by application of Article 1P1 regarding its investigations and the evidential basis for its decisions were more stringent than under the usual test of rationality, the CC would plainly have met those more stringent standards as well;
(6) It is well-established that, despite the specialist composition of the Tribunal, it must act in accordance with the ordinary principles of judicial review: see IBA Health v Office of Fair Trading [2004] EWCA Civ 142 per Carnwarth LJ at [88]–[101]; British Sky Broadcasting Group plc v Competition Commission [2008] CAT 25, [56]; Barclays Bank plc v Competition Commission [2009] CAT 27, [27]. Accordingly, the Tribunal, like any court exercising judicial review functions, should show particular restraint in "second guessing" the educated predictions for the future that have been made by an expert and experienced decision-maker such as the CC: compare R v Director General of Telecommunications, ex p. Cellcom Ltd [1999] ECC 314; [1999] COD 105, at [26]. (No doubt, the degree of restraint will itself vary with the extent to which competitive harm is normally to be anticipated in a particular context, in line with the proportionality approach set out by the ECJ in Case C-12/03P Commission v Tetra Laval [2005] ECR I-987 at para. 39, but that is not something which is materially at issue in this case). This is of particular significance in the present case where the CC had to assess the extent and impact of the AEC constituted by BAA's common ownership of Heathrow, Gatwick and Stansted (and latterly, in its judgment, Heathrow and Stansted) and the benefits likely to accrue to the public from requiring BAA to end that common ownership. The absence of a clearly operating and effective competitive market for airport services around London so long as those situations of common ownership persisted meant that the CC had to base its judgments to a considerable degree on its expertise in economic theory and its practical experience of airport services markets and other markets and derived from other contexts;
(7) In applying both the ordinary domestic rationality test and the relevant proportionality test under Article 1P1, where the CC has taken such a seriously intrusive step as to order a company to divest itself of a major business asset like Stansted airport, the Tribunal will naturally expect the CC to have exercised particular care in its analysis of the problem affecting the public interest and of the remedy it assesses is required. The ordinary rationality test is flexible and falls to be adjusted to a degree to take account of this factor (cf R v Ministry of Defence, ex p. Smith [1996] QB 517, 537-538), as does the proportionality test (see Tesco plc v Competition Commission at [139]). But the adjustment required is not as far-reaching as suggested by Mr Green at some points in his submissions. It is a factor which is to be taken into account alongside and weighed against other very powerful factors referred to above which underwrite the width of the margin of appreciation or degree of evaluative discretion to be accorded to the CC, and which modifies such width to some limited extent. It is not a factor which wholly transforms the proper approach to review of the CC's decision which the Tribunal should adopt;
(8) Where the CC gives reasons for its decisions, it will be required to do so in accordance with the familiar standards set out by Lord Brown in South Buckinghamshire District Council v Porter (No. 2) [2004] UKHL 33; [2004] 1 WLR 1953 (a case concerned with planning decisions) at [36]:
"The reasons for a decision must be intelligible and they must be adequate. They must enable the reader to understand why the matter was decided as it was and what conclusions were reached on the "principal important controversial issues", disclosing how any issue of law or fact was resolved. Reasons can be briefly stated, the degree of particularity required depending entirely on the nature of the issues falling for decision. The reasoning must not give rise to a substantial doubt as to whether the decision-maker erred in law, for example by misunderstanding some relevant policy or some other important matter or by failing to reach a rational decision on relevant grounds. But such adverse inference will not readily be drawn. The reasons need refer only to the main issues in the dispute, not to every material consideration. They should enable disappointed developers to assess their prospects of obtaining some alternative development permission, or, as the case may be, their unsuccessful opponents to understand how the policy or approach underlying the grant of permission may impact upon future such applications. Decision letters must be read in a straightforward manner, recognising that they are addressed to parties well aware of the issues involved and the arguments advanced. A reasons challenge will only succeed if the party aggrieved can satisfy the court that he has genuinely been substantially prejudiced by the failure to provide an adequately reasoned decision."
In applying these standards, it is not the function of the Tribunal to trawl through the long and detailed reports of the CC with a fine-tooth comb to identify arguable errors. Such reports are to be read in a generous, not a restrictive way: see R v Monopolies and Mergers Commission, ex p. National House Building Council [1993] ECC 388; (1994) 6 Admin LR 161 at [23]. Something seriously awry with the expression of the reasoning set out by the CC must be shown before a report would be quashed on the grounds of the inadequacy of the reasons given in it."
PART 3: THE CC'S FINAL REPORT
Relevant merger situation – Ryanair's ability to exercise material influence over the policy of Aer Lingus
"4.42 We conclude that Ryanair's 29.82 per cent shareholding in Aer Lingus gives it the ability to exercise material influence over Aer Lingus. We reach this view having regard to all the factors discussed in paragraphs 4.12 to 4.41 and, in particular, Ryanair's ability to block special resolutions and the sale of Heathrow slots. We conclude that these mechanisms are relevant to Aer Lingus's ability to pursue its commercial policy and strategy, in particular, its ability to combine with another airline and to optimize its portfolio of slots, which are relevant to Aer Lingus's behaviour in the market. We discuss the relevance of Ryanair's ability to influence Aer Lingus's commercial policy and strategy and whether it has given rise to, or may be expected to give rise to an SLC in our assessment of competitive effects in Section 7.
4.43 As set out in paragraph 4.10, we do not consider it necessary to have concluded whether or not Ryanair has to date exercised material influence over Aer Lingus's commercial policy and strategy. Rather, this is one factor in the CC's assessment of whether or not the acquisition has given rise to, or may be expected to give rise to [an] SLC as discussed further in the competitive effects section.
4.44 In light of the above, we conclude that Ryanair has acquired the ability materially to influence the commercial policy and strategy of Aer Lingus and that, as set out in paragraph 4.6, this material influence gives rise to legal control for the purposes of the Act."
Market definition and the counterfactual
"We conclude that the appropriate counterfactual is that Aer Lingus, absent Ryanair's shareholding, would have continued or would continue to compete with Ryanair on routes between Great Britain and Ireland, either under independent ownership or in combination with another airline. In the next section we consider whether this competition would have been reduced or would be reduced as a result of the acquisition by Ryanair of a minority shareholding in Aer Lingus."
Assessment of the competitive effects of the acquisition
"7.5 We noted first that it is clear that under the EUMR the European Commission does not have jurisdiction to conduct a review of the competitive effects of Ryanair's acquisition of a minority shareholding in Aer Lingus; as a result we have a duty under the Act to carry out our own assessment.
7.6 The Court of Appeal has recently confirmed that what is required by a Member State to comply with the duty of sincere cooperation under article 4(3) of the TEU is highly fact sensitive and it is for the Member State to choose the most appropriate course of action to take in order to fulfill it.
7.7 In the present case, we consider that the appropriate course of action is to take into account the European Commission's assessment of competition between Ryanair and Aer Lingus in making our assessment of competitive effects. It has been helpful to us in understanding the intensity of competition between Ryanair and Aer Lingus and their rivals (and how this has changed over time) (see Section 5) and the likelihood of entry into the Irish market by other airlines. We have not reached any findings that are in conflict with those of the European Commission on these points.
7.8 However, we do not agree with Ryanair's submission that we are bound to conclude, on the basis of the European Commission's assessment of that competition, that the acquisition of the minority shareholding has not resulted and will not result in an SLC.
7.9 We looked carefully at the evidence of the period since 2006 as presented by the European Commission and gathered by the CC during the course of its inquiry. In particular, in addition to our consideration of competition between the airlines since 2006 (see Section 5), we refer extensively to events in the period since 2006 in our assessment of the different mechanisms by which Ryanair's shareholding in Aer Lingus may affect competition.
7.10 In our view, the finding that Ryanair and Aer Lingus compete intensely (and that the extent of overlap between their UK operations has increased since 2006) neither precludes, nor is in conflict with our findings that, absent Ryanair's shareholding, competition during the period since 2006 may have developed differently and could have been more intense. Many of the potential competitive effects of the transaction that we considered would manifest themselves in terms of the absence of an action that might otherwise have been taken by Aer Lingus (for example, Aer Lingus being prevented from combining with another airline or from disposing of Heathrow slots in the context of optimizing its route network and timetable). We therefore cannot determine whether the transaction has reduced competition relative to the counterfactual solely from observing the competitive actions that Aer Lingus and Ryanair have taken in the period since 2006.
7.11 In addition, we need to consider not only whether the transaction has, to date, led to a reduction in competition, but also whether competition between the airlines may be affected in the future. The evidence presented in the European Commission's decision, whilst informing our understanding of the current level of competition between the parties, is a factor among others that we have taken into account when assessing how competition between the airlines might develop with and without Ryanair's shareholding in the future. For example, we were also conscious of Aer Lingus's view that its competitiveness would be eroded over time as it faced an inevitable 'cost creep' if its participation in the trend of consolidation in the airline industry were limited, as well as Ryanair's view that Aer Lingus did not have a future as an independent airline."
"7.12 We considered whether Ryanair's minority shareholding would reduce Aer Lingus's effectiveness as a competitor by affecting the commercial policies and strategies available to it. We first considered Ryanair's incentives to use its influence to weaken Aer Lingus's effectiveness as a competitor. We then looked at various mechanisms through which Ryanair's shareholding might influence the commercial policies and strategies available to its rival, considered the likelihood that such effects might arise and assessed the scale of the potential impact on Aer Lingus."
"… for the reasons set out in paragraphs 7.17 to 7.20 (and in particular given the closeness of competition between Ryanair and Aer Lingus and Ryanair's desire to acquire the entirety of Aer Lingus) we found that Ryanair would have the incentive to use its influence to weaken Aer Lingus's effectiveness as a competitor and we would expect Ryanair to act on these incentives. The incentive to weaken Aer Lingus's effectiveness would not exist for a shareholder which was not in competition with Aer Lingus."
(1) affect Aer Lingus's ability to participate in a combination with another airline;
(2) hamper Aer Lingus's ability to issue shares to raise capital;
(3) influence Aer Lingus's ability to manage effectively its portfolio of slots at London Heathrow;
(4) influence Aer Lingus's commercial policy and strategy by giving Ryanair the deciding vote in an ordinary resolution; and
(5) allow Ryanair to raise Aer Lingus's management costs or impede its management from concentrating on Aer Lingus's commercial policy and strategy.
(a) Aer Lingus's ability to participate in a combination with another airline
"7.24 We considered whether Ryanair's shareholding might weaken the effectiveness of Aer Lingus as a competitor by restricting Aer Lingus's ability to manage its costs at a competitive level and/or expand or improve its offering via a combination with another airline. We first set out how Ryanair's minority shareholding might influence Aer Lingus's ability to combine with another airline. We then consider evidence related to the likelihood of Aer Lingus being involved in a combination absent Ryanair's minority shareholding, discussing the general trend in consolidation in the airline industry, the views of airlines, internal documents of Aer Lingus and discussions between Aer Lingus and other airlines since 2006. Finally, we discuss the potential impact of being impeded from combining with Aer Lingus on its effectiveness as a competitor.
7.25 Combinations between airlines are inherently unpredictable and opportunistic, and so it is inevitable that our assessment will require an element of judgement. We do not consider it to be either feasible or necessary to catalogue all potential transactions involving Aer Lingus and another airline and assess the likelihood of each of these having taken place in the period since 2006 or taking place in the foreseeable future. Instead, we take into account a broad range of evidence relating to Aer Lingus including its position in the airline sector and evidence of its discussions with third parties on possible combinations in forming an overall view on the likelihood of Aer Lingus being (or having been) involved in a combination with another airline in the absence of Ryanair's minority shareholding."
"Conclusion on the impact of Ryanair's minority shareholding on Aer Lingus's ability to combine with another airline
7.80 We found that as a consequence of its minority shareholding Ryanair would be able to impede another airline from acquiring full control of Aer Lingus, and that its shareholding would be likely to be a significant impediment to Aer Lingus's ability to merge with, enter into a joint venture with or acquire another airline. This would be likely to act as a deterrent to other airlines considering combining with Aer Lingus. The more significant the transaction being contemplated (all other things being equal), the more likely Ryanair's shareholding would be to impede—or give Ryanair the ability to prevent—the combination from taking place. As discussed in paragraphs 7.16 to 7.22, we considered that Ryanair would have the incentive to use its influence to oppose any combination which it expected to strengthen Aer Lingus's effectiveness as a competitor, or make it harder to acquire the company itself.
7.81 Furthermore, we found that, in the absence of Ryanair's minority shareholding, it was likely that Aer Lingus would have been involved in the period since 2006, or would be involved in the foreseeable future, in a significant acquisition, merger or joint venture. In reaching this view, we took into account the general trend of consolidation in the airline industry and the need to exploit economies of scale and maintain or reduce costs per passenger, which suggested that a combination involving an airline of Aer Lingus's size was likely. We also took into account Ryanair's view that Aer Lingus would be unlikely to have an independent long-term future, and Aer Lingus's view of the importance of scale to its future competitiveness. The Irish Government's stated intention to sell its shares in Aer Lingus at the right time and at the right price also made it more likely that Aer Lingus would be involved in a combination absent Ryanair's minority stake, given the change in ownership this implied.
7.82 The views expressed to us by other airlines did not support Ryanair's assertion that Aer Lingus was an inherently unattractive partner, and we considered that while the characteristics of its network might limit its attractiveness to certain airlines, these factors might impact upon the consideration involved in any transaction that took place rather than act as an absolute deterrent. We also considered that the airline's strong financial position and access to Heathrow would be attractive to potential partners.
7.83 The extent to which we can draw inferences from evidence of discussions between Aer Lingus and other airlines in the period since 2006 is limited because of the presence of Ryanair's minority shareholding throughout this period. Nevertheless the discussions between Aer Lingus and other airlines which had taken place in the period since 2006 suggested to us that possible combinations arise and other airlines considered Aer Lingus to be a credible partner for a combination. While the evidence that we received suggested that it was relatively unlikely that a large European airline would seek to acquire Aer Lingus in the immediate future (and so going forward a merger or acquisition by Aer Lingus was the most likely form of combination), we considered that an acquisition remained a possibility in the longer term, and might have taken place in the period since 2006 absent Ryanair's minority shareholding.
7.84 The scale of any efficencies—in particular economies of scale—arising from a combination would necessarily depend on the identity of the acquirer and the specific nature of the transaction being contemplated. Nevertheless, in our view Aer Lingus was likely to be at a competitive disadvantage because of its relatively small size, and inorganic growth would be required in order for it to remain competitive. A consequence of Ryanair's shareholding impeding or preventing Aer Lingus from combining with other airlines would be to limit Aer Lingus's ability to increase the scale of its operations and reduce its unit costs. This would have the potential to weaken significantly the effectiveness of the competitive constraint Aer Lingus will impose on Ryanair relative to the counterfactual. Certain synergies would be likely to arise from a substantial combination between Aer Lingus and another airline that would not be acheivable via looser forms of cooperation."
(b) Aer Lingus's ability to issue shares to raise capital
"7.92 In summary, we found that Ryanair's ability to block a special resolution gives it influence over Aer Lingus's ability to issue shares and might hamper Aer Lingus's ability to raise capital. Given Aer Lingus's existing balance sheet strength and forecast financial performance, under circumstances of stable trading, no new debt issuance or acquisition activity by Aer Lingus, we found it unlikely that Aer Lingus would need to raise equity in the medium to long term. However, if Aer Lingus needed to increase its share capital in future for a corporate transaction or to optimize its capital structure, Ryanair's ability to restrict it from doing so could cause Aer Lingus to become a less effective competitor on routes between Great Britain and Ireland than it would otherwise be."
(c) Aer Lingus's ability to manage effectively its portfolio of slots at London Heathrow
"(a) Ryanair would be able to influence Aer Lingus's ability to dispose of some of its Heathrow slots;
(b) Aer Lingus would have been likely since 2006, or would in the future be likely to want to sell or lease slots in the context of managing its portfolio of Heathrow slots so as to optimize its route network and timetable; and
(c) a constraint on Aer Lingus's ability to dispose of its slots could reduce its effectiveness as a competitor by limiting its strategic options. This could increase Aer Lingus's costs and restrict its flexibility with regard to its network and timetable, causing it to be a less effective competitor on routes between Great Britain and Ireland than it would otherwise be."
(d) Ryanair's influence over Aer Lingus's commercial policy and strategy by giving Ryanair the deciding vote in an ordinary resolution
(e) Ryanair's ability to raise Aer Lingus's management costs or impede its management from concentrating on commercial policy and strategy
The CC's conclusions on the SLC test
"Conclusions on the effects of the acquisition on Aer Lingus's commercial policy and strategy
7.126 We found that Ryanair's minority shareholding would have affected or would affect Aer Lingus's commercial policy and strategy and inhibit its overall effectiveness as a competitor, albeit without giving Ryanair direct influence over the company's competitive offering on a day-to-day basis. Given the closeness of competition between Ryanair and Aer Lingus and its stated aim of acquiring the entirety of Aer Lingus, we found that Ryanair had an incentive to use its influence to weaken Aer Lingus's effectiveness that would not exist for a shareholder which was not in competition with Aer Lingus.
7.127 In reaching our conclusion, we formed the view that the potential for Ryanair's minority shareholding to impede or prevent Aer Lingus from being acquired by, merging with, entering into a joint venture with or acquiring another airline was of particular significance. We identified a number of ways in which the minority share-holding might impede or prevent Aer Lingus from combining with another airline, including by acting as a deterrent to other airlines considering combining with Aer Lingus, or by allowing Ryanair to block a special resolution, restricting Aer Lingus's ability to issue shares. We found that absent Ryanair's shareholding, it was likely that Aer Lingus would have been involved in the period since 2006 or would be involved in the foreseeable future in the trend of consolidation observed across the airline industry through an acquisition, merger or joint venture. By impeding or preventing Aer Lingus from combining with other airlines, Aer Lingus's ability to increase the scale of its operations and reduce its unit costs would be limited. This would be likely to have reduced or to reduce the effectiveness of the competitive constraint Aer Lingus could impose on Ryanair on routes between Great Britain and Ireland relative to the counterfactual.
7.128 In addition, we found that Ryanair's minority shareholding could limit the commercial policies and strategies available to Aer Lingus by limiting its ability to manage effectively its portfolio of Heathrow slots. We also took account of the possibility, albeit relatively unlikely, that Ryanair would, in certain circumstances, be able to pass or defeat an ordinary resolution at an Aer Lingus general meeting (if other share-holders voted in the same way as Ryanair, the Irish Government were to abstain on a vote, or the Irish Government's shareholding was dispersed). Given Aer Lingus's existing balance sheet strength and forecast financial performance, we found it unlikely that Aer Lingus would need to raise equity in the medium to long term other than in relation to a corporate transaction or to optimize its corporate structure. However, we note that unforeseen events might arise which would require Aer Lingus to raise equity and noted that Ryanair would be able to impede it doing so by blocking a special resolution. The minority shareholding would also increase the likelihood of Ryanair mounting further bids for Aer Lingus relative to the counter-factual.
7.129 We found that the extent of the impact of Ryanair's minority shareholding on Aer Lingus's effectiveness as a competitor was likely to be significant. The importance of scale to airlines was clear from our discussions, with Ryanair itself highlighting Aer Lingus's small scale as an impediment to its long-term survival. We identified a number of significant synergies that would be likely to arise from a combination between Aer Lingus and another airline, over and above those that might arise via looser forms of cooperation. Given wider trends in the airline industry, we would expect the pressure on Aer Lingus's cost base—and the need for additional scale to remain competitive—to become stronger over time. In addition, given the strategic importance of Aer Lingus's Heathrow slots and the importance of its Heathrow services to its UK operations, there could be a significant impact on Aer Lingus arising from its reduced ability to manage its slot portfolio in the context of optimizing the network or timetable of its UK routes. Additional bids by Ryanair for the out-standing shares in Aer Lingus could significantly disrupt Aer Lingus's commercial policy and strategy. Although relatively unlikely, if Ryanair were to achieve a majority at a general meeting, the implications for Aer Lingus's competitive capability could be very significant because of the importance of company decisions put to a shareholder vote by ordinary resolution.
7.130 Overall, while we could not predict with certainty the specific mechanism by which a harmful competitive effect would manifest itself (or would have done in the period since 2006), we formed the expectation, based on the evidence that we had gathered and the various mechanisms that we had assessed, that either in the period since 2006 or in the foreseeable future, Aer Lingus's commercial policy and strategy would have been impeded or would be impeded by Ryanair's minority shareholding. We concluded that the constraints on Aer Lingus's ability to implement its own commercial policy and strategy were likely to make Aer Lingus a less effective competitor than it would otherwise be across its network generally, and specifically as a rival to Ryanair on routes between Great Britain and Ireland."
(1) might incentivise Aer Lingus's management to take account of Ryanair's interests in its own decision making;
(2) would change Ryanair's incentives such that it competes less fiercely with Aer Lingus; or
(3) would increase the effectiveness of any existing coordination between Ryanair and Aer Lingus, or increase the likelihood of coordination between them in the future.
"We conclude that Ryanair's acquisition of a 29.82 per cent shareholding in Aer Lingus has led or may be expected to lead to an SLC in the markets for air passenger services between Great Britain and Ireland."
Remedies
"Duty of sincere cooperation
8.4 As set out in paragraph 3.7, Ryanair's third public bid for Aer Lingus was prohibited by the European Commission on 27 February 2013. On 8 May 2013, Ryanair filed an appeal to this decision to the General Court. These proceedings are pending.
8.5 We considered the applicability of the duty of sincere cooperation with the institutions of the EU pursuant to Article 4(3) TEU in relation to both our substantive assessment and the implementation of remedial action. In paragraphs 7.3 to 7.11 we discussed the relevance of the European Commission's findings to our substantive assessment in this case and concluded that they do not preclude the CC's finding of an SLC. In this section, we consider the application of the CC's duty of sincere cooperation to the implementation of remedial action.
8.6 Ryanair stated that the CC must determine (on the facts) whether a particular decision could conflict with a decision of the European Court or European Commission. This assessment may entail a balancing exercise. However, once it is established that a decision could conflict with a decision under EU law, the obligation not to reach a conflicting decision is absolute, being a matter of law under Article 4(3) TEU. Consequently, Ryanair said that, in light of the ongoing EU appeals process of the European Commission decision to prohibit its third bid for Aer Lingus, the CC was prohibited from reaching a decision on any divestment remedy, which must be stayed pending resolution of the EU appeals process.
8.7 Ryanair stated that the CC had already recognized that it would not proceed to determine any issue of remedy while Ryanair's appeal of the EU Decision was ongoing and would avoid taking a final decision that could conflict with a decision of the European Commission which, Ryanair suggested, must include any appeals of such a decision.
8.8 Aer Lingus stated that an order requiring divestment of the minority stake could not create legal conflict with any future decision of the European Commission, first because those two (hypothetical) decisions involved the application of different legal instruments to different facts, and second because Ryanair could reacquire the shares in the context of an approved bid.
8.9 We do not agree with Ryanair's submission that the CC is prohibited, by its previous statements or those of the UK courts, from implementing remedial action. We believe that we must carry out a balancing exercise, taking into account all the circumstances of the case in assessing whether Article 4(3) TEU requires us to defer remedial action. We considered the following factors in reaching our decision:
(a) the lack of jurisdictional overlap between what has been considered by the European Commission and the CC (the European Commission considered only the public bid made to increase Ryanair's shareholding to 100 per cent and not the minority shareholding);
(b) the nature and terms of the CC's findings of an SLC;
(c) the nature and terms of the European Commission's prohibition decision;
(d) the CC's duty under section 41 of the Act to achieve as comprehensive a solution as is reasonable and practicable to any SLC found and any adverse effects arising from it;
(e) the likely extent of any harm to competition caused by delaying any action in relation to the SLC found;
(f) the nature and scope of the Ryanair appeal against the European Commission's decision;
(g) the likelihood that findings of the European Court(s) and/or, on remittal, the European Commission, in relation to the public bid would conflict with the substantive analysis in the CC's report;
(h) the likelihood that findings of the European Court(s) and/or, on remittal, the European Commission in relation to the public bid would conflict with any remedial action;
(i) the ability of the UK competition authorities to revisit any remedies which it has ordered, either under section 92 of the Act or by building into the remedies themselves provision for what should happen in the event that a public bid is approved by the European Commission;
(j) the practical impact that divesting all or part of the minority stake would have on Ryanair's ability to launch and successfully complete a public bid in the event that the decision of the European Commission is overturned and the public bid is subsequently approved;
(k) any impact of Article 1 Protocol 1 of the European Convention on Human Rights, including whether, and if so, what burden there might be on Ryanair of divesting and reacquiring the minority stake, and/or potentially being unable to reacquire the minority stake, set against the public interest in expediting remedial action, as well as in avoiding further consideration by the CC, as might be required in the event of a delay in implementation;
(l) the extent to which any potential impact upon Ryanair should be discounted on the basis that any acquisition was always subject to merger control scrutiny;
(m) the practicality of any interim solution (pending the outcome of the European process), such as temporary transfer of Ryanair's shares to a trustee, and or an amended version of the interim order currently in place, and its likely adequacy in preventing harm to competition during any interim period;
(n) the conduct of Ryanair in launching multiple bids for some or all of the shares in Aer Lingus, and the timing of those bids or related actions; and
(o) the conduct by Ryanair of its proceedings in the European courts and, in particular, the absence of any interim measures being sought or imposed.
8.10 We note that the CAT, the Court of Appeal and the General Court have confirmed that the CC has exclusive jurisdiction to analyse the competitive effects of Ryanair's minority shareholding in Aer Lingus.
8.11 We also note that we have analysed the impact of Ryanair's minority shareholding in Aer Lingus on the latter's effectiveness as a competitor on routes between Great Britain and Ireland, taking into account the relevance of the European Commission's decision where appropriate. In our view there is no conflict arising from the CC's finding of an SLC and the European Commission's SIEC findings.
8.12 We recognize that Ryanair has challenged the European Commission's assessment of the final commitments offered by Ryanair. We are also mindful of the importance of complying with our EU obligations and we have therefore considered the matter with care. However, having had regard to the matters mentioned in paragraph 8.9, including the grounds of challenge in Ryanair's application to the General Court, we view the prospect of a conflict between the substantive analysis or outcome of the CC's inquiry and that of the institutions of the EU as relatively remote. In our view, the remedial action that we propose taking could not be said to jeopardize the attainment of the EU's objectives.
8.13 We considered whether interim arrangements would be effective in mitigating the SLC finding pending the conclusion of the EU appeals process. For the reasons set out in paragraph 8.103, we did not find that interim relief (by way of the current—or supplementary—interim measures) would be effective in addressing the SLC that we had found and hence were not persuaded that delaying the implementation of remedial action was justified."
"(a) A Divestiture Trustee should be appointed from the outset to sell the divestiture package to suitable purchasers.
(b) The divestiture may be implemented via an upfront buyer process to a single purchaser or via a stock market placement of the shares, or by another process identified by the Divestiture Trustee and approved by the CC.
(c) The Divestiture Trustee will review whether a purchaser satisfies the CC's suitability criteria (see Appendix K), and will consult with the CC as appropriate.
(d) Ryanair may nominate parties to act as Divestiture Trustee for approval by the CC. The CC may appoint its own choice of Divestiture Trustee if Ryanair is unable to identify appropriate candidates within specified timescales. Ryanair is responsible for remuneration of the Divestiture Trustee.
(e) The divestiture period is [(?] months from Final Determination."
PART 4: RYANAIR'S GROUNDS OF CHALLENGE
Ground 1: duty of sincere cooperation
"Pursuant to the principle of sincere cooperation, the Union and the Member States shall, in full mutual respect, assist each other in carrying out tasks which flow from the Treaties.
The Member States shall take any appropriate measure, general or particular, to ensure fulfilment of the obligations arising out of the Treaties or resulting from the acts of the institutions of the Union.
The Member States shall facilitate the achievement of the Union's tasks and refrain from any measure which could jeopardise the attainment of the Union's objectives."
"4(1) In accordance with Article 5, competences not conferred upon the Union in the Treaties remain with the Member States."
"5(1) The limits of Union competences are governed by the principle of conferral. The use of Union competences is governed by the principles of subsidiarity and proportionality.
…
(3) Under the principle of subsidiarity, in areas which do not fall within its exclusive competence, the Union shall act only if and in so far as the objectives of the proposed action cannot be sufficiently achieved by the Member States, either at central level or at regional and local level, but can rather, by reason of the scale or effects of the proposed action, be better achieved at Union level.
The institutions of the Union shall apply the principle of subsidiarity as laid down in the Protocol on the application of the principles of subsidiarity and proportionality. National Parliaments ensure compliance with the principle of subsidiarity in accordance with the procedure set out in that Protocol."
"47. It now falls to examine the consequences of that division of competence as regards the specific application of the Community competition rules by national courts. Account should here be taken of the risk of national courts taking decisions which conflict with those taken or envisaged by the Commission in the implementation of Articles 85(1) and 86, and also of Article 85(3). Such conflicting decisions would be contrary to the general principle of legal certainty and must, therefore, be avoided when national courts give decisions on agreements or practices which may subsequently be the subject of a decision by the Commission."
"50. If the conditions for the application of Article 85(1) are clearly not satisfied and there is, consequently, scarcely any risk of the Commission taking a different decision, the national court may continue the proceedings and rule on the agreement in issue. It may do the same if the agreement's incompatibility with Article 85(1) is beyond doubt and, regard being had to the exemption regulations and the Commission's previous decisions, the agreement may on no account be the subject of an exemption decision under Article 85(3).
…
52. If the national court finds that the contract in issue satisfies those formal requirements and if it considers in the light of the Commission's rules and decision-making practices, that that agreement may be the subject of an exemption decision, the national court may decide to stay the proceedings or to adopt interim measures pursuant to its national rules of procedure. A stay of proceedings or the adoption of interim measures should also be envisaged where there is a risk of conflicting decisions in the context of the application of Articles 85(1) and 86."
"49. It is also clear from the case-law of the Court that the Member States' duty under Article 5 of the EC Treaty to take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising from Community law and to abstain from any measure which could jeopardise the attainment of the objectives of the Treaty is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts (see, to that effect, Case C-2/97 IP v Borsana [1998] ECR I-8597, paragraph 26).
...
51. The Court has held, in paragraph 47 of Delimitis, that in order not to breach the general principle of legal certainty, national courts must, when ruling on agreements or practices which may subsequently be the subject of a decision by the Commission, avoid giving decisions which would conflict with a decision contemplated by the Commission in the implementation of Articles 85(1) and 86 and Article 85(3) of the Treaty.
52. It is even more important that when national courts rule on agreements or practices which are already the subject of a Commission decision they cannot take decisions running counter to that of the Commission, even if the latter's decision conflicts with a decision given by a national court of first instance.
53. In that connection, the fact that the President of the Court of First Instance suspended the application of Decision 98/531 until the Court of First Instance has given judgment terminating the proceedings before it is irrelevant. Acts of the Community institutions are in principle presumed to be lawful until such time as they are annulled or withdrawn (Case C-137/92 P Commission v BASF and Others [1994] ECR I-2555, paragraph 48). The decision of the judge hearing an application to order the suspension of the operation of the contested act, pursuant to Article 185 of the Treaty, has only provisional effect. It must not prejudge the points of law or fact in issue or neutralise in advance the effects of the decision subsequently to be given in the main action (order in Case C-149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I-2165, paragraph 22).
54. Moreover, if a national court has doubts as to the validity or interpretation of an act of a Community institution it may, or must, in accordance with the second and third paragraphs of Article 177 of the Treaty, refer a question to the Court of Justice for a preliminary ruling.
55. If, as here in the main proceedings, the addressee of a Commission decision has, within the period prescribed in the fifth paragraph of Article 173 of the Treaty, brought an action for annulment of that decision pursuant to that article, it is for the national court to decide whether to stay proceedings until a definitive decision has been given in the action for annulment or in order to refer a question to the Court for a preliminary ruling.
56. It should be borne in mind in that connection that application of the Community competition rules is based on an obligation of sincere cooperation between the national courts, on the one hand, and the Commission and the Community Courts, on the other, in the context of which each acts on the basis of the role assigned to it by the Treaty.
57. When the outcome of the dispute before the national court depends on the validity of the Commission decision, it follows from the obligation of sincere cooperation that the national court should, in order to avoid reaching a decision that runs counter to that of the Commission, stay its proceedings pending final judgment in the action for annulment by the Community Courts, unless it considers that, in the circumstances of the case, a reference to the Court of Justice for a preliminary ruling on the validity of the Commission decision is warranted."
"15. The following introductory remarks must be made with regard to the question of when there is a conflict or the risk of a conflict between, on the one hand, a decision of the Commission applying Articles 85(1) and 86 of the EC Treaty to a specific dispute and, on the other, the decision of a national court on the same question.
16. In order to establish such a form of conflict, a connection between the legal problem which arises before the national courts and that being examined by the Commission is not in itself sufficient. Nor is the similarity of the legal problem where the legal and factual context of the case being examined by the Commission is not completely identical to that before the national courts. The Commission's decision may provide important indications as to the appropriate way to interpret Articles 85(1) and 86, but in this case there is no risk, from a purely legal point of view, of the adoption of conflicting decisions. Such a risk only arises when the binding authority which the decision of the national court has or will have conflicts with the grounds and operative part of the Commission's decision. Consequently the limits of the binding authority of the decision of the national court and the content of the Commission's decision must be examined every time."
"At one stage counsel for Areva submitted that the terms of paragraph 58 of the ECJ's judgment in Masterfoods required the national court to abstain from any further proceedings in the action save any which could properly be described as "interim measures to safeguard the interests of the parties pending final judgment". He submitted that any requirement for service of defences, disclosure of documents or other normal interlocutory steps in preparation for a trial were outside the scope of what the ECJ considered to be permissible. I reject that submission. First, the terms of paragraphs 55 and 57 show that it is for the national courts to decide when to stay its proceedings. The object is to avoid any decision running counter to that of the Commission or the community courts. Paragraph 58 deals only with the position when the national court has stayed the proceedings. It says nothing about the obligations of the national courts before that stay has become effective. Indeed it would be contrary to the very division of functions to which the ECJ referred in paragraphs 47 to 49 to conclude that it had the jurisdiction to interfere with the procedures of the national courts in areas where there was no risk of conflicting decisions. Given that objective it is for the national court to consider, in accordance with its own procedures, how best to achieve it."
"It is, in my view, clear that both ECMR and the Enterprise Act confer extensive powers of investigation on, respectively, the Commission and the OFT and Competition Commission both before and after a notification or reference is made. Although not looking for quite the same thing, those respective bodies would be investigating the same events. The definition of a 'concentration having a community dimension' contained in ECMR, for which the Commission would be looking, is not the same as a 'merger situation' as defined in the Enterprise Act which would concern OFT. Accordingly, there could be no question of the conclusions of one being adopted without further enquiry by the other. There is, however, considerable overlap in the exercise of the two jurisdictions. The processes of an OFT investigation with a view to possible referral to the Competition Commission, and of any enquiry by that Commission before its decision are, in both cases, intensive. They are likely to involve extensive gathering of information from third parties as well as from the companies directly concerned, working papers submitted for comment, oral hearings, and detailed examination of the internal workings of the companies. They may involve proposals as to remedies and oral hearings directed to enquiring into them. The 'Issues Paper' which has now been provided by OFT to Ryanair in the present case is an example. There is no occasion here to publish its detailed contents, but it runs to 224 paragraphs and traverses such matters as shareholder voting patterns, capitalisation, the Articles of Association and restrictions on airport slot disposal, the catchment areas of airports, route comparisons, competition and efficiency incentives and the level of present or anticipated co-ordination. All this is under intensive investigation, and preliminary views are being expressed, before there is even a reference to the Competition Commission, let alone an enquiry by it. It is, to my mind, self-evident that concurrent investigations in the UK and in Europe would be both oppressive and mutually destructive. I accept, therefore, that the duty of sincere cooperation does go beyond avoiding inconsistent decisions and extends to overlapping jurisdictions."
"1. In its letter to the Tribunal of July 26, 2012 (written at the request of the CC), DG Competition explained that the CC was entitled to continue an investigation into the minority shareholding under UK law, but warned that "national competition authorities should not, on the basis of their national law, take decisions that would compromise decisions or possible decisions by the European Commission under the EU Merger Regulation."
2. In oral submissions to the Tribunal, Mr Beard QC for the CC stated: "[the CC] would want to ensure that no concrete steps were taken in relation to remedies that compromised – I think that was the work the Commission used in its letter – the outturn that the Commission might take."
3. In its judgment of 8 August 2012, the Tribunal stated at [84]: "Of course, as Mr Beard QC, for the CC, accepted, the CC remains subject to the duty of sincere cooperation and must avoid taking any final decision in respect of the Minority Holding which would, or could, conflict with the European Commission's ultimate conclusion on the compatibility of the Public Bid with the common market. That does not mean that the CC is precluded, as a matter of law, from taking any further steps in the Investigation.""
(1) Whether or not the divestiture remedy is in conflict or potential conflict with the duty of sincere cooperation is ultimately one for this Tribunal on the challenge before it.
(2) We accept that there is no conflict arising from the CC's finding of an SLC and the European Commission's SIEC findings.
(3) Paragraph 8.9 of the Final Report is unsatisfactory in that whilst it identifies a list of factors, it did not go on to state what weight it placed on these factors individually.
(4) Whilst we accept that there may be a balancing exercise in determining how to avoid a conflict or potential conflict, if there is in fact a real conflict (rather than a remote possibility) then, in general, a decision or step must not be taken. Whilst there may be cases where it is appropriate to proceed even where a real conflict or a potential conflict arises, this is only likely to arise in exceptional circumstances, such as in British Aggregates Association & Ors v. HM Treasury [2013] EWCA Civ 720. In that case, such exceptional circumstances arose from the lengthy period of a stay (11 years) that had applied in the Court of Appeal while the matter (giving rise to the conflict) was before the EU institutions.
(5) We accept and it is common ground that in this matter there is no overlapping jurisdiction between the EU institutions and the CC. That is because it is abundantly clear from the position taken by both the CC and the European Commission, and confirmed by this Tribunal and the Court of Appeal in the earlier Ryanair proceedings, that each institution is acting within its respective area of jurisdiction. In particular, the minority stake which is the subject of the CC's decision is not a "concentration with a Community dimension" and thus the jurisdiction of the European Commission pursuant to Article 21(3) EUMR is not engaged.
(1) If Ryanair's shareholding is reduced to 5% it would be much harder for it to launch a fourth bid for the remainder of the shares.
(2) It would not be in accordance with the European Union's objectives for the CC to impose a remedy which makes it much harder to succeed in relation to a bid which has been cleared by the European Commission, which may be the ultimate outcome of the appeal before the General Court and any reconsideration by the European Commission in the light of any successful appeal.
"We did, however, recognize that the minority shareholding would increase the likelihood of further bids by Ryanair relative to a situation in which Ryanair had not owned the shares. With a 29.82 per cent shareholding it would have a smaller absolute number of shares to acquire and there would be a reduced likelihood of a counterbidder…"
"…
(2) For the achievement of the aims of the Treaty, Article 3(1)(g) gives the Community the objective of instituting a system ensuring that competition in the internal market is not distorted. Article 4(1) of the Treaty provides that the activities of the Member States and the Community are to be conducted in accordance with the principle of an open market economy with free competition. These principles are essential for the further development of the internal market.
(3) The completion of the internal market and of economic and monetary union, the enlargement of the European Union and the lowering of international barriers to trade and investment will continue to result in major corporate reorganisations, particularly in the form of concentrations.
(4) Such reorganisations are to be welcomed to the extent that they are in line with the requirements of dynamic competition and capable of increasing the competitiveness of European industry, improving the conditions of growth and raising the standard of living in the Community.
(5) However, it should be ensured that the process of reorganisation does not result in lasting damage to competition; Community law must therefore include provisions governing those concentrations which may significantly impede effective competition in the common market or in a substantial part of it.
(6) A specific legal instrument is therefore necessary to permit effective control of all concentrations in terms of their effect on the structure of competition in the Community and to be the only instrument applicable to such concentrations. Regulation (EEC) No 4064/89 has allowed a Community policy to develop in this field. In the light of experience, however, that Regulation should now be recast into legislation designed to meet the challenges of a more integrated market and the future enlargement of the European Union. In accordance with the principles of subsidiarity and of proportionality as set out in Article 5 of the Treaty, this Regulation does not go beyond what is necessary in order to achieve the objective of ensuring that competition in the common market is not distorted, in accordance with the principle of an open market economy with free competition.
…
(8) The provisions to be adopted in this Regulation should apply to significant structural changes, the impact of which on the market goes beyond the national borders of any one Member State. Such concentrations should, as a general rule, be reviewed exclusively at Community level, in application of a 'one-stop shop' system and in compliance with the principle of subsidiarity. Concentrations not covered by this Regulation come, in principle, within the jurisdiction of the Member States.
…
(14) The Commission and the competent authorities of the Member States should together form a network of public authorities, applying their respective competences in close cooperation, using efficient arrangements for information- sharing and consultation, with a view to ensuring that a case is dealt with by the most appropriate authority, in the light of the principle of subsidiarity and with a view to ensuring that multiple notifications of a given concentration are avoided to the greatest extent possible. Referrals of concentrations from the Commission to Member States and from Member States to the Commission should be made in an efficient manner avoiding, to the greatest extent possible, situations where a concentration is subject to a referral both before and after its notification.
…
(20) It is expedient to define the concept of concentration in such a manner as to cover operations bringing about a lasting change in the control of the undertakings concerned and therefore in the structure of the market. It is therefore appropriate to include, within the scope of this Regulation, all joint ventures performing on a lasting basis all the functions of an autonomous economic entity. It is moreover appropriate to treat as a single concentration transactions that are closely connected in that they are linked by condition or take the form of a series of transactions in securities taking place within a reasonably short period of time."
Ground 2: procedural fairness
"(1) Subsection (2) applies where the relevant authority is proposing to make a relevant decision in a way which the relevant authority considers it likely to be adverse to the interests of a relevant party.
(2) The relevant authority shall, so far as practicable, consult that party about what is proposed before making that decision.
(3) In consulting the party concerned, the relevant authority shall, so far as practicable, give the reasons of the relevant authority for the proposed decision.
(4) In considering what is practicable for the purposes of this section the relevant authority shall, in particular, have regard to –
(a) any restrictions imposed by any timetable for making the decision; and
(b) any need to keep what is proposed, or the reasons for it, confidential …".
"(1) This section applies to specified information which relates to –
(a) the affairs of an individual;
(b) any business of an undertaking.
(2) Such information must not be disclosed –
(a) during the lifetime of the individual, or
(b) while the undertaking continues in existence,
unless the disclosure is permitted under this Part."
There follow various provisions which permit disclosure, which may be summarised as follows:
(1) Where the information has previously, and properly, been disclosed to the public (Section 237(3));
(2) Where the disclosure is consented to (Section 239);
(3) Where the disclosure is required for the purpose of an EU obligation (Section 240);
(4) Where the disclosure is for the purpose of facilitating the CC's functions (Section 241);
(5) Where the disclosure is done in connection with civil proceedings (Section 241A) or criminal proceedings (Section 242) or to an overseas public body (Section 243).
"(1) A public authority which holds information to which section 237 applies may disclose that information for the purpose of facilitating the exercise by the authority of any function it has under or by virtue of this Act or any other enactment.
(2) If information is disclosed under subsection (1) so that it is not made available to the public it must not be further disclosed by a person to whom it is so disclosed other than with the agreement of the public authority for the purpose mentioned in that subsection. …".
The CC's duty to consult under section 104 is a function of the CC within the meaning of section 241(1).
"(1) A public authority must have regard to the following considerations before disclosing any specific information (within the meaning of section 238(1)).
(2) The first consideration is the need to exclude from disclosure (so far as practicable) any information whose disclosure the authority thinks is contrary to the public interest.
(3) The second consideration is the need to exclude from disclosure (so far as practicable) –
(a) commercial information whose disclosure the authority thinks might significantly harm the legitimate business interests of the undertaking to which it relates, or
(b) information relating to the private affairs of an individual whose disclosure the authority thinks might significantly harm the individual's interests.
(4) The third consideration is the extent to which the disclosure of the information mentioned in subsection (3)(a) or (b) is necessary for the purpose for which the authority is permitted to make the disclosure."
"(a) First, it is a means of achieving due process and of ensuring that by having a better understanding of the CC's analysis affecting them, the main parties in inquiries are treated fairly.
(b) Secondly, it enables other interested persons, such as consumers and their representative bodies, suppliers and customers and other persons who may be affected by the CC's decision, to understand the issues that the CC is considering and then to form effectively their input to the process.
(c) Thirdly, transparency helps main parties and other interested persons when they are providing the CC with information, including identifying inaccuracies and incomplete or misleading information.
(d) Fourthly, as a result of the above, the effectiveness, efficiency and quality of CC inquiries and decisions are improved."
"4.4 If any of these information gateways apply and before disclosing any specified information, the CC must have regard to three considerations:
(a) the need to exclude from disclosure (so far as practicable) any information whose disclosure the CC thinks is contrary to the public interest;
(b) the need to exclude from disclosure (so far as practicable):
(i) commercial information whose disclosure the CC thinks might significantly harm the legitimate business interests of the undertaking to which it relates; or
(ii) information relating to the private affairs of an individual whose disclosure the CC thinks might significantly harm the individual's interests; and
(c) the extent to which the disclosure of the information mentioned in (b)(i) or (ii) is necessary for the purpose for which the CC is permitted to make disclosure.
4.5 These three considerations apply on each occasion that the CC is considering disclosure of specified information: for example, in correspondence, at hearings and in a disclosed or published document. The Act does not contain specific provision for excisions from reports, save in some cases concerning public interest considerations.
4.6 The CC will give special consideration to the potential harms associated with disclosure where 'sensitive information' is concerned, sensitive information being information referred to in the first and second of the considerations (ie 4.4(a) and (b)). The CC's processes provide persons with the opportunity to state a view on the sensitivity of the information they have provided (see Part 9). It is the Group's responsibility to consider whether the disclosure of the information claimed by a party to be sensitive would in fact harm a person. If harm or potential harm is established, the Group will go on to consider whether the circumstances of the case merit disclosure of the information in any event."
"5.1 When determining how best to achieve the transparency aims of the CC (see paragraph 2.2), Groups must have regard to the statutory framework (see Part 4) and the CC's Rules and guidance published by the CC or the CC Chairman relating to the CC's process and conduct of investigations.
5.2 Additionally, Groups should have regard to:
(a) the desirability of Groups taking a consistent approach when applying the principles of disclosure;
(b) the desirability of avoiding unnecessary burdens on business, the need to conduct investigations effectively and efficiently, the need to reach properly reasoned decisions within statutory and administrative timescales;
(c) the need to disclose information supplied to the CC so that interested persons (main parties or other interested persons) are able to comment on matters affecting them and so that they can draw to the CC's attention any inaccuracies, incomplete or misleading information;
(d) the need to protect some information provided to it in the course of its inquiries or reviews and the importance of maintaining the CC's reputation for doing so;
(e) the CC's analysis as it affects them; and
(f) the desirability of making sufficient information available to the public so that the public may become aware of the main issues arising in inquiries and reviews and are in a more informed position to provide information to the Group.
These considerations may inform the Group as to whether particular information should be disclosed, to whom and the manner of disclosure.
5.3 For the most part these factors will not be in conflict with the CC's transparency aims and its statutory functions. However, when decisions are finely balanced, Groups should pay particular attention to the need to achieve due process."
"6.12 During inquiries or reviews there will be numerous oral communications between a party and the CC including hearings, meetings and telephone conversations. The purpose of such communications and the nature of the information exchanged will vary, and these factors will be relevant to the consideration of whether any disclosure is necessary. For example, communications concerned with the administration and conduct of the case will seldom, if ever, merit disclosure. In contrast, hearings are occasions on which submissions relevant to the CC's analysis are made by main or third parties, so that it is necessary for Groups to consider the appropriateness of disclosing the content of hearings and the manner of that disclosure.
6.13 For hearings with main or third parties held by Groups or CC staff, Groups should consider whether any points arising should be disclosed to another main or third party. Generally, when hearings are held in private (including joint hearings), transcripts or notes prepared of the hearings should not be disclosed except to the parties in attendance. However, Groups should consider the need to disclose key arguments by providing a summary of the key points (such an approach would help ensure consistency with the approach to written submissions (see paragraphs 6.4 to 6.8)). In contrast, the transcripts of round-table hearings with experts should be disclosed and may often be suitable for publication.
6.14 When preparing summaries of key points, Groups should have regard to the need to exclude confidential information. Generally, summaries should be disclosed through publication. However, there may be occasions when it is not appropriate to disclose the summaries due to the sensitivity of the information or the identity of the person providing evidence (or both). The information may, for example, refer to a party's future business strategy. In such circumstances, Groups will need to consider whether alternative means of disclosure of the key points raised is appropriate."
"7.1 The CC's Rules require the CC to publish a number of documents, notably the provisional findings and notice of possible remedies, during an investigation. Additionally, the CC has developed a practice of consulting on its provisional decision on remedies (usually through disclosure to the merger parties in merger inquiries and publication in market investigations). The disclosure of provisional findings and a provisional decision on remedies is the main means by which the CC ensures due process and fulfils its duty to consult on certain decisions under section 104 of the Act. When reviewing remedies, the CC similarly publishes a provisional decision either before or as part of publishing a notice of intention to vary or terminate undertakings or orders."
"9.7 The following are examples of information the disclosure of which may be harmful or which may need to be protected. In such cases, if a Group considers that disclosure is necessary, it will need to consider the manner of disclosure:
(a) financial information or data relating to a business that is less than two years old;
(b) responses to surveys (in aggregate or individually) the disclosure of which could be harmful to a firm or individual or where the identity of the person providing the information should be protected;
(c) information relating to the future strategy of a business or information relating to the past strategy of a business; and
(d) information which, if disclosed, may adversely affect the competitive process in the market."
"9.14 Groups will often have to consider how information contained in any disclosed documents should be presented or how access should be allowed to confidential information in order to provide protection. There are a number of possible ways in which confidential information may be protected including:
(a) provision of ranges as an alternative to providing exact figures (for example, when indicating market shares (see paragraph 9.16));
(b) provision of aggregated data as an alternative to individual responses or data (for example, by aggregating sales or purchase figures or by providing a summary of responses from customers);
(c) provision of aggregated summaries of submissions and responses to questionnaires;
(d) excision of the confidential information from documents (for example, of names, locations and data) when the information excised is not material to the CC's inquiries or its decision or where the excision does not affect the comprehension of the document for the reader concerned;
(e) anonymizing the information;
(f) disclosure to one or more parties but without publication;
(g) disclosure subject to restrictions (for example, disclosure to parties' professional advisers subject to receipt of undertakings); and
(h) use of a data room (for example, when a Group considers that access to specific data should be provided but that the sensitivity of the information concerned necessitates additional safeguards to protect the information (see paragraphs 9.17 to 9.19)).
9.15 Of the forms identified in paragraph 9.14, the first four methods will be the usual approaches to take. The sixth, (f) is generally applicable when a Group considers it necessary to disclose a working paper (or part of a working paper) to a party for reasons of due process, and the information is pertinent to one party only. This may also be the method deployed when a Group is concerned that wider publication could be harmful to the functioning of the market."
"What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."
"39. We consider the following propositions to be clear:
(1) The starting point in considering the Commission's duty to consult must be the Act, which deals expressly with the Commission's responsibilities in this regard, and which also makes provision for the protection of confidential information. ... Sections 169(2) and (3) [104(2) and (3)] of the Act require the Commission to consult before making a decision, and to give reasons for that decision before it is made, but in neither case is this obligation absolute. It is qualified ("so far as practicable"), in particular by the Commission's duties in relation to specified information ….
(2) However, as is clear from section 241, the protection of specified information can give way "for the purpose of facilitating the exercise by the authority of any function it has under or by virtue of this Act", and one of the functions of the Commission is the Commission's duty to consult under section 169 [104] of the Act.
(3) The Act thus establishes both the duty to consult and the duty to protect confidential (specifically, "specified") information. Section 244 … then describes three conditions to which the Commission should – "so far as practicable" – have regard "before disclosing any specified information".
(4) The Act thus contains a fairly comprehensive code dealing with the duty to consult and the duty to protect confidential information. There is nothing in the Act which obliges the Commission to withhold material that ought to be disclosed pursuant to the Commission's section 169 [104] duty to consult, simply because that would involve the disclosure of specified information. But, conversely, the Commission is not obliged to disclose each and every piece of specified information as part of its duty to consult. We consider that the Act contains a perfectly clear and workable code. Although we have had in mind the statement in Lloyd v. McMahon [1987] 1 AC 702-703 that "it is well-established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness", we do not consider it necessary to imply into the Act anything by way of additional safeguard. The provisions of the Act are, in themselves, quite sufficient for this purpose.
(5) The Commission's guidance in relation to confidential information as set out in the CC7 Guidance is entitled to great weight. None of the Applicants criticised this guidance, and it appears to set out a rational and helpful approach to dealing with specified information.
(6) Moreover, whilst what is a fair process in the context of the Act is one for the Tribunal as a matter of law, the Commission's approach in any given case is entitled to great weight. The consideration of the potentially competing interests of due process and the protection of confidential information is a nuanced one, to be undertaken in light of all the circumstances. It is the Commission, and not the Tribunal, that stands in the front line when assessing such matters, and the Tribunal should be slow to second-guess decisions of the Commission, in particular as to how confidential certain material is, and how best to protect the confidentiality in that material. We have well in mind the statement of Lloyd LJ in R. v. Panel on Take-Overs and Mergers, ex parte Guinness plc [1990] 1 QB 146 at 184:
"Mr Buckley argued that the correct test is Wednesbury unreasonableness, because there could, he said, be no criticism of the way in which the panel reached its decision on 25 August. It is the substance of that decision, viz., the decision not to adjourn the hearing fixed for 2 September, which is in issue. I cannot accept that argument. It confuses substance and procedure. If a tribunal adopts a procedure which is unfair, then the court may, in the exercise of its discretion, seldom withheld, quash the resulting decision by applying the rules of natural justice. The test cannot be different, just because the tribunal decides to adopt a procedure which is unfair. Of course the court will give great weight to the tribunal's own view of what is fair, and will not lightly decide that a tribunal has adopted a procedure which is unfair, especially so distinguished and experienced a tribunal as the panel. But in the last resort the court is the arbiter of what is fair. I would therefore agree with Mr. Oliver that the decision to hold the hearing on 2 September is not to be tested by whether it was one which no reasonable tribunal could have reached."
In short, whilst it is for the Tribunal to decide what is and what is not fair, the Commission's approach should be given "great weight".
(7) Finally, whilst Lord Mustill's sixth proposition refers to a person affected by a decision being informed of the "gist" of the case which he has to answer, what constitutes the "gist" of a case is acutely context-sensitive. Indeed, "gist" is a peculiarly vague term. Competition cases are redolent with technical and complex issues, which can only be understood, and so challenged or responded to, when the detail is revealed. Whilst it is obviously, in the first instance, for the Commission to decide how much to reveal when consulting, we have little doubt disclosing the "gist" of the Commission's reasoning will often involve a high level of specificity. Indeed, this can be seen in the Commission's practice, described in paragraph 7.1 of the CC7 Guidance, of disclosing its provisional findings as part of its consultation process. This point is well-illustrated by the approach taken by the Court of Appeal in R (Eisai Limited) v. National Institute for Health and Clinical Excellence [2008] EWCA Civ 438, which concerned the judicial review of guidance issued by NICE in relation to the use of a particular drug. Although NICE's procedures involved "a remarkable degree of disclosure and of transparency in the consultation process" (at [66]), nevertheless procedural fairness required the release of still more material - in this case, the release of a fully executable version of an economic model used by NICE, and not merely a "read only" version – so that consultees could fully check and comment on the reliability of the economic model upon which NICE had based its decision (see [49])."
(1) Ryanair's shareholding would be likely to act as a deterrent to other airlines considering combining with Aer Lingus (paragraph 7.80);
(2) In the absence of Ryanair's minority shareholding, it was likely that Aer Lingus would have been involved in the period since 2006, or would be involved in the foreseeable time in the future, in a significant acquisition, merger or joint venture (paragraph 7.81);
(3) A consequence of Ryanair's shareholding impeding or preventing Aer Lingus from combining with other airlines would be to limit Aer Lingus's ability to increase the scale of its operations and reduce its unit costs, having the potential to weaken significantly the effectiveness of the competitive constraint Aer Lingus will impose on Ryanair relative to the counterfactual (paragraph 7.84).
(1) Ryanair's incentives as a rival airline which was keen to acquire Aer Lingus;
(2) Ryanair's ability to act on those incentives by virtue of its shareholding;
(3) The desirability for Aer Lingus to consolidate and its stated objective to achieve inorganic growth;
(4) The trend in the airline industry for consolidation;
(5) Aer Lingus was a credible partner for consolidation;
(6) The anticipated cost savings and synergies that would result from a consolidation.
(1) The Booz & Company report referred to at paragraph 7.48 did not need to be disclosed. This was a report commissioned by Aer Lingus in 2010. The gist of the report was provided. In paragraph 7.48 of the Final Report, the CC was not itself making a finding that there were in fact 22 potential partners. What the existence of the report did indicate was that the Aer Lingus board did assess the possible options.
(2) Paragraphs 7.50 and 7.51 refer to discussions between Aer Lingus and other airlines. The majority appear to have not been proceeded with for reasons unconnected with Ryanair, and hence would have been of limited relevance. It was for the CC to assess this evidence as to its reliability and relevance. Sufficient of the gist was provided to Ryanair for it to understand the case it had to meet, and for it to make representations to the CC.
(3) Paragraph 7.51 refers to a discussion with an unnamed airline which was abandoned as a result of Ryanair's third bid. Ryanair complains that, without knowing the identity of the airline, it is impossible to verify the information. We do not consider that in the context of a merger inquiry, it was necessary to permit Ryanair to conduct an exercise of vetting or verifying the information received by the CC on every aspect or point of detail, particularly where the information relates to highly sensitive and confidential dealings not involving Ryanair itself. Ryanair did not need this type of detail in order to respond to the suggestion that Aer Lingus was interested in pursuing inorganic growth and was a credible partner for a combination.
(4) Paragraph 7.52 refers to a strategy document considered by the Aer Lingus board in 2013. Given that the report noted that the proposals outlined were unlikely to proceed for reasons unrelated to Ryanair's shareholding, we consider that no further disclosure was necessary.
(5) Paragraph 7.68 refers to Aer Lingus submitting that there could be cost synergies in a transaction with an unnamed airline. The CC was not suggesting that any particular transaction would occur or any specific level of cost savings would be achieved. Ryanair did not need to know of the identity of the airline.
(6) Appendix F, paragraph 49 refers to an unnamed shareholder who has stated that Aer Lingus might be an attractive investment due to its Heathrow slots and that Ryanair's and the Irish Government's shareholdings in Aer Lingus might be an inhibiting factor to any potential acquirer. Ryanair suggests that it would be impossible to know whether such unnamed shareholder might have their own reasons for wanting to persuade the CC to find against Ryanair. We find that Ryanair did not need to know the identity of the shareholder. It was quite open to it to challenge the propositions made. Further, the CC would have been aware of the need to evaluate the evidence and submissions it received, including as to reliability and the potential for bias.
(7) Appendix F, paragraph 7.54 refers to Aer Lingus's board minutes in 2013 which referred to specific opportunities under review. The key point drawn from this in paragraph 7.41 in Section 7 was that the board was in favour of inorganic growth. Ryanair neither needed the board minutes, nor the names of the airlines, to know or respond to the gist.
(8) Appendix F, paragraphs 57 to 77 refer to discussions regarding combinations with five unnamed airlines. The gist was provided and Ryanair did not need to be provided with the names of the airlines to respond. These discussions were relevant to the issue of whether or not Aer Lingus was a credible combination partner, a matter on which Ryanair was able to and did make submissions.
Ground 3: the CC erred in failing to appreciate the need for there to be a causal connection between the alleged material influence and the SLC
Ryanair's submissions
The Tribunal's analysis and conclusions
(1) The possibility that an acquiring company will, due to its interest in the acquired company, itself behave differently. This was an issue explicitly addressed by the CC in the Final Report in relation to Ryanair's own behaviour, at paragraphs 7.137 to 7.148.
(2) Coordinative effects, where other market players tacitly coordinate their behaviour and reduce the quality of their offering, or increase their prices, because they are feeling less competitive pressure overall. Similarly, this was an issue considered by the CC in this case, at paragraphs 7.149 to 7.159 of the Final Report.
(3) Vertical foreclosure effects, for example where an acquirer ceases, post-merger, to supply competitors of the acquired entity. Such effects, similarly, cannot be said to flow directly from the ability to exercise material influence.
Ground 4: the SLC finding
(1) affect Aer Lingus's ability to participate in a combination with another airline (see paragraphs 7.24 to 7.84);
(2) hamper Aer Lingus's ability to issue shares to raise capital (see paragraphs 7.85 to 7.92);
(3) influence Aer Lingus's ability to manage effectively its portfolio of slots at London Heathrow (see paragraphs 7.93 to 7.107);
(4) influence Aer Lingus's commercial policy and strategy by giving Ryanair the deciding vote in an ordinary resolution (see paragraphs 7.108 to 7.115); and
(5) allow Ryanair to raise Aer Lingus's management costs or impede its management from concentrating on Aer Lingus's commercial policy and strategy (see paragraphs 7.116 to 7.125).
"…the hurdle that Stagecoach has to overcome in order to make good its challenge under Ground 2 is a high one. Where Stagecoach asserts that there is no or no sufficient evidence to support one of the Commission's key findings, Stagecoach must show either that there is simply no evidence at all to support the Commission's conclusions or that on the basis of the evidence the Commission could not reasonably have come to the conclusions that it did. The fact that the evidence might have supported alternative conclusions, whether or not more favourable to Stagecoach, is not determinative of unreasonableness in respect of the conclusion actually reached by the Commission. We must be wary of a challenge which is "in reality an attempt to pursue a challenge to the merits of the Decision under the guise of a judicial review"..."
(a) Impediment to combinations
(b) Aer Lingus's ability to raise equity
(c) Heathrow slots
(d) Ordinary resolutions
(e) Ryanair making bids for Aer Lingus
Ground 5: the divestiture remedy
(1) The CC erred in identifying the legitimate aim.
(2) The remedies proposed by Ryanair would be sufficient to remedy the SLC found by the CC, such that the divestiture order is more than is necessary to meet the legitimate aim.
(3) The adverse effects of the divestiture order on Ryanair are disproportionate to the aim pursued.
(4) It is disproportionate to impose the divestiture order without first waiting for the outcome of the EU process.
(5) The appointment of a divestiture trustee is disproportionate.
Legal framework
"1.6 Where the CC concludes that a relevant merger situation has resulted, or may be expected to result, in a substantial lessening of competition (SLC), it is required to decide whether action should be taken to remedy, mitigate or prevent the SLC or any adverse effect resulting from the SLC. The CC is also required to decide whether such action should be taken by itself or recommended for others, such as Government, regulators or public authorities. In either case, the CC must state in its report the action to be taken and what it is designed to address.
1.7 The Act requires that the CC, when considering these remedial actions, shall 'in particular, have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to the substantial lessening of competition and any adverse effects resulting from it'. To fulfil this requirement, the CC will seek remedies that are effective in addressing the SLC and its resulting adverse effects and will then select the least costly and intrusive remedy that it considers to be effective. The CC will seek to ensure, as outlined in paragraph 1.12, that no remedy is disproportionate in relation to the SLC and its adverse effects. The CC may also have regard, in accordance with the Act, to any relevant customer benefits arising from the merger. In the following paragraphs we consider these factors and their interaction in greater detail."
"(d) Acceptable risk profile. The effect of any remedy is always likely to be uncertain to some degree. In evaluating the effectiveness of remedies, the CC will seek remedies that have a high degree of certainty of achieving their intended effect. Customers or suppliers of merger parties should not bear significant risks that remedies will not have the requisite impact on the SLC or its adverse effects."
"1.9 Having considered the effectiveness of remedy options, the CC will then consider the costs of those remedies that it expects would be effective in addressing the SLC and resulting adverse effects. In order to be reasonable and proportionate the CC will seek to select the least costly remedy, or package of remedies, that it considers will be effective. If the CC is choosing between two remedies which it considers will be equally effective, it will select the remedy that imposes the least cost or that is least restrictive. The CC will seek to ensure, as outlined in paragraph 1.12, that no remedy is disproportionate in relation to the SLC and its adverse effects.
1.10 The costs of a remedy may be incurred by a variety of parties including the merger parties, third parties, the OFT and other monitoring agencies. As the merger parties have the choice of whether or not to proceed with the merger, the CC will generally attribute less significance to the costs of a remedy that will be incurred by the merger parties than costs that will be imposed by a remedy on third parties, the OFT and other monitoring agencies. In particular, for completed mergers, the CC will not normally take account of costs or losses that will be incurred by the merger parties as a result of a divestiture remedy as it is open to the parties to make merger proposals conditional on competition authorities' approval. It is for the parties concerned to assess whether there is a risk that a completed merger would be subject to an SLC finding and the CC would expect this risk to be reflected in the agreed acquisition price. Since the cost of divestiture is, in essence, avoidable, the CC will not, in the absence of exceptional circumstances, accept that the cost of divestiture should be considered in selecting remedies.
1.11 The costs of a remedy may arise in various forms. Remedies may result in costs through distortions in market outcomes. This is more likely to be the case where behavioural remedies are used which intervene directly in market outcomes, especially over a long period. Remedies may also result in significant ongoing compliance costs. The CC will endeavour to minimize such costs, subject to the effectiveness of the remedy not being reduced, and will have regard to the costs of the OFT and other monitoring agencies in ensuring compliance. If remedies extinguish relevant customer benefits then, as we discuss in 1.15, the amount of benefits foregone may be considered to be a relevant cost of the remedy.
1.12 In exceptional circumstances, even the least costly but effective remedy might be expected to incur costs that are disproportionate to the scale of the SLC and its adverse effects (for instance if the costs incurred by the remedy on third parties were likely to be greater than the likely scale of adverse effects). In these exceptional circumstances, the CC would not pursue the remedy in question.
1.13 In unusual situations it is possible that all feasible remedies will only be partially effective in remedying an SLC. In such cases the CC will select the most effective remedy or package of remedies that is available provided that the costs of this remedy are not disproportionate (as described above) in relation to the SLC."
Divestiture remedies are dealt with in some detail in Part 3 of the CC8 Guidance.
"284. It is not in dispute that the Commission and the Secretary of State have a margin of assessment with regard to appropriate action for remedying the SLC created by a merger (see, to that effect, Somerfield (above) at paragraph [88]).
285. In deciding what remedy to recommend to the Secretary of State the Commission is required by subsection 47(9) of the Act in particular to have regard to the need to achieve as comprehensive a solution as is reasonable and practicable to the SLC and consequent adverse effects on the public interest.
286. The CC Guidelines state that the Commission's starting point will normally be to choose the remedial action that will restore the competition that has been, or is expected to be, substantially lessened as a result of an RMS (paragraph 4.23). The CC Guidelines further state that remedies that aim to restore all or part of the market structure prior to a merger are likely to be a direct way of addressing the adverse effects (ibid).
287 In Somerfield, in the context of the selection of a remedy for SLC under subsections 35(3) and 35(4) of the Act (which are expressed in very similar terms to subsections 47(7), (8) and (9)), the Tribunal said:
"… in our view, it is not unreasonable for the CC to consider, as a starting point, that "restoring the status quo ante" would normally involve reversing the completed acquisition unless the contrary were shown. After all, it is the acquisition that has given rise to the SLC, so to reverse the acquisition would seem to us to be a simple, direct and easily understandable approach to remedying the SLC in question." (paragraphs [98]-[99])."
"293. These arguments fall to be considered in the light of the Commission's statutory obligation to have regard to the need to achieve "as comprehensive a solution as is reasonable and practicable" to remedy the SLC and its adverse effects on the public interest. The Tribunal considers that in the light of this obligation the Commission was clearly entitled to consider whether and if so at what level a partial divestiture would ensure that there would be no realistic prospect of Sky being able to exercise material influence over ITV's strategy. We agree with the Commission that this is not simply a matter of calculation, but includes a significant element of judgment on the part of the Commission.
…
302. Whether a remedy, structural or behavioural, will provide as comprehensive a solution as is reasonable and practicable to address the SLC together with any adverse effects resulting from it, must be examined by the Commission on a case-by-case basis in the light of the available evidence and using the experience and knowledge of the members. The fact that behavioural remedies typically require ongoing monitoring and enforcement, and the associated risks, are relevant considerations for the Commission. Despite the general concerns about such remedies outlined in the CC Guidelines, the Commission did not dismiss the voting trust or undertaking not to vote out of hand but rather assessed them in the light of the facts of this case."
"306. The main thrust of Sky's challenge to the Commission's reasoning on this issue concerned the view (expressed at paragraph 6.69 of the Report) that the costs which Sky would incur if required to dispose part of its shareholding in ITV were irrelevant. At the hearing Sky referred to Interbrew (above) in which Moses J. said:
"… in the instant case, I do not think that a question of balance arose. There will be cases where it is necessary to consider whether a remedy is disproportionate in the sense that the advantages to be gained are outweighed by the detriment to the one against whom the measure is directed. But in this case no such issue required consideration. This was not a case where the Commission took the view that the divestment of Whitbread with Stella Artois would be an effective remedy but that the divestment of Bass Brewers would be more effective. Rather, the majority of the Commission took the view that the divestment of Whitbread with Stella Artois would not be an effective remedy for the reasons it gave at 2.214. In those circumstances it availed Intrebrew nothing to contend that the remedy was disproportionate. No question of weighing the advantage of divestment of Whitbread with Stella Artois against the detriment to Interbrew of the divestment of Bass arose."
307. This authority provides no support for Sky's argument which in our view is misconceived. The Commission expressed its conclusions on proportionality at paragraphs 6.67 to 6.71 of the Report. It stated that when choosing between remedies which the Commission considers would be equally effective it would choose the remedy that imposed the least cost or that is least restrictive. In the present case the Commission took the view that the full or partial divestiture of Sky's shareholding in ITV would be an effective remedy. As between those remedies the Commission concluded that partial divestiture was the more proportionate because it was less intrusive in that it required Sky to divest a smaller proportion of its shareholding.
308. Having already concluded that neither of Sky's proposed remedies would be an effective remedy there was no need for the Commission to examine the proportionality of those remedies vis-à-vis the divestiture remedies or at all. In those circumstances it does not assist Sky to contend that the partial divestiture remedy was disproportionate when compared with its own proposals. As in Interbrew, no question arises of weighing the merits of either of the behavioural remedies against the cost to Sky of the partial divestiture or its shareholding in ITV. In any event, the Commission noted that Sky's proposals would themselves be likely to be far from cost-free in view of the monitoring and enforcement requirements and other implications set out in the Report."
"136. A useful summary of the proportionality principles is contained in the following passage from the judgment of the ECJ in Case C-331-88 R. v. Ministry of Agriculture, Fisheries and Food and Secretary of State for Health, ex parte Fedesa [1990] ECR I-4023, paragraph [13], to which we were referred by the Commission:
"By virtue of that principle, the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued."
137. That passage identifies the main aspects of the principles. These are that the measure: (1) must be effective to achieve the legitimate aim in question (appropriate), (2) must be no more onerous than is required to achieve that aim (necessary), (3) must be the least onerous, if there is a choice of equally effective measures, and (4) in any event must not produce adverse effects which are disproportionate to the aim pursued."
Approach of the CC
(1) an undertaking (or order) preventing it from voting against an acquisition of Aer Lingus by another EU airline, including by means of a scheme of arrangement or a transaction under the Cross Border Mergers Directive;
(2) an undertaking (or order) preventing it from voting against an acquisition by Aer Lingus, including by public offer or a scheme of arrangement, involving another EU airline (if put to a vote), as proposed by the Aer Lingus board;
(3) an undertaking (or order) preventing it from voting against a disapplication of pre-emption rights outside the EU;
(4) an undertaking (or order) preventing it from voting against Aer Lingus's board on the disposal of Aer Lingus's slots at London Heathrow.
(1) an undertaking (or order) to accept an offer for its shares if another EU airline achieved acceptances representing more than 50% of Aer Lingus's shares;
(2) an undertaking (or order) to support a scheme of arrangement involving another EU airline if shares representing more than 50% of Aer Lingus's issued share capital were voted in favour at the shareholders' meeting;
(3) an undertaking (or order) to extend the remedies set out above to non-EU airlines, should it at any point in the future become legally permitted for a non-EU airline to hold more than 50% of Aer Lingus's shares;
(4) an undertaking (or order) not to oppose the disapplication of pre-emption rights in the context of a combination between Aer Lingus and another airline.
"We concluded that a reduction of Ryanair's share to 5 per cent would be effective in remedying the SLC that we have found. Such a divestiture would need to be accompanied by limited behavioural remedies to ensure that Ryanair could not seek or accept board representation or acquire any further shares in Aer Lingus following divestiture. The restriction on the acquisition of shares could be lifted if Ryanair, following a successful appeal, obtains clearance from the European Commission permitting a full takeover of Aer Lingus."
"8.118 The CC will not, in the absence of exceptional circumstances, take account of costs or losses that will be incurred by the merger parties as a result of a divestiture remedy. We consider that Ryanair will be able to realize a market value for its shares by undertaking the sale process within the divestiture period. We therefore do not consider the cost of divestment, including any loss that Ryanair may incur in selling the shares, to be a relevant consideration in our assessment of the proportionality of different options. Nor do we see any evidence that there would be any relevant customer benefits arising from Ryanair's minority shareholding which would be forgone as a consequence of either of the effective remedies. We therefore did not consider that there were material differences, in terms of relevant costs, between the two remedies that we have provisionally found to be effective.
8.119 A partial divestiture would, however, be less intrusive than a full divestiture because Ryanair would be permitted to retain a proportion of its existing shareholding, should it so wish. Of the two effective remedies that we have identified, partial divestment is therefore the less intrusive and hence more proportionate remedy.
8.120 We considered whether the level of intervention implied by a divestiture of shares of this magnitude was justified, given the nature and extent of the SLC that we have found. We took the view that it would be for the following reasons:
(a) The routes between Great Britain and Ireland represent a substantial and important market, accounting for 4.7 million UK outbound passenger journeys in 2012 and €[ ?] million in revenue in 2011 (see Appendix D). These routes are particularly important to the Aer Lingus business, accounting for approximately [20–30] per cent of its turnover.
(b) Ryanair and Aer Lingus are by some margin the main operators on these routes, and the only operators on certain corridors. Given this, and the number of passengers travelling between Great Britain and Ireland, any reduction in competition between Ryanair and Aer Lingus on these routes is therefore likely to result in significant customer detriment.
(c) The restriction imposed by the shareholding on Aer Lingus's ability to pursue its own commercial policy and strategy is significant and affects fundamental aspects of commercial policy and strategy including Aer Lingus's ability to enter into combinations, fund its business and manage its key assets.
(d) Divestiture is the usual approach to remedying SLC findings arising from anti-competitive mergers and we have found it to be the only effective class of remedy in this case.
(e) There is no evidence that relevant customer benefits would be lost by a divestiture. We do not judge any losses that Ryanair might crystallize from selling its shares to be a relevant consideration.
8.121 We therefore came to the conclusion that an effective and proportionate remedy to the SLC would be a partial divestiture to reduce Ryanair's shareholding in Aer Lingus to 5 per cent of Aer Lingus's issued ordinary shares, accompanied by obligations on Ryanair not to seek or accept board representation or acquire further shares in Aer Lingus (unless clearance is given under the EUMR for a concentration between Ryanair and Aer Lingus)."
Ryanair's challenge
Identification of the legitimate aim
"…The fact that under Ryanair's proposal, Aer Lingus and potential partners would still be inhibited in the forms of combination that they were able to pursue is, in our view, a substantial shortcoming of this approach."
Ryanair's remedies
(1) The undertakings offered by Ryanair did not cover all possible combinations (paragraphs 8.31 to 8.37 of the Final Report).
(2) The presence of Ryanair as a shareholder could deter potential partners (paragraphs 8.38 to 8.40).
(3) There may be a perceived execution risk (paragraphs 8.41 to 8.42).
(4) The Irish Government's perception of the extent to which the undertaking or order represents an irrevocable commitment to sell its shares (paragraph 8.43).
"8.46 In a dynamic and uncertain sector such as the airline industry, it is inherently difficult to predict the specific forms of combinations or other matters of strategic importance that might come before the Aer Lingus shareholders in AGMs or EGMs in the future. In Section 7 we found that Ryanair's shareholding constrained Aer Lingus's ability to implement its own commercial policy and strategy in a variety of ways. This makes it inherently difficult to design behavioural remedies that would cater for all eventualities. Looking specifically at the issue of combinations, whilst Ryanair's proposed remedies seek to address some of our concerns regarding certain forms of combinations by way of a scheme of arrangement or general offer, they do not address other forms of combination available to Aer Lingus and potential partners and would, in effect, restrict Aer Lingus's and its potential partner's choice of combination."
"8.38 We next considered whether the continued substantial presence by Ryanair on Aer Lingus's shareholder register could be expected to deter potential partners from entering into, pursuing, or concluding discussions with Aer Lingus even where Ryanair's proposed remedies were in place.
8.39 We considered that some potential partners may be deterred from entering into, pursuing, or concluding discussions with Aer Lingus, for fear of having to deal with a substantial Ryanair presence on their own share register post-combination (see paragraph 7.34(b)).
8.40 We also formed the view that some potential partners may be deterred from combining with Aer Lingus (short of an acquisition of 100 per cent of Aer Lingus) by the possibility that Ryanair could use its existing shareholding as a platform from which to launch further bids for the whole of Aer Lingus (see paragraph 7.34(c)). We note that […] decided not to continue its discussions with Aer Lingus upon hearing that Ryanair was launching its third bid (see paragraph 7.51)"
"8.41 Finally, we noted that Ryanair's proposals would require Aer Lingus and potential partners to develop any potential combinations to an advanced stage and secure a high level of shareholder agreement, before Ryanair was required to vote in favour of the combination and/or sell its shares.
8.42 We considered that this aspect of remedy design would increase the perceived risk associated with such combinations and that some potential partners may be deterred from entering into, pursuing, or concluding discussions with Aer Lingus by residual uncertainty as to whether, in practice, Ryanair would ultimately support the combination or dispose of its shares. For example, potential partners may perceive a risk that Ryanair could apply to have any CC undertakings or order reviewed on the grounds of a change of circumstances (see section 92 of the Act). The relatively unusual and untested nature of the proposed arrangements may also increase the perception of execution risk – for example, in relation to its proposals in paragraph 8.24(b), it is unclear how Ryanair would know that more than 50 per cent of other shares would be voted in favour of a scheme before the shareholder vote had actually been held, and therefore whether or not to cast its votes in favour of the scheme."
"8.43 The Irish Government's perception of the extent to which the undertaking or Order represents an irrevocable commitment by Ryanair to sell its shares is also relevant to the effectiveness of these measures. Given that the free float in Aer Lingus is less than 45 per cent, any requirement for 50 per cent of shareholders to support a transaction would require the Irish Government to commit to sell at least part of its shareholding in advance and to rely on Ryanair's commitment to vote in favour and/or sell its shares where appropriate. If the Irish Government perceived an inherent risk in this position and decided not to sell all or part of its shares, a potential partner, whether from inside or outside the EU, would not be able to make use of these remedies to conclude a combination with Aer Lingus."
"8.44 Ryanair told us that any potential partner could rely on its commitment not to oppose a scheme of arrangement and to accept an offer for its shares where more than 50 per cent acceptance was achieved. However, in our view it would not be unreasonable for potential partners to perceive some risk associated with relying on any undertaking or Order, given the residual uncertainty attaching to these proposed measures and their application to unknown future events. As Aer Lingus's consideration of potential combinations over recent years makes clear, discussions and negotiations about potential combinations involve managing a number of inherent risks – e.g. legal, financial, strategic, execution – where an adverse outcome will involve significant financial and reputational costs to both parties. Therefore, we conclude that any perception of uncertainty regarding Ryanair's future conduct undermines the efficacy of Ryanair's proposed remedies and could deter future combinations involving Aer Lingus".
Proportionality to the aim pursued
"30. I respectfully endorse the Tribunal's reasoning in that paragraph of its judgment. BAA's contention that the Tribunal erred in its approach to the assessment of proportionality ignores the fact that proportionality is not to be assessed in a vacuum. Whether a remedy under section 138 of the Act is proportionate must be considered in the context of the statutory scheme as a whole. In accordance with the statutory scheme in the Act, it has been decided that there is an AEC, that action should be taken to remedy it, and that the only effective remedy is a requirement that BAA sells Stansted. That requirement is in the public interest. It is inherent in such a statutory scheme that in order to secure the public interest, BAA will lose its freedom of choice as to whether and when to sell its asset. In that context, providing the timing of the compulsory sale is "calibrated", so as to ensure that BAA does have a proper opportunity to market its property and obtain a fair market price, the remedy will be proportionate. BAA's submission boils down to the proposition that in addition to the period which will give it a proper opportunity to obtain the market value for its asset, it would be disproportionate not to give it a further period referred to by Mr Green during the course of his submissions as "market value plus", in which to market its asset. It is then submitted that the cost to BAA of the loss of this extended period ("the time cost") should be factored into the proportionality balance. But the underlying premise that BAA should be given an extended "market value plus" period in which to market its asset is simply a thinly disguised way of asserting that BAA should not be compelled to sell its asset at a time that is not of its own choosing. But that is precisely what is required in the public interest by this statutory scheme. In obtaining the market value for its property, BAA will be in the same position as the owner of any commercial premises whose property is compulsorily acquired in the public interest under a compulsory purchase order, for example for the construction of a new airport. In neither case, compulsory acquisition or compulsory sale at market value, can it be said that the measure which is required to be taken in the public interest is disproportionate."
Proportionality pending EU ruling
Divestiture trustee
"3.26 If the merger parties cannot procure divestiture to a suitable purchaser within the initial divestiture period, then, unless this period is extended by the CC, an independent divestiture trustee may be mandated to dispose of the package within a specific period (the trustee's divestiture period) at the best available price in the circumstances, subject to prior approval by the CC of the purchaser and the divestiture arrangements. If the CC has reason to expect that the merger parties will not procure divestiture to a suitable purchaser within the initial divestiture period, the CC may require that a divestiture trustee is appointed before the end of the initial divestiture period, or in unusual cases, at the outset of the divestiture process. The role of a divestiture trustee is distinct from that of a monitoring trustee, but the two roles may be performed by the same person".
"38. The appointment of a Divestiture Trustee is generally used by the CC as a fall-back option if a party has not completed the divestiture at the end of the divestiture period, or in other relevant circumstances where the CC has reason to be concerned that an effective divestiture would not be completed, e.g. within the permitted time. The possibility that a Divestiture Trustee may be appointed after an initial period creates an incentive for a party to take appropriate actions to implement the remedy promptly. The CC's guidelines regarding Divestiture Trustees state that its mandate would be to dispose of the package within a specific period (the Trustee's Divestiture Period) at the best available price in the circumstances, subject to prior approval by the CC of the purchaser and the divestiture arrangements.
39. If Ryanair were to be permitted to manage a divestiture for an initial period, we were concerned that there would be a material risk that Ryanair would be incentivized to undermine the effective implementation of this remedy, for example by placing shares with unsuitable purchasers. We regarded this point as important, given the significance of competition between Ryanair and Aer Lingus. For example, Ryanair may seek to sell its shares to parties who were not independent of it, or to a purchaser or purchasers whose intention, in purchasing the shares, was to break up Aer Lingus, sell off its Heathrow slots or use them for purposes other than flights between Great Britain and Ireland, and/or take some other action the effect of which would be to reduce competition between Ryanair and Aer Lingus on routes between Great Britain and Ireland.
40. We have considered whether the CC might oversee a sale process and appoint a Monitoring Trustee to assist in reviewing the conduct of the sales process and ensuring that there were no unnecessary delays in a process managed by Ryanair. However, the sale of a minority stake in a listed company raises particular difficulties for this type of monitoring arrangement. This risk would be very difficult to manage, particularly in the context of a stock market dispersal (ie Process Option 2). In addition, it would be hard for the CC or a Monitoring Trustee to distinguish between a legitimate delay in Ryanair's process (eg to target an appropriate window for a stock market placement during the divestiture period) and an intentional delay to place the shares (eg to retain them without an intention to implement the remedy). This in turn restricts the ability of the CC to intervene before the end of the divestiture period (by appointing a Divestiture Trustee) if the latter were to be the case. Given this, the safest and most transparent way to manage this risk would be for the sale to be conducted by an independent party with no vested interest other than performing its mandate.
41. We also considered whether the appointment of a Divestiture Trustee at the outset of the process would result in material detriment to Ryanair. We note that this divestiture remedy does not involve the sale of a business, in which the vendor might be best placed to market it on the basis of its knowledge and understanding of it. A parcel of shares is being sold and the sale would most likely be conducted by a financial adviser. As the financial adviser would be mandated to achieve the best available price in the market, we did not consider that Ryanair would suffer material detriment in terms of the proceeds realized for its shares as a consequence of that adviser being mandated by the CC rather than Ryanair. Further, we would expect that the professional fees for a Divestiture Trustee would be broadly equivalent in magnitude to those that Ryanair would pay if it were to appoint its own financial adviser to run the sale process. There is therefore unlikely to be any material incremental cost to Ryanair of the CC's decision to appoint a Divestiture Trustee.
42. For these reasons we decided to require a Divestiture Trustee from the outset of the divestiture process."
Ground 6: territorial jurisdiction
The CC's approach
"We considered whether the fact that Ryanair said that all of its business activities (including in the UK) were carried on by Ryanair Limited (not Ryanair Holdings) meant that any measures should be restricted to certain companies in the Group. However, taking account of the factual circumstances of the operations of Ryanair and Ryanair Limited set out in Appendix B, we are satisfied that Ryanair Holdings and Ryanair Limited both carry on business in the UK. In the circumstances, we considered that the measures should extend to control the behaviour of all the companies in the Group."
"21. Ryanair is managed as a single business unit which is active in the provision of air passenger services and other airline-related activities, including scheduled services, car hire, Internet income and related sales to third parties. Ryanair operates a single fleet of aircraft that is deployed through a single route scheduling system. The Chief Executive Officer of Ryanair, Michael O'Leary, is the Company's Chief Operating Decision Maker and the only executive director, who makes decisions directly related to airline operations by Ryanair including those in, to and from the UK. The board of Ryanair has delegated responsibility for the management of the group to the CEO and executive management.
22. The board of Ryanair is responsible for the leadership, strategic direction and overall management of the Ryanair Group. The board's primary focus is on strategy formulation, policy and control and has a formal schedule of matters specifically reserved for its attention, including matters such as appointment of senior management, approval of the annual budget, large capital expenditure and key strategic decisions.
23. We have reviewed minutes of board meetings of Ryanair Holdings plc which indicate that the board is provided updates on, inter alia, fuel requirements, the purchasing of aircraft, new routes and bases, customer service complaints, changes in the UK Air Passenger Duty, market shares on Dublin–UK routes, outsourcing of future staff requirements, safety protocols for all Ryanair pilots and on-board electronic point-of-sale systems. In addition, we note that the board unanimously approved management to proceed with the aforementioned outsourcing and sale systems projects.
24. Ryanair's operations serving Great Britain and Ireland are operated by Ryanair Limited, its wholly owned subsidiary incorporated in Ireland and the only operating company within the Ryanair Group. The management of Ryanair Holdings and Ryanair Limited are integrated, with the two companies having the same directors, executive officers and registered address. The Chief Executive Officer of Ryanair Limited is Michael O'Leary. The UK/Ireland operations are not managed separately nor is there a separate management team from the rest of Ryanair's airline oper-ations. Ryanair Limited advertises and sells flights to UK consumers through its website (www.ryanair.com). It has eight bases of operations in the UK: Bristol, Glasgow (Prestwick), Leeds Bradford, Liverpool, London (Luton), London (Stansted), Manchester and Nottingham East Midlands.
25. Coinside Limited (Coinside), a subsidiary of Ryanair Limited, acquired Ryanair's shareholding in Aer Lingus over the period 2006 to 2008. These shares are now held by Ryanair Limited. Coinside also made the most recent public bid on behalf of Ryanair for the outstanding 70.18 per cent Aer Lingus shares not already owned by Ryanair."
Ryanair's submissions
"Consideration of that issue raises two questions in the context of section 86(1)(c): first, what activity of the parent company constitutes the carrying on of a business and, secondly, is that activity carried on in the United Kingdom? We are, of course, mindful of the fact that these questions cannot simply be answered by reference to the exercise of control over a subsidiary's business: were that approach to be adopted, it would be a clear breach of the Salomon principles. It is a question of fact and degree in each case whether the activities of the parent company are such as to be treated as carrying on business activities that are properly attributable to it as a legal person."
"…The management of the Ryanair Group bears no similarity to that discussed in [Akzo]. The key feature of that case was that the group's business was managed through business units that did not correspond to legal entities. It was because those units had no legal personality that it could be said that the companies acted as a single economic entity. In the present case, however, Ryanair is managed and acts through legal entities. Its structure is entirely conventional, with a holding company which sits above the group's activities and a subsidiary which acts as the operating company."
The Tribunal's analysis and conclusions
CONCLUSION
Hodge Malek QC |
Professor John Beath |
Margot Daly |
Charles Dhanowa OBE, QC (Hon) Registrar |
Date: 7 March 2014 |
