Ryanair says it will fight on after Court of Appeal defeat

The Court of Appeal has rejected Ryanair’s contention that the Competition Appeal Tribunal was incorrect to uphold the Competition Commission’s order that Ryanair should reduce its stake in Aer Lingus from 28.5 to 5 per cent. 

The ruling is the ninth in a series of defeats for Ryanair in what continues to be a long fought battle over its ownership of a minority interest in Aer Lingus dating back to 2006.  The European Commission blocked Ryanair’s bid to acquire control of Aer Lingus on two occasions.  Ryanair has made repeated attempts to stop an investigation under UK merger control into its holding of a minority interest.

All of Ryanair’s six grounds of appeal were dismissed by the CAT last March.  The Court of Appeal has now delivered judgment rejecting Ryanair’s arguments, including the argument that the Competition Commission had breached its duty of sincere cooperation with the European Commission.

The Court of Appeal was also unpersuaded by Ryanair’s argument that its rights of defence were breached because the Competition Commission withheld the names of third parties that were considering a merger with Aer Lingus.  The Court did not consider that this prejudiced Ryanair in its ability to argue its case.

Ryanair has said that the Competition Commission’s report was based on fanciful hypotheses and secretive evidence and has announced that it has instructed counsel to file an appeal.  After a series of judicial blows to Ryanair in the English and European Courts it may be wondered what are the prospects of success before the Supreme Court?  Ryanair has also requested a review of the original Competition Commission report and remedies imposed. Section 41(3) of the Enterprise Act requires that remedies imposed must be consistent with the Competition Commission/CMA's decisions in its final report "unless there has been a material change of circumstances since the preparation of the report or the [CMA] otherwise has a special reason for deciding differently". It will be recalled that one of the findings of the Competition Commission was that Ryanair’s interest in Aer Lingus prevented or inhibited other airlines merging with or bidding for Aer Lingus.   The factual basis for that proposition might require reconsideration in light of IAG’s recent offers for Aer Lingus.  

Ryanair Holdings Plc v The Competition And Markets Authority & Anor [2015] EWCA Civ 83, judgment 12 February 2015