# Official Journal C 47/2008

| | ISSN 1725-2423 |
| --- | --- |
| Official Journal
  of the European Union | C 47 |
| | |
| English edition | Information and Notices | Volume 5120 February 2008 |

ISSN 1725-2423

Official Journal

of the European Union

C 47

English edition

Information and Notices

Volume 5120 February 2008

---

| Notice No | Contents | page |
| --- | --- | --- |
| | II   Information |
| | INFORMATION FROM EUROPEAN UNION INSTITUTIONS AND BODIES |
| | Commission |
| 2008/C 047/01 | Status of EC accession to UNECE Regulations in the area of vehicle approval as of 31 December 2007 | 1 |

Notice No

Contents

page

II   Information

INFORMATION FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Commission

2008/C 047/01

Status of EC accession to UNECE Regulations in the area of vehicle approval as of 31 December 2007

1

| | IV   Notices |
| --- | --- |
| | NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES |
| | Commission |
| 2008/C 047/02 | Euro exchange rates | 5 |
| 2008/C 047/03 | Opinion of the Advisory Committee on concentrations given at its 151st meeting on 11 June 2007 concerning a draft decision relating to Case COMP/M.4439 — Ryanair/Aer Lingus — Rapporteur: Poland | 6 |
| 2008/C 047/04 | Final report of the Hearing Officer in Case COMP/M.4439 — Ryanair/Aer Lingus (Pursuant to Article 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21) | 7 |
| 2008/C 047/05 | Summary of Commission Decision of 27 June 2007 declaring a concentration to be incompatible with the common market and the EEA Agreement (Case COMP/M.4439 — Ryanair/Aer Lingus) (
  1
  ) | 9 |
| | NOTICES FROM MEMBER STATES |
| 2008/C 047/06 | Commission communication in the framework of the implementation of the Directive 2004/22/EC of the European Parliament and of the Council on measuring instruments (
  1
  ) | 21 |

IV   Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Commission

2008/C 047/02

Euro exchange rates

5

2008/C 047/03

Opinion of the Advisory Committee on concentrations given at its 151st meeting on 11 June 2007 concerning a draft decision relating to Case COMP/M.4439 — Ryanair/Aer Lingus — Rapporteur: Poland

6

2008/C 047/04

Final report of the Hearing Officer in Case COMP/M.4439 — Ryanair/Aer Lingus (Pursuant to Article 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21)

(Pursuant to Article 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21)

7

2008/C 047/05

Summary of Commission Decision of 27 June 2007 declaring a concentration to be incompatible with the common market and the EEA Agreement (Case COMP/M.4439 — Ryanair/Aer Lingus) (
  1
  )

1

9

NOTICES FROM MEMBER STATES

2008/C 047/06

Commission communication in the framework of the implementation of the Directive 2004/22/EC of the European Parliament and of the Council on measuring instruments (
  1
  )

1

21

| | V   Announcements |
| --- | --- |
| | PROCEDURES RELATING TO THE IMPLEMENTATION OF THE COMPETITION POLICY |
| | Commission |
| 2008/C 047/07 | United Kingdom Government notice concerning European Parliament and Council Directive 94/22/EC on the conditions for granting and using authorisations for the prospection, exploration and production of hydrocarbons (
  1
  ) | 22 |

V   Announcements

PROCEDURES RELATING TO THE IMPLEMENTATION OF THE COMPETITION POLICY

Commission

2008/C 047/07

United Kingdom Government notice concerning European Parliament and Council Directive 94/22/EC on the conditions for granting and using authorisations for the prospection, exploration and production of hydrocarbons (
  1
  )

1

22

| | Corrigenda |
| --- | --- |
| 2008/C 047/08 | Corrigendum to Commission communication in the framework of the implementation of the Directive 2004/22/EC of the European Parliament and of the Council on measuring instruments (OJ C 29, 1.2.2008) | 25 |

Corrigenda

2008/C 047/08

Corrigendum to Commission communication in the framework of the implementation of the Directive 2004/22/EC of the European Parliament and of the Council on measuring instruments (OJ C 29, 1.2.2008)

(OJ C 29, 1.2.2008)

25

| | |
| --- | --- |
| | (1)   Text with EEA relevance |

---

(1)   Text with EEA relevance

1

| EN | |
| --- | --- |

EN

---

II Information

INFORMATION FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Commission

| 20.2.2008 | EN | Official Journal of the European Union | C 47/1 |
| --- | --- | --- | --- |

20.2.2008

EN

Official Journal of the European Union

C 47/1

---

Status of EC accession to UNECE Regulations in the area of vehicle approval as of 31 December 2007

(2008/C 47/01)

The Commission publishes hereafter a table summarising the state of UNECE Regulations as last amended (annexed to the 1958 Agreement concerning the adoption of uniform technical prescriptions for wheeled vehicles, equipment and parts which can be fitted and/or be used on wheeled vehicles and the conditions for reciprocal recognition of approvals granted on the basis of these prescriptions) to which the EC has acceded as of 31 December 2007, even if some of the amendments will enter into force after this date.

| Regulation number | Amendments when acceded | Series of amendments (1)
   (2) | Supplements to the series (1)
   (2) | Short title of Regulation |
| --- | --- | --- | --- | --- |
| 1 | 01 | 02 | — | Asymmetric headlamps (R2 and/or HS1) |
| 3 | 02 | 02 | 10 | Retro-reflecting devices |
| 4 | 00 | 00 | 13 | Rear registration-plate lamp |
| 5 | 02 | 02 | 6 | Asymmetric headlamps (Sealed Beam) |
| 6 | 01 | 01 | 16 | Direction indicators |
| 7 | 02 | 02 | 13 | End-outline marker-, front/rear position-, side-, stop-lamps (M, N and O) |
| 8 | 04 | 05 | — | Headlamps (H1, H2, H3, HB3, HB4, H7, H8, H9, HIR1, HIR2 and/or H11) |
| 10 | 02 | 03 | — | Electro-magnetic compatibility |
| 11 | 02 | 03 | — | Door latches and hinges |
| 12 | 03 | 03 | 3 | Behaviour of steering device under impact |
| 13 | 09 | 11 | — | Braking (categories M, N and O) |
| 13H | 00 | 00 | 5 | Braking (passenger cars) |
| 14 | 04 | 06 | 3 | Seat-belt anchorages |
| 16 | 04 | 05 | — | Seat belts |
| 17 | 06 | 07 | 3 | Seat strength |
| 18 | 02 | 03 | 1 | Anti-theft |
| 19 | 02 | 03 | — | Front fog lamps |
| 20 | 02 | 03 | — | Asymmetric headlamps (H4) |
| 21 | 01 | 01 | 3 | Interior fittings |
| 22 | 04 | 05 | 1 | Protective helmets and visors for motorcyclists |
| 23 | 00 | 00 | 14 | Reversing lamps |
| 24 | 03 | 03 | 3 | Diesel smoke and power |
| 25 | 04 | 04 | — | Head restraints |
| 26 | 02 | 03 | 1 | External projections |
| 27 | 03 | 03 | 1 | Advance warning triangles |
| 28 | 00 | 00 | 3 | Audible warning devices |
| 30 | 02 | 02 | 15 | Tyres (motor vehicles and their trailers) |
| 31 | 02 | 02 | 6 | Asymmetric headlamps (halogen sealed beam) |
| 34 | 01 | 02 | 2 | Fire risks |
| 37 | 03 | 03 | 30 | Filament lamps |
| 38 | 00 | 00 | 13 | Rear fog lamps |
| 39 | 00 | 00 | 5 | Speedometer |
| 43 | 00 | 00 | 10 | Safety glazing |
| 44 | 03 | 04 | 4 | Child restraint system |
| 45 | 01 | 01 | 5 | Headlamp cleaners |
| 46 | 01 | 02 | 2 | Rear-view mirrors |
| 48 | 01 | 04 | — | Installation of lighting and light-signalling devices (M, N and O) |
| 49 | 02 | 05 | — | Emissions (diesel, NG and LPG) |
| 50 | 00 | 00 | 11 | Front/rear position-, stop-lamps, direction indicators, rear registration-plate lamps (L) |
| 51 | 02 | 02 | 6 | Sound levels (M and N) |
| 53 | 00 | 01 | 8 | Installation of lighting and light-signalling devices (L3) |
| 54 | 00 | 00 | 16 | Tyres (commercial vehicles and their trailers) |
| 55 | 00 | 00 | | Mechanical coupling devices |
| 56 | 00 | 01 | — | Headlamps (mopeds) |
| 57 | 01 | 02 | — | Headlamps (motorcycles) |
| 58 | 01 | 02 | — | Rear underrun protective device |
| 59 | 00 | 00 | 3 | Replacement silencing systems |
| 60 | 00 | 00 | 3 | Driver operated controls — identification of controls, tell-tales and indicators (moped/motorcycles) |
| 62 | 00 | 00 | 2 | Anti-theft (moped/motorcycles) |
| 64 | 00 | 01 | — | Tyres (temporary use spare wheels/tyres) |
| 66 | 00 | 01 | — | Strength of superstructure (buses) |
| 67 | 01 | 01 | 8 | LPG equipment |
| 69 | 01 | 01 | 3 | Rear marking plates for slow moving vehicles |
| 70 | 01 | 01 | 5 | Rear marking plates for heavy and long vehicles |
| 71 | 00 | 00 | — | Field of vision, agricultural tractors |
| 72 | 00 | 01 | — | Headlamps (HS1) (motorcycles) |
| 73 | 00 | 00 | 1 | Lateral protection (goods vehicles and their trailers) |
| 74 | 00 | 01 | 4 | Installation of lighting and light-signalling devices (L1) |
| 75 | 00 | 00 | 12 | Tyres (motorcycles/mopeds) |
| 77 | 00 | 00 | 11 | Parking lamps |
| 78 | 02 | 03 | — | Braking (category L) |
| 79 | 01 | 01 | 3 | Steering equipment |
| 80 | 01 | 01 | 3 | Strength of seats and their anchorages (large passenger vehicles) |
| 81 | 00 | 00 | 2 | Rear-view mirrors (motorcycles/mopeds) |
| 82 | 00 | 01 | — | Headlamps (HS2 moped) |
| 83 | 03 | 05 | 6 | Emissions |
| 85 | 00 | 00 | 4 | Power — internal combustion and electric (M and N) |
| 86 | 00 | 00 | 3 | Installation of lighting and light-signalling devices (agricultural tractors) |
| 87 | 00 | 00 | 12 | Daytime running lamps |
| 89 | 00 | 00 | 1 | Speed limitation devices |
| 90 | 01 | 01 | 9 | Replacement brake linings and their assemblies |
| 91 | 00 | 00 | 10 | Side marker lamps |
| 93 | 00 | 00 | — | Front underrun protective devices |
| 94 | 01 | 01 | 3 | Protection of the occupants in the event of a frontal collision |
| 95 | 02 | 02 | 1 | Protection of the occupants in the event of a lateral collision |
| 96 | 00 | 01 | 2 | Diesel emission (agricultural tractors) |
| 97 | 00 | 01 | 5 | Alarm systems |
| 98 | 00 | 00 | 9 | Headlamps with gas-discharge light sources |
| 99 | 00 | 00 | 3 | Gas-discharge light sources |
| 100 | 00 | 00 | 1 | Electric vehicle safety |
| 101 | 00 | 00 | 7 | CO2 emission/fuel consumption (M1) and electric energy consumption and range (M1 and N1) |
| 102 | 00 | 00 | — | Close coupling devices |
| 103 | 00 | 00 | 2 | Replacement catalytic converters |
| 104 | 00 | 00 | 5 | Retro-reflective markings (heavy and long vehicles) |
| 105 | 02 | 04 | — | Carriage of dangerous goods — construction of vehicles |
| 106 | 00 | 00 | 4 | Tyres (agricultural vehicles) |
| 107 | 01 | 02 | 1 | Buses and coaches |
| 108 | 00 | 02 | — | Retreaded Tyres (motor vehicles and their trailers) |
| 109 | 00 | 00 | 4 | Retreaded tyres (commercial vehicles and their trailers) |
| 110 | 00 | 00 | 7 | Compressed natural gas systems |
| 111 | 00 | 00 | 1 | Roll-over stability of tank vehicles (N and O) |
| 112 | 00 | 00 | 8 | Asymmetrical headlamps (filament lamps) |
| 113 | 00 | 00 | 6 | Symmetrical headlamps (filament lamps) |
| 114 | 00 | 00 | — | Replacement airbags |
| 115 | 00 | 00 | 3 | LPG-CNG retrofit systems |
| 116 | 00 | 00 | 1 | Unauthorised use (anti-theft and alarm systems) |
| 117 | 00 | 01 | — | Tyres rolling noise |
| 118 | 00 | 00 | — | Fire resistance of interior materials |
| 119 | 00 | 00 | 2 | Cornering lamps |
| 120 | 00 | 00 | — | Power — internal combustion (agricultural tractors and mobile machinery) |
| 121 | 00 | 00 | 1 | Hand controls, tell-tales and indicators |
| 122 | 00 | 00 | — | Heating systems |
| 123 | 00 | 00 | 1 | Adaptive Front-lighting Systems |
| 124 | 00 | 00 | — | (Replacement) Wheels for passenger vehicles |
| 125 | 00 | 00 | 1 | Driver's forward field of vision |
| 126 | 00 | 00 | — | Partitioning systems to protect passengers against displaced luggage |

Regulation number

Amendments when acceded

Series of amendments (1)
   (2)

Supplements to the series (1)
   (2)

Short title of Regulation

1

01

02

—

Asymmetric headlamps (R2 and/or HS1)

3

02

02

10

Retro-reflecting devices

4

00

00

13

Rear registration-plate lamp

5

02

02

6

Asymmetric headlamps (Sealed Beam)

6

01

01

16

Direction indicators

7

02

02

13

End-outline marker-, front/rear position-, side-, stop-lamps (M, N and O)

8

04

05

—

Headlamps (H1, H2, H3, HB3, HB4, H7, H8, H9, HIR1, HIR2 and/or H11)

10

02

03

—

Electro-magnetic compatibility

11

02

03

—

Door latches and hinges

12

03

03

3

Behaviour of steering device under impact

13

09

11

—

Braking (categories M, N and O)

13H

00

00

5

Braking (passenger cars)

14

04

06

3

Seat-belt anchorages

16

04

05

—

Seat belts

17

06

07

3

Seat strength

18

02

03

1

Anti-theft

19

02

03

—

Front fog lamps

20

02

03

—

Asymmetric headlamps (H4)

21

01

01

3

Interior fittings

22

04

05

1

Protective helmets and visors for motorcyclists

23

00

00

14

Reversing lamps

24

03

03

3

Diesel smoke and power

25

04

04

—

Head restraints

26

02

03

1

External projections

27

03

03

1

Advance warning triangles

28

00

00

3

Audible warning devices

30

02

02

15

Tyres (motor vehicles and their trailers)

31

02

02

6

Asymmetric headlamps (halogen sealed beam)

34

01

02

2

Fire risks

37

03

03

30

Filament lamps

38

00

00

13

Rear fog lamps

39

00

00

5

Speedometer

43

00

00

10

Safety glazing

44

03

04

4

Child restraint system

45

01

01

5

Headlamp cleaners

46

01

02

2

Rear-view mirrors

48

01

04

—

Installation of lighting and light-signalling devices (M, N and O)

49

02

05

—

Emissions (diesel, NG and LPG)

50

00

00

11

Front/rear position-, stop-lamps, direction indicators, rear registration-plate lamps (L)

51

02

02

6

Sound levels (M and N)

53

00

01

8

Installation of lighting and light-signalling devices (L3)

54

00

00

16

Tyres (commercial vehicles and their trailers)

55

00

00

Mechanical coupling devices

56

00

01

—

Headlamps (mopeds)

57

01

02

—

Headlamps (motorcycles)

58

01

02

—

Rear underrun protective device

59

00

00

3

Replacement silencing systems

60

00

00

3

Driver operated controls — identification of controls, tell-tales and indicators (moped/motorcycles)

62

00

00

2

Anti-theft (moped/motorcycles)

64

00

01

—

Tyres (temporary use spare wheels/tyres)

66

00

01

—

Strength of superstructure (buses)

67

01

01

8

LPG equipment

69

01

01

3

Rear marking plates for slow moving vehicles

70

01

01

5

Rear marking plates for heavy and long vehicles

71

00

00

—

Field of vision, agricultural tractors

72

00

01

—

Headlamps (HS1) (motorcycles)

73

00

00

1

Lateral protection (goods vehicles and their trailers)

74

00

01

4

Installation of lighting and light-signalling devices (L1)

75

00

00

12

Tyres (motorcycles/mopeds)

77

00

00

11

Parking lamps

78

02

03

—

Braking (category L)

79

01

01

3

Steering equipment

80

01

01

3

Strength of seats and their anchorages (large passenger vehicles)

81

00

00

2

Rear-view mirrors (motorcycles/mopeds)

82

00

01

—

Headlamps (HS2 moped)

83

03

05

6

Emissions

85

00

00

4

Power — internal combustion and electric (M and N)

86

00

00

3

Installation of lighting and light-signalling devices (agricultural tractors)

87

00

00

12

Daytime running lamps

89

00

00

1

Speed limitation devices

90

01

01

9

Replacement brake linings and their assemblies

91

00

00

10

Side marker lamps

93

00

00

—

Front underrun protective devices

94

01

01

3

Protection of the occupants in the event of a frontal collision

95

02

02

1

Protection of the occupants in the event of a lateral collision

96

00

01

2

Diesel emission (agricultural tractors)

97

00

01

5

Alarm systems

98

00

00

9

Headlamps with gas-discharge light sources

99

00

00

3

Gas-discharge light sources

100

00

00

1

Electric vehicle safety

101

00

00

7

CO2 emission/fuel consumption (M1) and electric energy consumption and range (M1 and N1)

102

00

00

—

Close coupling devices

103

00

00

2

Replacement catalytic converters

104

00

00

5

Retro-reflective markings (heavy and long vehicles)

105

02

04

—

Carriage of dangerous goods — construction of vehicles

106

00

00

4

Tyres (agricultural vehicles)

107

01

02

1

Buses and coaches

108

00

02

—

Retreaded Tyres (motor vehicles and their trailers)

109

00

00

4

Retreaded tyres (commercial vehicles and their trailers)

110

00

00

7

Compressed natural gas systems

111

00

00

1

Roll-over stability of tank vehicles (N and O)

112

00

00

8

Asymmetrical headlamps (filament lamps)

113

00

00

6

Symmetrical headlamps (filament lamps)

114

00

00

—

Replacement airbags

115

00

00

3

LPG-CNG retrofit systems

116

00

00

1

Unauthorised use (anti-theft and alarm systems)

117

00

01

—

Tyres rolling noise

118

00

00

—

Fire resistance of interior materials

119

00

00

2

Cornering lamps

120

00

00

—

Power — internal combustion (agricultural tractors and mobile machinery)

121

00

00

1

Hand controls, tell-tales and indicators

122

00

00

—

Heating systems

123

00

00

1

Adaptive Front-lighting Systems

124

00

00

—

(Replacement) Wheels for passenger vehicles

125

00

00

1

Driver's forward field of vision

126

00

00

—

Partitioning systems to protect passengers against displaced luggage

---

(1)  This column lists the latest amendments to the Regulation concerned that the European Communities has acceded to by 31 December 2007. Some of the more recent series of amendments or supplements to the series of amendments will enter into force after that date. The date of entry into force of these amendments should be checked in the latest version of the UNECE status document TRANS/WP.29/343/Rev.15 available at:

http://www.unece.org/trans/main/wp29/wp29wgs/wp29gen/wp29fdocstts.html

(2)  All relevant corrigenda up to 31 December 2007 have also been adopted, unless otherwise indicated.

---

IV Notices

NOTICES FROM EUROPEAN UNION INSTITUTIONS AND BODIES

Commission

| 20.2.2008 | EN | Official Journal of the European Union | C 47/5 |
| --- | --- | --- | --- |

20.2.2008

EN

Official Journal of the European Union

C 47/5

---

Euro exchange rates (1)

19 February 2008

(2008/C 47/02)

1 euro=

| | Currency | Exchange rate |
| --- | --- | --- |
| USD | US dollar | 1,4742 |
| JPY | Japanese yen | 158,64 |
| DKK | Danish krone | 7,4548 |
| GBP | Pound sterling | 0,7555 |
| SEK | Swedish krona | 9,3164 |
| CHF | Swiss franc | 1,6123 |
| ISK | Iceland króna | 98,42 |
| NOK | Norwegian krone | 7,8605 |
| BGN | Bulgarian lev | 1,9558 |
| CZK | Czech koruna | 25,319 |
| EEK | Estonian kroon | 15,6466 |
| HUF | Hungarian forint | 263,57 |
| LTL | Lithuanian litas | 3,4528 |
| LVL | Latvian lats | 0,6967 |
| PLN | Polish zloty | 3,5682 |
| RON | Romanian leu | 3,6353 |
| SKK | Slovak koruna | 33,051 |
| TRY | Turkish lira | 1,7565 |
| AUD | Australian dollar | 1,5984 |
| CAD | Canadian dollar | 1,4836 |
| HKD | Hong Kong dollar | 11,5 |
| NZD | New Zealand dollar | 1,841 |
| SGD | Singapore dollar | 2,0829 |
| KRW | South Korean won | 1 392,31 |
| ZAR | South African rand | 11,2474 |
| CNY | Chinese yuan renminbi | 10,5523 |
| HRK | Croatian kuna | 7,2815 |
| IDR | Indonesian rupiah | 13 518,41 |
| MYR | Malaysian ringgit | 4,7513 |
| PHP | Philippine peso | 59,853 |
| RUB | Russian rouble | 36,158 |
| THB | Thai baht | 46,658 |
| BRL | Brazilian real | 2,548 |
| MXN | Mexican peso | 15,8287 |

Currency

Exchange rate

USD

US dollar

1,4742

JPY

Japanese yen

158,64

DKK

Danish krone

7,4548

GBP

Pound sterling

0,7555

SEK

Swedish krona

9,3164

CHF

Swiss franc

1,6123

ISK

Iceland króna

98,42

NOK

Norwegian krone

7,8605

BGN

Bulgarian lev

1,9558

CZK

Czech koruna

25,319

EEK

Estonian kroon

15,6466

HUF

Hungarian forint

263,57

LTL

Lithuanian litas

3,4528

LVL

Latvian lats

0,6967

PLN

Polish zloty

3,5682

RON

Romanian leu

3,6353

SKK

Slovak koruna

33,051

TRY

Turkish lira

1,7565

AUD

Australian dollar

1,5984

CAD

Canadian dollar

1,4836

HKD

Hong Kong dollar

11,5

NZD

New Zealand dollar

1,841

SGD

Singapore dollar

2,0829

KRW

South Korean won

1 392,31

ZAR

South African rand

11,2474

CNY

Chinese yuan renminbi

10,5523

HRK

Croatian kuna

7,2815

IDR

Indonesian rupiah

13 518,41

MYR

Malaysian ringgit

4,7513

PHP

Philippine peso

59,853

RUB

Russian rouble

36,158

THB

Thai baht

46,658

BRL

Brazilian real

2,548

MXN

Mexican peso

15,8287

---

(1)

Source: reference exchange rate published by the ECB.

---

| 20.2.2008 | EN | Official Journal of the European Union | C 47/6 |
| --- | --- | --- | --- |

20.2.2008

EN

Official Journal of the European Union

C 47/6

---

Opinion of the Advisory Committee on concentrations given at its 151st meeting on 11 June 2007 concerning a draft decision relating to Case COMP/M.4439 — Ryanair/Aer Lingus

Rapporteur: Poland

(2008/C 47/03)

| 1. | The Advisory Committee agrees with the Commission that the notified operation constitutes a concentration within the meaning of Article 3(1)(b) of the EC Merger Regulation. |
| --- | --- |

1.

The Advisory Committee agrees with the Commission that the notified operation constitutes a concentration within the meaning of Article 3(1)(b) of the EC Merger Regulation.

| 2. | The majority of the Advisory Committee agrees with the Commission that the notified transaction can be deemed to have a Community dimension pursuant to Article 1(3) of the EC Merger Regulation. |
| --- | --- |

2.

The majority of the Advisory Committee agrees with the Commission that the notified transaction can be deemed to have a Community dimension pursuant to Article 1(3) of the EC Merger Regulation.

| 3. | The Advisory Committee agrees with the Commission's definitions of the relevant markets as stated in the draft decision. |
| --- | --- |

3.

The Advisory Committee agrees with the Commission's definitions of the relevant markets as stated in the draft decision.

| 4. | The Advisory Committee agrees with the Commission that the proposed transaction would significantly impede effective competition in the common market as a result of the creation of a dominant position of Ryanair and Aer Lingus on 35 routes from and to Dublin, Shannon and Cork. |
| --- | --- |

4.

The Advisory Committee agrees with the Commission that the proposed transaction would significantly impede effective competition in the common market as a result of the creation of a dominant position of Ryanair and Aer Lingus on 35 routes from and to Dublin, Shannon and Cork.

| 5. | The Advisory Committee agrees with the Commission that the proposed transaction would significantly impede effective competition as a result of the creation or strengthening of a dominant position by the elimination of a credible potential entrant on 15 routes from and to Dublin and Cork. |
| --- | --- |

5.

The Advisory Committee agrees with the Commission that the proposed transaction would significantly impede effective competition as a result of the creation or strengthening of a dominant position by the elimination of a credible potential entrant on 15 routes from and to Dublin and Cork.

| 6. | The Advisory Committee agrees with the Commission that the proposed transaction does not give rise to efficiencies that would counteract the significant impediment to effective competition resulting from it. |
| --- | --- |

6.

The Advisory Committee agrees with the Commission that the proposed transaction does not give rise to efficiencies that would counteract the significant impediment to effective competition resulting from it.

| 7. | The Advisory Committee agrees with the Commission that the final commitments offered by Ryanair do not address the competition concerns identified by the Commission in a sufficient manner and will therefore not eliminate the significant impediment to effective competition created by the transaction. |
| --- | --- |

7.

The Advisory Committee agrees with the Commission that the final commitments offered by Ryanair do not address the competition concerns identified by the Commission in a sufficient manner and will therefore not eliminate the significant impediment to effective competition created by the transaction.

| 8. | The Advisory Committee agrees with the Commission that the notified concentration must be declared incompatible with the common market and the functioning of the EEA Agreement. |
| --- | --- |

8.

The Advisory Committee agrees with the Commission that the notified concentration must be declared incompatible with the common market and the functioning of the EEA Agreement.

| 9. | The Advisory Committee asks the Commission to take into account all the other points raised during the discussion. |
| --- | --- |

9.

The Advisory Committee asks the Commission to take into account all the other points raised during the discussion.

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| 20.2.2008 | EN | Official Journal of the European Union | C 47/7 |
| --- | --- | --- | --- |

20.2.2008

EN

Official Journal of the European Union

C 47/7

---

Final report of the Hearing Officer in Case COMP/M.4439 — Ryanair/Aer Lingus

(Pursuant to Article 15 and 16 of Commission Decision 2001/462/EC, ECSC of 23 May 2001 on the terms of reference of Hearing Officers in certain competition proceedings — OJ L 162, 19.6.2001, p. 21)

(2008/C 47/04)

On 30 October 2006, the Commission received a notification pursuant to Article 4 of Council Regulation (EC) No 139/2004 (the Merger Regulation) of a proposed concentration by which Ryanair Holdings plc (Ryanair) acquires, within the meaning of Article 3(1)(b) of the Merger Regulation control of the undertaking Aer Lingus Group plc (Aer Lingus) by way of a public bid announced on 4 April 2006.

After an initial examination of the notification the Commission concluded that the notified concentration fell within the scope of the Merger Regulation and that, even taking into account commitments offered by the notifying party on 19 November 2006, subsequently modified on 14 December 2006, the proposed concentration raised serious doubts as to its compatibility with the common market and the functioning of the EEA Agreement.

Accordingly, on 20 December 2006, the Commission decided to initiate proceedings in accordance with Article 6(1)(c) of the Merger Regulation. On 22 February 2007, the Commission, in agreement with Ryanair, decided to extend the procedure by 20 days in accordance with Article 10(3), second subparagraph, of the Merger Regulation.

On 27 March 2007, the Commission sent a Statement of Objections to Ryanair. Access to the file was granted by way of a CD-ROM on 29 March 2007 and a subsequent Data-room procedure that had been agreed between Ryanair and Aer Lingus, in which commercially sensitive data could be analysed under conditions that ensured that the confidentiality of the underlying information was maintained. Ryanair submitted a written reply to the Statement of Objections on 17 April 2007. Further access to file was granted on 1, 6 and 8 June 2007.

During access to file Ryanair was inadvertently provided with confidential information of certain other parties. Remedial measures were undertaken and the affected parties were informed, as appropriate.

Ryanair did not request the opportunity to develop their arguments at an oral hearing pursuant to Article 14(1) of Regulation (EC) No 802/2004.

On 17 April 2007, Ryanair submitted commitments in order to resolve the competition concerns identified in the Statement of Objections. These commitments were subsequently modified on 3 May 2007, which triggered an extension of the deadline by 15 days in accordance with Article 10(3) of the Merger Regulation. The Commission conducted a market test of these commitments and Ryanair was granted access to the non-confidential replies to this market test on 16, 23 and 30 May. I have not been asked to verify the objectivity of the market inquiry.

After having examined the commitments, as modified by Ryanair on 3 May 2007, the Commission concluded that they did not sufficiently address the competition concerns identified in the Statement of Objections and that therefore, the concentration would significantly impede effective competition on the common market.

In my opinion the draft decision relates only to objections in respect of which Ryanair has been afforded the opportunity to make known their views.

Ryanair has not raised before me any issues with regard to its rights of defence during this procedure.

Other involved parties

Aer Lingus has had a particular position in the proceedings, as it is the target of a hostile take-over bid, and as such considered to be an ‘other involved party’ within the meaning of Article 11(b) of Regulation (EC) No 802/2204. Commensurate with this position Aer Lingus was closely involved at every stage in the proceedings. In particular, certain key documents were provided to Aer Lingus in the course of the Phase II investigation. It received a non-confidential copy of the Statement of Objections. It was also granted access to other documents in the file to the extent considered appropriate by DG Competition in order for it to submit its comments in accordance with Article 17(2) of Regulation (EC) No 802/2004. This included, amongst others, access to the Data-room in a manner similar to Ryanair. Aer Lingus also received a non-confidential copy of Ryanair's response to the Statement of Objections.

Aer Lingus claimed that its access to file was unduly limited and that it should have been entitled to full access to the file on the same basis as the notifying party in order to fully exercise its right to be heard. This claim was rejected by DG Competition and Aer Lingus did not pursue this issue subsequently before me.

Aer Lingus did not request the opportunity to develop their arguments at an oral hearing pursuant to Article 14(2) of Regulation (EC) No 802/2004.

Other third parties

Two interested third parties, within the meaning of Article 11(c) of Commission Regulation (EC) No 802/2004, requested to be admitted to the proceedings, namely the Irish Department of Transport (DoT) and SIPTU, a union representing employees of Aer Lingus. By decisions dated 4 April and 12 April 2007, I decided to admit them into the proceedings. Subsequently, DG Competition granted them the opportunity to make their views known.

Conclusion

I view of the above I consider that the rights to be heard of all participants to the present proceedings have been respected.

Brussels, 20 June 2007.

Karen WILLIAMS

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| 20.2.2008 | EN | Official Journal of the European Union | C 47/9 |
| --- | --- | --- | --- |

20.2.2008

EN

Official Journal of the European Union

C 47/9

---

Summary of Commission Decision

of 27 June 2007

declaring a concentration to be incompatible with the common market and the EEA Agreement

(Case COMP/M.4439 — Ryanair/Aer Lingus)

(Only the English text is authentic)

(Text with EEA relevance)

(2008/C 47/05)

On 27 June 2007, the Commission adopted a Decision in a merger case under Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the EC Merger Regulation)
   (1)
  , and in particular Article 8(3) of that Regulation. A non-confidential version of the full Decision can be found in the authentic language of the case on the website of the Directorate-General for Competition, at the following address:

http://ec.europa.eu/comm/competiton/index_en.html

I.   SUMMARY

| 1. | The case concerned the proposed acquisition by the Irish-based airline Ryanair of its competitor Aer Lingus. Both companies offer scheduled air transport services. Their operations overlap in particular at Dublin airport. |
| --- | --- |

1.

The case concerned the proposed acquisition by the Irish-based airline Ryanair of its competitor Aer Lingus. Both companies offer scheduled air transport services. Their operations overlap in particular at Dublin airport.

| 2. | The proposed acquisition, whereby Ryanair acquires sole control over Aer Lingus, constitutes a concentration within the meaning of Article 3(l)(b) of the Merger Regulation.The concentration has a Community dimension under Article 1(3) of the Merger Regulation. |
| --- | --- |

2.

The proposed acquisition, whereby Ryanair acquires sole control over Aer Lingus, constitutes a concentration within the meaning of Article 3(l)(b) of the Merger Regulation.The concentration has a Community dimension under Article 1(3) of the Merger Regulation.

| 3. | The decision sets out, in line with previous cases in the air transport sector, that the relevant product market includes point-to-point scheduled air transport services whereby each route between a point-of-origin and point-of-destination is defined as a separate market (O & D approach). The market investigation also concluded that certain airports serving similar catchment areas (e.g. primary airports served by Aer Lingus and secondary airports served by Ryanair) belong to the same relevant product market. |
| --- | --- |

3.

The decision sets out, in line with previous cases in the air transport sector, that the relevant product market includes point-to-point scheduled air transport services whereby each route between a point-of-origin and point-of-destination is defined as a separate market (O & D approach). The market investigation also concluded that certain airports serving similar catchment areas (e.g. primary airports served by Aer Lingus and secondary airports served by Ryanair) belong to the same relevant product market.

| 4. | The decision highlights that the merger would combine two low-frills airlines with a significant presence at in particular Dublin Airport, where they would account for approximately 80 % of European short-haul traffic post-merger. The decision identifies in total 35 routes on which the parties' activities overlap. Out of these routes, the transaction would lead to monopoly positions on 22 routes and very high combined market shares above 60 % on an additional 13 routes. Ryanair and Aer Lingus are also each other's most likely potential competitor on those routes that are presently served by only one of the merging parties. |
| --- | --- |

4.

The decision highlights that the merger would combine two low-frills airlines with a significant presence at in particular Dublin Airport, where they would account for approximately 80 % of European short-haul traffic post-merger. The decision identifies in total 35 routes on which the parties' activities overlap. Out of these routes, the transaction would lead to monopoly positions on 22 routes and very high combined market shares above 60 % on an additional 13 routes. Ryanair and Aer Lingus are also each other's most likely potential competitor on those routes that are presently served by only one of the merging parties.

| 5. | The Commission's investigation confirmed that there are substantial barriers to entry which would make difficult any new entry to the routes where the activities of the merging parties overlap. |
| --- | --- |

5.

The Commission's investigation confirmed that there are substantial barriers to entry which would make difficult any new entry to the routes where the activities of the merging parties overlap.

| 6. | Commitments submitted by Ryanair were found to fall significantly short of remedying the significant impediment to effective competition identified by the Commission. |
| --- | --- |

6.

Commitments submitted by Ryanair were found to fall significantly short of remedying the significant impediment to effective competition identified by the Commission.

| 7. | Hence, the decision concludes that the notified concentration would significantly impede effective competition on the identified routes to/from of Ireland and declares the concentration incompatible with the Common Market and the EEA Agreement. |
| --- | --- |

7.

Hence, the decision concludes that the notified concentration would significantly impede effective competition on the identified routes to/from of Ireland and declares the concentration incompatible with the Common Market and the EEA Agreement.

II.   THE PARTIES

| 8. | Ryanair is an airline offering point-to-point scheduled air transport services on more than 400 routes across 24 European countries. Ryanair operates more than 75 routes between Ireland (mainly Dublin, but also Shannon, Cork, Kerry and Knock) and other European countries. The company has a fleet of currently around 120 aircraft and 19 bases across Europe, the most important ones being London-Stansted and Dublin. |
| --- | --- |

8.

Ryanair is an airline offering point-to-point scheduled air transport services on more than 400 routes across 24 European countries. Ryanair operates more than 75 routes between Ireland (mainly Dublin, but also Shannon, Cork, Kerry and Knock) and other European countries. The company has a fleet of currently around 120 aircraft and 19 bases across Europe, the most important ones being London-Stansted and Dublin.

| 9. | Aer Lingus is a Dublin-based airline. Like Ryanair, it offers point-to point scheduled air transport services on more than 70 routes connecting the Irish airports of Dublin, Shannon and Cork with a number of European and several non-European destinations. In addition Aer Lingus offers long-haul flights, mainly to the Unites States, and cargo transport services and seats to tour operators. Aer Lingus is based principally at Dublin Airport (and to a smaller extent in Cork and Shannon) with a total fleet of 28 short-haul and 7 long-haul aircraft. |
| --- | --- |

9.

Aer Lingus is a Dublin-based airline. Like Ryanair, it offers point-to point scheduled air transport services on more than 70 routes connecting the Irish airports of Dublin, Shannon and Cork with a number of European and several non-European destinations. In addition Aer Lingus offers long-haul flights, mainly to the Unites States, and cargo transport services and seats to tour operators. Aer Lingus is based principally at Dublin Airport (and to a smaller extent in Cork and Shannon) with a total fleet of 28 short-haul and 7 long-haul aircraft.

III.   THE OPERATION

| 10. | The transaction concerns an acquisition of sole control by Ryanair of Aer Lingus by way of a public bid for all outstanding shares. Ryanair started to acquire a substantial number of shares, amounting to 25,17 % of Aer Lingus' share capital, between September and November 2006. On 5 October 2006, Ryanair also announced a public bid for the entire share capital of Aer Lingus with a deadline for acceptance until 13 November 2006, which was subsequently extended by Ryanair first until 4 December 2006 and then until 22 December 2006. Because Ryanair's share purchases and the public bid are closely connected in terms of timing and ultimate economic objective, the acquisition of shares before and during the public offer period and the public bid itself constitute a single concentration within the meaning of Article 3 of the Merger Regulation. The fact that Ryanair's bid has technically lapsed in the meantime does not remove the Commission's jurisdiction, since Ryanair has already announced to make a new bid should the Commission clear the transaction (2). |
| --- | --- |

10.

The transaction concerns an acquisition of sole control by Ryanair of Aer Lingus by way of a public bid for all outstanding shares. Ryanair started to acquire a substantial number of shares, amounting to 25,17 % of Aer Lingus' share capital, between September and November 2006. On 5 October 2006, Ryanair also announced a public bid for the entire share capital of Aer Lingus with a deadline for acceptance until 13 November 2006, which was subsequently extended by Ryanair first until 4 December 2006 and then until 22 December 2006. Because Ryanair's share purchases and the public bid are closely connected in terms of timing and ultimate economic objective, the acquisition of shares before and during the public offer period and the public bid itself constitute a single concentration within the meaning of Article 3 of the Merger Regulation. The fact that Ryanair's bid has technically lapsed in the meantime does not remove the Commission's jurisdiction, since Ryanair has already announced to make a new bid should the Commission clear the transaction (2).

IV.   COMMUNITY DIMENSION

| 11. | The concentration has a Community dimension under Article 1(3) of the Merger Regulation. The undertakings concerned have a combined aggregate world-wide turnover of more than EUR 2,500 million and both Ryanair and Aer Lingus have a Community-wide turnover in excess of EUR 100 million. The conditions of Article 1(3)(a) and (d) are therefore met. Furthermore, it is clear that Ryanair and Aer Lingus do not achieve more than two-thirds of their aggregate Community-wide turnover within one and the same Member State. Whether or not both Ryanair and Aer Lingus achieve a combined aggregate turnover of more than EUR 100 million in at least three Member States and each of them achieves at least EUR 25 million in these Member States, as required under Article 1(3)(b) and (c) of the Merger Regulation, depends on the geographical allocation of the turnover of these undertakings. |
| --- | --- |

11.

The concentration has a Community dimension under Article 1(3) of the Merger Regulation. The undertakings concerned have a combined aggregate world-wide turnover of more than EUR 2,500 million and both Ryanair and Aer Lingus have a Community-wide turnover in excess of EUR 100 million. The conditions of Article 1(3)(a) and (d) are therefore met. Furthermore, it is clear that Ryanair and Aer Lingus do not achieve more than two-thirds of their aggregate Community-wide turnover within one and the same Member State. Whether or not both Ryanair and Aer Lingus achieve a combined aggregate turnover of more than EUR 100 million in at least three Member States and each of them achieves at least EUR 25 million in these Member States, as required under Article 1(3)(b) and (c) of the Merger Regulation, depends on the geographical allocation of the turnover of these undertakings.

| 12. | The decision considers a number of methodologies for allocating turnover from ticket sales for flights between different Member States for which the location of the customer at the time of purchase cannot be identified. It concludes that, in such scenario and in the case at hand, from the possible alternative methodologies, in particular a ‘50/50’ methodology and a methodology based on place of departure for each ticket (both parties sell for European flights the one-way tickets only) even if the tickets for both outbound and returning inbound leg of the journey are bought at the same time seem to be the most appropriate methodologies, especially in case of point-to-point airlines such as Ryanair or Aer Lingus. |
| --- | --- |

12.

The decision considers a number of methodologies for allocating turnover from ticket sales for flights between different Member States for which the location of the customer at the time of purchase cannot be identified. It concludes that, in such scenario and in the case at hand, from the possible alternative methodologies, in particular a ‘50/50’ methodology and a methodology based on place of departure for each ticket (both parties sell for European flights the one-way tickets only) even if the tickets for both outbound and returning inbound leg of the journey are bought at the same time seem to be the most appropriate methodologies, especially in case of point-to-point airlines such as Ryanair or Aer Lingus.

V.   RELEVANT MARKETS

| 13. | The activities of Ryanair and Aer Lingus overlap in the field of scheduled passenger air transport services within the EEA. Ryanair argues that due to the specificity of its business model and its extremely low cost basis, its pricing is not constrained by any airline but rather by consumers' overall discretionary spending. The decision acknowledges that scheduled air transport services form indeed a differentiated market with a number of operational and business models and different levels of airline services. While both Ryanair and Aer Lingus can be considered low-frills carriers for their European operations, Ryanair is a clear-cut no-frills carrier, whereas Aer Lingus product is positioned somewhat higher, i.e. it provides some additional quality which Ryanair does not have (for instance it flies into more expensive main airports while Ryanair flies into secondary ones). This is reflected in the fact that Aer Lingus' average fares are higher than Ryanair's. However, despite this level of product differentiation, the decision sets out that Ryanair and Aer Lingus compete in the provision of these services. |
| --- | --- |

13.

The activities of Ryanair and Aer Lingus overlap in the field of scheduled passenger air transport services within the EEA. Ryanair argues that due to the specificity of its business model and its extremely low cost basis, its pricing is not constrained by any airline but rather by consumers' overall discretionary spending. The decision acknowledges that scheduled air transport services form indeed a differentiated market with a number of operational and business models and different levels of airline services. While both Ryanair and Aer Lingus can be considered low-frills carriers for their European operations, Ryanair is a clear-cut no-frills carrier, whereas Aer Lingus product is positioned somewhat higher, i.e. it provides some additional quality which Ryanair does not have (for instance it flies into more expensive main airports while Ryanair flies into secondary ones). This is reflected in the fact that Aer Lingus' average fares are higher than Ryanair's. However, despite this level of product differentiation, the decision sets out that Ryanair and Aer Lingus compete in the provision of these services.

| 14. | Ryanair submits that the relevant product market includes point-to-point scheduled air transport services whereby each route between a point-of-origin and point-of-destination is defined as a separate market. The decision explains that this is in line with the previous decision-making practice of the Commission (3) and that this approach was also confirmed by the in-depth market investigation. The other option, namely to define an overall market for short-haul flights from/to Ireland, which would have been based in particular on the supply-side substitutability between different routes from the common base of the parties in Dublin, was not upheld. The supply-side substitution would not be sufficiently immediate and effective. Further, this market definition would disregard the demand-side substitution between different routes, which is practically non-existent for a large majority of customers. |
| --- | --- |

14.

Ryanair submits that the relevant product market includes point-to-point scheduled air transport services whereby each route between a point-of-origin and point-of-destination is defined as a separate market. The decision explains that this is in line with the previous decision-making practice of the Commission (3) and that this approach was also confirmed by the in-depth market investigation. The other option, namely to define an overall market for short-haul flights from/to Ireland, which would have been based in particular on the supply-side substitutability between different routes from the common base of the parties in Dublin, was not upheld. The supply-side substitution would not be sufficiently immediate and effective. Further, this market definition would disregard the demand-side substitution between different routes, which is practically non-existent for a large majority of customers.

| 15. | Therefore, the O & D approach was confirmed by the Commission's market investigation. However, the relevant supply side considerations are not disregarded but are addressed within the framework of the competitive assessment. |
| --- | --- |

15.

Therefore, the O & D approach was confirmed by the Commission's market investigation. However, the relevant supply side considerations are not disregarded but are addressed within the framework of the competitive assessment.

| 16. | Ryanair further argues that the relevant O & D markets should be limited to airport-to-airport pairs as, according to Ryanair, even in cases where there are more airports in or in the vicinity of a particular city, the customer do not regard these airports as substitutable. By contrast, the Commission's investigation showed that a large number of these airports are regarded by the customers as substitutable and that the relevant O & D pairs should for many routes rather be defined on a city-to-city basis. The qualitative as well as the quantitative analysis confirmed the substitutability of airports for final passengers for 18 out of the in total 20 routes with exclusively city-to-city overlaps identified in the decision. Serving different airports is thus in this case only an element of differentiation between competing airline services within one market and does not justify defining two different markets. |
| --- | --- |

16.

Ryanair further argues that the relevant O & D markets should be limited to airport-to-airport pairs as, according to Ryanair, even in cases where there are more airports in or in the vicinity of a particular city, the customer do not regard these airports as substitutable. By contrast, the Commission's investigation showed that a large number of these airports are regarded by the customers as substitutable and that the relevant O & D pairs should for many routes rather be defined on a city-to-city basis. The qualitative as well as the quantitative analysis confirmed the substitutability of airports for final passengers for 18 out of the in total 20 routes with exclusively city-to-city overlaps identified in the decision. Serving different airports is thus in this case only an element of differentiation between competing airline services within one market and does not justify defining two different markets.

| 17. | The table below summarises the city-pairs for which the decision assesses substitutability. Only for Amsterdam/Eindhoven and Nantes/Rennes the market investigation indicated that these airports are not substitutable:
  Table 1
  List of relevant airports for determination of city pairs







  City |
| --- | --- |
| Airports |
| London | Manchester | Milan |
| Stansted (STN) | Manchester (MAN) | Milan Linate (LIN) |
| Heathrow (LHR) | Liverpool (LPL) | Malpensa (MXP) |
| Gatwick (LGW) | Leeds-Bradford (LBA) | Bergamo (Orio al Serio) (BGY) |
| Luton (LTN) | | |
| London City (LCY) | | |
| Barcelona | Birmingham | Newcastle |
| Barcelona (BCN) | Birmingham International (BHX) | Newcastle (NCL) |
| Girona-Costa Brava (GRO) | East Midlands (EMA) | Durham Tees Valley (MME) |
| Reus (REU) | | |
| Glasgow | Paris | Lyon |
| Glasgow International (GLA) | Paris Charles de Gaulle (CDG) | Lyon St Exupéry (LYS) |
| Prestwick (PIK) | Beauvais-Tillé (BVA) | Grenoble (GNB) |
| Toulouse | Nantes/Rennes | Brussels |
| Toulouse Blagnac (TLS) | Rennes (RNS) | Brussels (BRU) |
| Carcassonne (CCF) | Nantes Atlantique (NTE) | Charleroi Brussels South (CRL) |
| Amsterdam | Frankfurt | Hamburg |
| Amsterdam-Schiphol (AMS) | Frankfurt International (FRA) | Hamburg (HAM) |
| Eindhoven (EIN) | Hahn (HHN) | Lübeck Blankensee (LBC) |
| Vienna/Bratislava | Alicante | Bilbao |
| Vienna Schwechat International (VIE) | Alicante (ALC) | Bilbao Sondica (BIO) |
| Bratislava (BTS) | Murcia San Javier (MJV) | Vitoria (VIT) |
| Tenerife | Rome | Venice |
| Tenerife Norte Los Rodeos (TFN) | Rome Ciampino (CIA) | Venice (VCE) |
| Tenerife Sur Reina Sofia (TFS) | Rome Fiumicino (FCO) | Treviso (TSF) |
| Bologna | | |
| Bologna Guglielmo Marconi (BLQ) | | |
| Forlì (FRL) | | |

17.

The table below summarises the city-pairs for which the decision assesses substitutability. Only for Amsterdam/Eindhoven and Nantes/Rennes the market investigation indicated that these airports are not substitutable:

Table 1

List of relevant airports for determination of city pairs

City

Airports

London

Manchester

Milan

Stansted (STN)

Manchester (MAN)

Milan Linate (LIN)

Heathrow (LHR)

Liverpool (LPL)

Malpensa (MXP)

Gatwick (LGW)

Leeds-Bradford (LBA)

Bergamo (Orio al Serio) (BGY)

Luton (LTN)

London City (LCY)

Barcelona

Birmingham

Newcastle

Barcelona (BCN)

Birmingham International (BHX)

Newcastle (NCL)

Girona-Costa Brava (GRO)

East Midlands (EMA)

Durham Tees Valley (MME)

Reus (REU)

Glasgow

Paris

Lyon

Glasgow International (GLA)

Paris Charles de Gaulle (CDG)

Lyon St Exupéry (LYS)

Prestwick (PIK)

Beauvais-Tillé (BVA)

Grenoble (GNB)

Toulouse

Nantes/Rennes

Brussels

Toulouse Blagnac (TLS)

Rennes (RNS)

Brussels (BRU)

Carcassonne (CCF)

Nantes Atlantique (NTE)

Charleroi Brussels South (CRL)

Amsterdam

Frankfurt

Hamburg

Amsterdam-Schiphol (AMS)

Frankfurt International (FRA)

Hamburg (HAM)

Eindhoven (EIN)

Hahn (HHN)

Lübeck Blankensee (LBC)

Vienna/Bratislava

Alicante

Bilbao

Vienna Schwechat International (VIE)

Alicante (ALC)

Bilbao Sondica (BIO)

Bratislava (BTS)

Murcia San Javier (MJV)

Vitoria (VIT)

Tenerife

Rome

Venice

Tenerife Norte Los Rodeos (TFN)

Rome Ciampino (CIA)

Venice (VCE)

Tenerife Sur Reina Sofia (TFS)

Rome Fiumicino (FCO)

Treviso (TSF)

Bologna

Bologna Guglielmo Marconi (BLQ)

Forlì (FRL)

| 18. | The market investigation also confirmed that indirect flights and other means of transport cannot in general be regarded as substitutes for the direct flights of the parties on the overlap routes. Only intra-European flights with their short journey times are affected by the transaction. The Commission also in the past in general excluded indirect flights for these types of routes (subject to some case-by-case exceptions). Further, as this case concerns primarily point-to-point passengers with no (Ryanair) or only limited (Aer Lingus) connecting services, indirect flights are even more unattractive for the customers. In view of the geographic characteristics of Ireland, other means of transport are either not available (e.g. high speed trains) or not competitive with air transport (e.g. bus/ferry). |
| --- | --- |

18.

The market investigation also confirmed that indirect flights and other means of transport cannot in general be regarded as substitutes for the direct flights of the parties on the overlap routes. Only intra-European flights with their short journey times are affected by the transaction. The Commission also in the past in general excluded indirect flights for these types of routes (subject to some case-by-case exceptions). Further, as this case concerns primarily point-to-point passengers with no (Ryanair) or only limited (Aer Lingus) connecting services, indirect flights are even more unattractive for the customers. In view of the geographic characteristics of Ireland, other means of transport are either not available (e.g. high speed trains) or not competitive with air transport (e.g. bus/ferry).

| 19. | Ryanair puts forward that in particular on the predominantly leisure routes, charter airlines provide significant competitive constraints to the services of the parties. However, the market investigation did not confirm that charter airlines would to a significant extent constrain the merging parties on the Irish routes. The Commission's market investigation has shown that in Ireland, unlike in other countries, charter airlines offer only very few so-called ‘dry seats’, i.e. seats that are sold separately and not as part of a holiday package to end customers. There are also arguments to exclude the charter carriers' activities from the market (in particular the fact that their service is different (charter seats are predominantly sold in Ireland as part of the package holidays), they sell via different distribution channels (practically exclusively through tour operators), they provide less flexibility (charters usually operated only on weekends and thus cannot offer the flexibility of different flights during the week) and services are often seasonal). However, even if ‘dry seats’ sales were taken into account, the competitive assessment of the case would not be affected, due to the very limited number of ‘dry seats’ sold. |
| --- | --- |

19.

Ryanair puts forward that in particular on the predominantly leisure routes, charter airlines provide significant competitive constraints to the services of the parties. However, the market investigation did not confirm that charter airlines would to a significant extent constrain the merging parties on the Irish routes. The Commission's market investigation has shown that in Ireland, unlike in other countries, charter airlines offer only very few so-called ‘dry seats’, i.e. seats that are sold separately and not as part of a holiday package to end customers. There are also arguments to exclude the charter carriers' activities from the market (in particular the fact that their service is different (charter seats are predominantly sold in Ireland as part of the package holidays), they sell via different distribution channels (practically exclusively through tour operators), they provide less flexibility (charters usually operated only on weekends and thus cannot offer the flexibility of different flights during the week) and services are often seasonal). However, even if ‘dry seats’ sales were taken into account, the competitive assessment of the case would not be affected, due to the very limited number of ‘dry seats’ sold.

| 20. | Further, the Commission has in the past differentiated between time-sensitive and non time-sensitive passengers (or business and leisure passengers). However, the market investigation in the present case confirmed that in view of the specific characteristics of the merging parties differing from the network full-service airlines assessed in the previous cases, this distinction does not justify in the present case to define separate markets. Even though this differentiation of customers does exist, it is not possible in the present case to define two distinct and separate groups of customers as both merging airlines do not discriminate between these types of passengers and as there is rather a continuum of various passenger types between these two extremes. Therefore, although the overall proportion of more time-sensitive passengers is taken into account in the competitive analysis, there are no distinct markets defined for these groups of passengers. |
| --- | --- |

20.

Further, the Commission has in the past differentiated between time-sensitive and non time-sensitive passengers (or business and leisure passengers). However, the market investigation in the present case confirmed that in view of the specific characteristics of the merging parties differing from the network full-service airlines assessed in the previous cases, this distinction does not justify in the present case to define separate markets. Even though this differentiation of customers does exist, it is not possible in the present case to define two distinct and separate groups of customers as both merging airlines do not discriminate between these types of passengers and as there is rather a continuum of various passenger types between these two extremes. Therefore, although the overall proportion of more time-sensitive passengers is taken into account in the competitive analysis, there are no distinct markets defined for these groups of passengers.

| 21. | To assess whether two airports are substitutable from the customers' point of view the Commission has relied on a number of sources of evidence:






  — | distances and travel times were compared to the indicative benchmark of 100 km/1 hour driving time. This benchmark was used as a starting point and was interpreted in the light of the particularities of the respective airport and the other elements considered, |
| --- | --- | --- |

21.

To assess whether two airports are substitutable from the customers' point of view the Commission has relied on a number of sources of evidence:

—

distances and travel times were compared to the indicative benchmark of 100 km/1 hour driving time. This benchmark was used as a starting point and was interpreted in the light of the particularities of the respective airport and the other elements considered,

| — | the views of competitors to the merged entity expressed in the Commission's market investigation. Almost all competitors regarded primary and secondary airports as substitutable for non time-sensitive passengers, |
| --- | --- |

—

the views of competitors to the merged entity expressed in the Commission's market investigation. Almost all competitors regarded primary and secondary airports as substitutable for non time-sensitive passengers,

| — | the views of airports and of Member States' civil aviation authorities to the extent such views were expressed during the course of the Commission's investigation and results of reports of such authorities made independently of the proposed transaction, |
| --- | --- |

—

the views of airports and of Member States' civil aviation authorities to the extent such views were expressed during the course of the Commission's investigation and results of reports of such authorities made independently of the proposed transaction,

| — | when relevant, the Commission also took into account the fact that airports form part of a so-called ‘airport system’ pursuant to Annex II of Council Regulation (EEC) No 2408/92 of 23 July 1992 on access for Community air carriers to intra-Community air routes, |
| --- | --- |

—

when relevant, the Commission also took into account the fact that airports form part of a so-called ‘airport system’ pursuant to Annex II of Council Regulation (EEC) No 2408/92 of 23 July 1992 on access for Community air carriers to intra-Community air routes,

| — | marketing practices and in particular the way in which Ryanair markets its services, and the fact that certain airports are presented as serving a specific city/conurbation is considered as additional evidence as this forms part of the elements that customers take into consideration when purchasing an airline ticket over the Internet, |
| --- | --- |

—

marketing practices and in particular the way in which Ryanair markets its services, and the fact that certain airports are presented as serving a specific city/conurbation is considered as additional evidence as this forms part of the elements that customers take into consideration when purchasing an airline ticket over the Internet,

| — | the estimated proportion of leisure passengers on a route. It is generally acknowledged that leisure passengers tend to be more price sensitive. They are more inclined to trading a longer total journey time in exchange for a lower total journey cost than business passengers. On routes where the estimated proportion of leisure passengers is high therefore, it is reasonable to assume that airport substitutability from the standpoint of passengers is wider rather than narrower, |
| --- | --- |

—

the estimated proportion of leisure passengers on a route. It is generally acknowledged that leisure passengers tend to be more price sensitive. They are more inclined to trading a longer total journey time in exchange for a lower total journey cost than business passengers. On routes where the estimated proportion of leisure passengers is high therefore, it is reasonable to assume that airport substitutability from the standpoint of passengers is wider rather than narrower,

| — | whether transport services exist between the secondary airports and certain cities and whether these are marketed through Ryanair's own website or perhaps organised by Ryanair itself is considered as additional evidence, |
| --- | --- |

—

whether transport services exist between the secondary airports and certain cities and whether these are marketed through Ryanair's own website or perhaps organised by Ryanair itself is considered as additional evidence,

| — | the result of the Commission's price correlation analysis for seventeen city-pair routes out of Dublin as available, and |
| --- | --- |

—

the result of the Commission's price correlation analysis for seventeen city-pair routes out of Dublin as available, and

| — | finally, the customer survey conducted at Dublin Airport which provides indirect evidence as to the substitutability of certain airport pairs from the demand side. |
| --- | --- |

—

finally, the customer survey conducted at Dublin Airport which provides indirect evidence as to the substitutability of certain airport pairs from the demand side.

| 22. | Based on the above sets of evidence, the decision concludes that for the purpose of the assessment of the proposed transaction the relevant market is the market for scheduled passenger point-to-point air transport services. Such markets are defined on an O & D basis, which may given the circumstances of the relevant O & D include two or more airports at one end of the O & D (catchment area). |
| --- | --- |

22.

Based on the above sets of evidence, the decision concludes that for the purpose of the assessment of the proposed transaction the relevant market is the market for scheduled passenger point-to-point air transport services. Such markets are defined on an O & D basis, which may given the circumstances of the relevant O & D include two or more airports at one end of the O & D (catchment area).

VI.   COMPETITIVE ASSESSMENT

| 23. | The decision highlights that the proposed transaction is different from the previous air transport cases assessed by the Commission because the merging parties are both ‘low-frills’ carriers concentrating on point-to-point traffic within Europe. Further, the merger would combine two airlines with a significant presence at their strong bases at Dublin Airport, where they would account for approximately 80 % of European short-haul traffic post-merger. As a result, Aer Lingus' and Ryanair's operations overlap on an unprecedented large number of routes. |
| --- | --- |

23.

The decision highlights that the proposed transaction is different from the previous air transport cases assessed by the Commission because the merging parties are both ‘low-frills’ carriers concentrating on point-to-point traffic within Europe. Further, the merger would combine two airlines with a significant presence at their strong bases at Dublin Airport, where they would account for approximately 80 % of European short-haul traffic post-merger. As a result, Aer Lingus' and Ryanair's operations overlap on an unprecedented large number of routes.

| 24. | The decision identifies in total 35 routes on which the activities of the parties overlap. The following table provides an overview of these overlap routes with market shares of the parties and their existing competitors:
  Table 2
  Routes with existing overlaps between Ryanair and Aer Lingus with market shares of the Merging Parties and all existing competitors (4)











  Route | Ryanair | Aer Lingus | Combined | Existing competitors | Share |
| --- | --- | --- | --- | --- | --- | --- |
| Dublin-Alicante | [50-60 %] | [40-50 %] | 100 % | | [0-5 %] |
| Dublin-Barcelona | [40-50 %] | [30-40 %] | [70-80 %] | Iberia/Clickair | [20-30 %] |
| Dublin-Berlin | [50-60 %] | [40-50 %] | 100 % | | |
| Dublin-Bilbao/Vitoria | [50-60 %] | [40-50 %] | 100 % | | |
| Dublin-Birmingham | [60-70 %] | [30-40 %] | 100 % | | |
| Dublin-Bologna | [50-60 %] | [40-50 %] | 100 % | | |
| Dublin-Brussels | [50-60 %] | [40-50 %] | 100 % | | |
| Dublin-Edinburgh | [70-80 %] | [20-30 %] | 100 % | | |
| Dublin-Faro | [40-50 %] | [50-60 %] | 100 % | | |
| Dublin-Frankfurt | [40-50 %] | [40-50 %] | [80-90 %] | Lufthansa | [10-20 %] |
| Dublin-Glasgow | [50-60 %] | [30-40 %] | [90-100 %] | Loganair | [0-10 %] |
| Dublin-Hamburg/Lübeck | [60-70 %] | [30-40 %] | 100 % | | |
| Dublin-Krakow | [30-40 %] | [40-50 %] | [70-80 %] | SkyEurope | [20-30 %] |
| Dublin-London | [40-50 %] | [30-40 %] | [70-80 %] | BMI | [10-20 %] |
| British Airways | [0-10 %] |
| CityJet | [0-10 %] |
| Dublin-Lyon | [30-40 %] | [60-70 %] | 100 % | | |
| Dublin-Madrid | [20-30 %] | [30-40 %] | [60-70 %] | Iberia | [30-40 %] |
| Dublin-Malaga | [30-40 %] | [60-70 %] | [90-100 %] | Spanair | [0-10 %] |
| Dublin-Manchester | [70-80 %] | [20-30 %] | [90-100 %] | Luxair | [0-10 %] |
| Dublin-Marseille | [50-60 %] | [40-50 %] | 100 % | | |
| Dublin-Milan | [30-40 %] | [60-70 %] | 100 % | | |
| Dublin-Newcastle | [70-80 %] | [20-30 %] | 100 % | | |
| Dublin-Paris | [40-50 %] | [30-40 %] | [80-90 %] | AF/CityJet | [10-20 %] |
| Dublin-Poznan | [60-70 %] | [30-40 %] | 100 % | | |
| Dublin-Riga | [40-50 %] | [20-30 %] | [70-80 %] | Air Baltic | [20-30 %] |
| Dublin-Rome | [40-50 %] | [50-60 %] | 100 % | | |
| Dublin-Salzburg | [50-60 %] | [40-50 %] | 100 % | | |
| Dublin-Seville | [50-60 %] | [40-50 %] | 100 % | | |
| Dublin-Tenerife | [50-60 %] | [40-50 %] | 100 % | | |
| Dublin-Toulouse/Carcassonne | [60-70 %] | [30-40 %] | 100 % | | |
| Dublin-Venice | [40-50 %] | [50-60 %] | 100 % | | |
| Dublin-Vienna/Bratislava | [20-30 %] | [50-60 %] | [70-80 %] | SkyEurope | [20-30 %] |
| Austrian Airlines | [0-10 %] |
| Dublin-Warsaw | [30-40 %] | [30-40 %] | [60-70 %] | LOT | [10-20 %] |
| Norwegian Airline Shuttle | [10-20 %] |
| Shannon-London | [50-60 %] | [40-50 %] | 100 % | | |
| Cork-London | [50-60 %] | [40-50 %] | 100 % | | |
| Cork-Manchester | [40-50 %] | [10-20 %] | [60-70 %] | bmibaby | [30-40 %] |
| Aer Arann | [0-10 %] |

24.

The decision identifies in total 35 routes on which the activities of the parties overlap. The following table provides an overview of these overlap routes with market shares of the parties and their existing competitors:

Table 2

Routes with existing overlaps between Ryanair and Aer Lingus with market shares of the Merging Parties and all existing competitors (4)

Route

Ryanair

Aer Lingus

Combined

Existing competitors

Share

Dublin-Alicante

[50-60 %]

[40-50 %]

100 %

[0-5 %]

Dublin-Barcelona

[40-50 %]

[30-40 %]

[70-80 %]

Iberia/Clickair

[20-30 %]

Dublin-Berlin

[50-60 %]

[40-50 %]

100 %

Dublin-Bilbao/Vitoria

[50-60 %]

[40-50 %]

100 %

Dublin-Birmingham

[60-70 %]

[30-40 %]

100 %

Dublin-Bologna

[50-60 %]

[40-50 %]

100 %

Dublin-Brussels

[50-60 %]

[40-50 %]

100 %

Dublin-Edinburgh

[70-80 %]

[20-30 %]

100 %

Dublin-Faro

[40-50 %]

[50-60 %]

100 %

Dublin-Frankfurt

[40-50 %]

[40-50 %]

[80-90 %]

Lufthansa

[10-20 %]

Dublin-Glasgow

[50-60 %]

[30-40 %]

[90-100 %]

Loganair

[0-10 %]

Dublin-Hamburg/Lübeck

[60-70 %]

[30-40 %]

100 %

Dublin-Krakow

[30-40 %]

[40-50 %]

[70-80 %]

SkyEurope

[20-30 %]

Dublin-London

[40-50 %]

[30-40 %]

[70-80 %]

BMI

[10-20 %]

British Airways

[0-10 %]

CityJet

[0-10 %]

Dublin-Lyon

[30-40 %]

[60-70 %]

100 %

Dublin-Madrid

[20-30 %]

[30-40 %]

[60-70 %]

Iberia

[30-40 %]

Dublin-Malaga

[30-40 %]

[60-70 %]

[90-100 %]

Spanair

[0-10 %]

Dublin-Manchester

[70-80 %]

[20-30 %]

[90-100 %]

Luxair

[0-10 %]

Dublin-Marseille

[50-60 %]

[40-50 %]

100 %

Dublin-Milan

[30-40 %]

[60-70 %]

100 %

Dublin-Newcastle

[70-80 %]

[20-30 %]

100 %

Dublin-Paris

[40-50 %]

[30-40 %]

[80-90 %]

AF/CityJet

[10-20 %]

Dublin-Poznan

[60-70 %]

[30-40 %]

100 %

Dublin-Riga

[40-50 %]

[20-30 %]

[70-80 %]

Air Baltic

[20-30 %]

Dublin-Rome

[40-50 %]

[50-60 %]

100 %

Dublin-Salzburg

[50-60 %]

[40-50 %]

100 %

Dublin-Seville

[50-60 %]

[40-50 %]

100 %

Dublin-Tenerife

[50-60 %]

[40-50 %]

100 %

Dublin-Toulouse/Carcassonne

[60-70 %]

[30-40 %]

100 %

Dublin-Venice

[40-50 %]

[50-60 %]

100 %

Dublin-Vienna/Bratislava

[20-30 %]

[50-60 %]

[70-80 %]

SkyEurope

[20-30 %]

Austrian Airlines

[0-10 %]

Dublin-Warsaw

[30-40 %]

[30-40 %]

[60-70 %]

LOT

[10-20 %]

Norwegian Airline Shuttle

[10-20 %]

Shannon-London

[50-60 %]

[40-50 %]

100 %

Cork-London

[50-60 %]

[40-50 %]

100 %

Cork-Manchester

[40-50 %]

[10-20 %]

[60-70 %]

bmibaby

[30-40 %]

Aer Arann

[0-10 %]

| 25. | The transaction would lead to monopoly on 22 routes and very high combined market shares above 60 % on a further 13 routes. |
| --- | --- |

25.

The transaction would lead to monopoly on 22 routes and very high combined market shares above 60 % on a further 13 routes.

| 26. | Ryanair argues in its defence that the two merging parties are not the closest competitors as they are ‘fundamentally different’ and ‘occupy different spaces in the markets in which they operate’. Further, Ryanair argues that there are no significant barriers to entry due to airport congestion and that the merging parties do not enjoy any unique position in Dublin and in Ireland in general which would prevent competing airlines from entering the affected markets or even from basing their aircraft in Ireland. |
| --- | --- |

26.

Ryanair argues in its defence that the two merging parties are not the closest competitors as they are ‘fundamentally different’ and ‘occupy different spaces in the markets in which they operate’. Further, Ryanair argues that there are no significant barriers to entry due to airport congestion and that the merging parties do not enjoy any unique position in Dublin and in Ireland in general which would prevent competing airlines from entering the affected markets or even from basing their aircraft in Ireland.

| 27. | In addition, Ryanair claims that there are a number of competing airlines which would be able to enter the overlap routes in case the merged entity would increase prices. In fact, on many of the routes where the parties have a 100 % combined market share, there exist potential competitors at the destination airport. For instance, in Berlin, Air Berlin, Lufthansa, Germanwings and easyJet have a base. The same applies in Birmingham for Flybe, BA, BMI and easyJet (etc.). According to Ryanair these potential competitors do not have to be based at Dublin airport to constitute an effective constraint on the merged entity but could enter the relevant routes either from their existing base at the destination non-Irish airport or even without any base at either end of the route. However, as set out in more detail in the decision, the results of the Commission's investigation do not confirm that these carriers are a constraint which is as effective as the one exerted on each other by the parties. |
| --- | --- |

27.

In addition, Ryanair claims that there are a number of competing airlines which would be able to enter the overlap routes in case the merged entity would increase prices. In fact, on many of the routes where the parties have a 100 % combined market share, there exist potential competitors at the destination airport. For instance, in Berlin, Air Berlin, Lufthansa, Germanwings and easyJet have a base. The same applies in Birmingham for Flybe, BA, BMI and easyJet (etc.). According to Ryanair these potential competitors do not have to be based at Dublin airport to constitute an effective constraint on the merged entity but could enter the relevant routes either from their existing base at the destination non-Irish airport or even without any base at either end of the route. However, as set out in more detail in the decision, the results of the Commission's investigation do not confirm that these carriers are a constraint which is as effective as the one exerted on each other by the parties.

The merger removes existing competition between the two closest competitors on the Irish routes

| 28. | Despite being a former State-owned Irish flag carrier, Aer Lingus has implemented a restructuring plan and significantly changed its business model and has repositioned itself as a ‘low-frills’ (or ‘low-cost’ or ‘low fares’) airline focused on point-to-point services on its short-haul routes. The services included in the Aer Lingus base fare are broadly in line with those included in the Ryanair base fare. Even though there continue to be some differences in the services offered by both carriers, which are also reflected in their different fare level, this does not exclude existence of effective competitive constraints between Ryanair and Aer Lingus. On the contrary, the market investigation confirmed that on the routes where both operate, each of them takes into account the fares and services offered by the other and adjust its operations and fares accordingly. Further, most of the competitors present on the overlap routes are either full-service network carriers (e.g. Lufthansa, Air France/CityJet, Iberia, BMI) or smaller regional airlines, often focusing on business customers (e.g. Loganair, Luxair or the Dublin based Aer Arann) which cannot be considered as close competitors to the parties. Finally, the customer survey has shown for the routes covered, that passengers consider the parties to be closer substitutes than other carriers. |
| --- | --- |

28.

Despite being a former State-owned Irish flag carrier, Aer Lingus has implemented a restructuring plan and significantly changed its business model and has repositioned itself as a ‘low-frills’ (or ‘low-cost’ or ‘low fares’) airline focused on point-to-point services on its short-haul routes. The services included in the Aer Lingus base fare are broadly in line with those included in the Ryanair base fare. Even though there continue to be some differences in the services offered by both carriers, which are also reflected in their different fare level, this does not exclude existence of effective competitive constraints between Ryanair and Aer Lingus. On the contrary, the market investigation confirmed that on the routes where both operate, each of them takes into account the fares and services offered by the other and adjust its operations and fares accordingly. Further, most of the competitors present on the overlap routes are either full-service network carriers (e.g. Lufthansa, Air France/CityJet, Iberia, BMI) or smaller regional airlines, often focusing on business customers (e.g. Loganair, Luxair or the Dublin based Aer Arann) which cannot be considered as close competitors to the parties. Finally, the customer survey has shown for the routes covered, that passengers consider the parties to be closer substitutes than other carriers.

| 29. | The investigation has thus confirmed that the services of the merging parties are close substitutes in a differentiated market for passenger air transport services and that there is a high degree of competition between Ryanair and Aer Lingus for destinations, capacity, schedules, prices and service to/from Ireland. The Commission has notably found that both Aer Lingus and Ryanair closely follow the behaviour of each other. In particular, they use specific software to monitor its fares and in their yield management systems they adjust their capacities and lower their prices in reaction to the competitive behaviour of their main competitor. Should the sales of the tickets on the plane fall behind forecast (e.g. as a result of lower prices/promotions of the other), the analysts of both companies try to stimulate the demand, normally by making more seats available in the cheaper price categories. This is confirmed by the fact that in marketing campaigns they both present their low fares as a key argument and they often compare themselves to one another. The proposed transaction would thus remove the important competitive rivalry between the two parties on a number of routes on which their activities overlap and thus lead to higher prices. This is also confirmed also by the Commission's quantitative analysis which provides evidence about the effect of the presence of Ryanair on Aer Lingus fares. |
| --- | --- |

29.

The investigation has thus confirmed that the services of the merging parties are close substitutes in a differentiated market for passenger air transport services and that there is a high degree of competition between Ryanair and Aer Lingus for destinations, capacity, schedules, prices and service to/from Ireland. The Commission has notably found that both Aer Lingus and Ryanair closely follow the behaviour of each other. In particular, they use specific software to monitor its fares and in their yield management systems they adjust their capacities and lower their prices in reaction to the competitive behaviour of their main competitor. Should the sales of the tickets on the plane fall behind forecast (e.g. as a result of lower prices/promotions of the other), the analysts of both companies try to stimulate the demand, normally by making more seats available in the cheaper price categories. This is confirmed by the fact that in marketing campaigns they both present their low fares as a key argument and they often compare themselves to one another. The proposed transaction would thus remove the important competitive rivalry between the two parties on a number of routes on which their activities overlap and thus lead to higher prices. This is also confirmed also by the Commission's quantitative analysis which provides evidence about the effect of the presence of Ryanair on Aer Lingus fares.

| 30. | Apart from competing on direct overlap routes, the decision also highlights the fact that both carriers are based at the same airport and that this has led to a dynamic competitive environment where both carriers frequently enter and exit new routes. The transaction therefore does not only remove the actual competition between the parties on the current overlap routes, but it also eliminates Ryanair and Aer Lingus as the most likely potential entrant on existing routes to/from Ireland which are currently served by only one of the parties. |
| --- | --- |

30.

Apart from competing on direct overlap routes, the decision also highlights the fact that both carriers are based at the same airport and that this has led to a dynamic competitive environment where both carriers frequently enter and exit new routes. The transaction therefore does not only remove the actual competition between the parties on the current overlap routes, but it also eliminates Ryanair and Aer Lingus as the most likely potential entrant on existing routes to/from Ireland which are currently served by only one of the parties.

The barriers to entry to the markets dominated by the merged entity are high

| 31. | The Commission's investigation confirmed that there are substantial barriers to entry which would make difficult any new entry to the routes where the activities of the merging parties overlap. These barriers to entry relate in particular to: (i) a disadvantage of not having large operations (‘bases’) in Dublin; (ii) significant entry costs and risks for any new competitor in a market which is already served by two strong airlines with well-established brands in particular in Ireland; (iii) Ryanair's reputation to react aggressively to entrants; (iv) capacity constraints at Dublin airport as well as at some destination airports. |
| --- | --- |

31.

The Commission's investigation confirmed that there are substantial barriers to entry which would make difficult any new entry to the routes where the activities of the merging parties overlap. These barriers to entry relate in particular to: (i) a disadvantage of not having large operations (‘bases’) in Dublin; (ii) significant entry costs and risks for any new competitor in a market which is already served by two strong airlines with well-established brands in particular in Ireland; (iii) Ryanair's reputation to react aggressively to entrants; (iv) capacity constraints at Dublin airport as well as at some destination airports.

| 32. | The decision presents several pieces of evidence confirming that a large base in Dublin provides important cost advantages and flexibility for any carrier operating routes to/from Dublin. Therefore, removal of the main actual or potential competitor of Ryanair based in Dublin (and to a lesser extent Cork and Shannon) would inevitably soften the competitive constraints faced by Ryanair on the Irish routes. None of the other carriers would be in a position to effectively replace Aer Lingus with its current flexibility and cost efficiency to compete on a number of routes to/from Ireland. Any new entrant would face a strong and established merged entity with substantial cost advantage which would be able to react quickly to any selective entry on only a few routes to/from Ireland. It should be however acknowledged that carriers based on the destination airport could enjoy a similar base advantage for that particular route. However, these carriers face the other entry barriers identified by the investigation and as indicated below, there is no indication that any of them would be a likely entrant which could exert sufficient competitive constraints to the merged entity. |
| --- | --- |

32.

The decision presents several pieces of evidence confirming that a large base in Dublin provides important cost advantages and flexibility for any carrier operating routes to/from Dublin. Therefore, removal of the main actual or potential competitor of Ryanair based in Dublin (and to a lesser extent Cork and Shannon) would inevitably soften the competitive constraints faced by Ryanair on the Irish routes. None of the other carriers would be in a position to effectively replace Aer Lingus with its current flexibility and cost efficiency to compete on a number of routes to/from Ireland. Any new entrant would face a strong and established merged entity with substantial cost advantage which would be able to react quickly to any selective entry on only a few routes to/from Ireland. It should be however acknowledged that carriers based on the destination airport could enjoy a similar base advantage for that particular route. However, these carriers face the other entry barriers identified by the investigation and as indicated below, there is no indication that any of them would be a likely entrant which could exert sufficient competitive constraints to the merged entity.

| 33. | The significant entry costs and risks relate to the fact that Irish intra-European flights are now dominated by Ryanair and Aer Lingus who have well established brands and a portfolio of a large number of routes. Competing against these two well-established brands makes, according to possible entrants, competition much more difficult than in other countries where not two well-established low-frills carriers are present with large bases. Further, there are significant shares of Irish-originating passengers on many of the overlap routes. Therefore, any new entrant would have to invest substantial amounts into marketing and promotion in Ireland. Further, the decision exhibits several examples of aggressive reaction by Ryanair against new entrants on the Irish markets. For example, easyJet tried to enter in 2005 three routes from London to three regional Irish airports. Ryanair immediately reacted by lowering fares and increasing capacities to drive easyJet away of the Irish market. A number of competing airlines thus indicated that, taking into account the limited volume of the Irish market and the investments and risks involved in establishing a presence in this market, they would have better opportunities elsewhere in Europe. |
| --- | --- |

33.

The significant entry costs and risks relate to the fact that Irish intra-European flights are now dominated by Ryanair and Aer Lingus who have well established brands and a portfolio of a large number of routes. Competing against these two well-established brands makes, according to possible entrants, competition much more difficult than in other countries where not two well-established low-frills carriers are present with large bases. Further, there are significant shares of Irish-originating passengers on many of the overlap routes. Therefore, any new entrant would have to invest substantial amounts into marketing and promotion in Ireland. Further, the decision exhibits several examples of aggressive reaction by Ryanair against new entrants on the Irish markets. For example, easyJet tried to enter in 2005 three routes from London to three regional Irish airports. Ryanair immediately reacted by lowering fares and increasing capacities to drive easyJet away of the Irish market. A number of competing airlines thus indicated that, taking into account the limited volume of the Irish market and the investments and risks involved in establishing a presence in this market, they would have better opportunities elsewhere in Europe.

| 34. | As regards the capacity constraints in terms of slots, the decision underlines that (contrary to the previous air transport merger cases) although their significance is important they are only part of the general barriers to entry. The capacity constraints at the Dublin airport are limited to the peak hours of the day. However, even if Dublin Airport is only partly congested, this congestion constitutes a barrier for potential entrants to compete effectively with Aer Lingus and Ryanair in particular on those routes where high frequency services covering peak times of the day are necessary. Further, on a number of these routes, congestion at the destination airports (in particular London, Paris, Frankfurt or Milan) also creates a barrier to entry for those carriers which for the supply-side reasons do not have a possibility to efficiently use any possible substitute airport (such as Paris-Beauvais or Frankfurt-Hahn). Further, limited capacity at Dublin (with most of the morning slots used by the merged entity) creates a substantial barrier for any competing airline which would want to set up a base at Dublin airport with more important presence. |
| --- | --- |

34.

As regards the capacity constraints in terms of slots, the decision underlines that (contrary to the previous air transport merger cases) although their significance is important they are only part of the general barriers to entry. The capacity constraints at the Dublin airport are limited to the peak hours of the day. However, even if Dublin Airport is only partly congested, this congestion constitutes a barrier for potential entrants to compete effectively with Aer Lingus and Ryanair in particular on those routes where high frequency services covering peak times of the day are necessary. Further, on a number of these routes, congestion at the destination airports (in particular London, Paris, Frankfurt or Milan) also creates a barrier to entry for those carriers which for the supply-side reasons do not have a possibility to efficiently use any possible substitute airport (such as Paris-Beauvais or Frankfurt-Hahn). Further, limited capacity at Dublin (with most of the morning slots used by the merged entity) creates a substantial barrier for any competing airline which would want to set up a base at Dublin airport with more important presence.

The competitors are not likely to replace the loss of competition caused by the transaction

| 35. | In view of the barriers to entry described above, the Commission's market investigation further focused on identifying any carriers which would have the ability and incentive to enter the overlap routes and provide efficient competitive constraints to the merged entity. The decision has assessed to what extent individual competitors might have the intention to enter into direct competition with Ryanair/Aer Lingus post-merger in case of a price increase. |
| --- | --- |

35.

In view of the barriers to entry described above, the Commission's market investigation further focused on identifying any carriers which would have the ability and incentive to enter the overlap routes and provide efficient competitive constraints to the merged entity. The decision has assessed to what extent individual competitors might have the intention to enter into direct competition with Ryanair/Aer Lingus post-merger in case of a price increase.

| 36. | The potential entrants analysed in more detail in the decision include Air France/CityJet, Aer Arann, easyJet, British Airways, BMI/bmibaby, Flybe/BA Connect, SkyEurope, Air Berlin, and Clickair. However, most of these carriers in replies to the market survey and during interviews referred to the above described barriers to entry and difficulties they would face in establishing their operations against the strong position of the merged entity. The decision indicates that no airlines can be expected to enter in competition against Ryanair/Aer Lingus at a larger scale, providing a competitive constraint on the merged entity comparable to the constraint currently exercised on each other by Ryanair and Aer Lingus. |
| --- | --- |

36.

The potential entrants analysed in more detail in the decision include Air France/CityJet, Aer Arann, easyJet, British Airways, BMI/bmibaby, Flybe/BA Connect, SkyEurope, Air Berlin, and Clickair. However, most of these carriers in replies to the market survey and during interviews referred to the above described barriers to entry and difficulties they would face in establishing their operations against the strong position of the merged entity. The decision indicates that no airlines can be expected to enter in competition against Ryanair/Aer Lingus at a larger scale, providing a competitive constraint on the merged entity comparable to the constraint currently exercised on each other by Ryanair and Aer Lingus.

| 37. | Therefore, the market investigation did not confirm that potential entry or expansion on the individual overlap routes would be likely, timely and sufficient to constitute a competitive constraint for the merged entity and would thus compensate for the loss of the rivalry between Ryanair and Aer Lingus on this route. |
| --- | --- |

37.

Therefore, the market investigation did not confirm that potential entry or expansion on the individual overlap routes would be likely, timely and sufficient to constitute a competitive constraint for the merged entity and would thus compensate for the loss of the rivalry between Ryanair and Aer Lingus on this route.

Conclusion

| 38. | The decision concludes that the transaction would significantly impede effective competition on a number of routes to and from Ireland. |
| --- | --- |

38.

The decision concludes that the transaction would significantly impede effective competition on a number of routes to and from Ireland.

Efficiency defence

| 39. | Ryanair argues that the proposed merger does not raise any competition concerns. However, even if that were not the case, Ryanair puts forward that the merger would not give rise to unilateral effects due to efficiency gains and its particular business model. The claimed efficiencies would result essentially from applying Ryanair's low-cost business model and management skills to Aer Lingus. According to Ryanair, this would enable it to lower Aer Lingus' operating costs towards its own levels. The claimed efficiencies would originate in the fields of aircraft ownership costs, ground operations, staff costs, maintenance costs, airport charges, ancillary sales and distribution efficiencies. |
| --- | --- |

39.

Ryanair argues that the proposed merger does not raise any competition concerns. However, even if that were not the case, Ryanair puts forward that the merger would not give rise to unilateral effects due to efficiency gains and its particular business model. The claimed efficiencies would result essentially from applying Ryanair's low-cost business model and management skills to Aer Lingus. According to Ryanair, this would enable it to lower Aer Lingus' operating costs towards its own levels. The claimed efficiencies would originate in the fields of aircraft ownership costs, ground operations, staff costs, maintenance costs, airport charges, ancillary sales and distribution efficiencies.

| 40. | Ryanair submits that these efficiencies cannot be obtained by any alternative transaction and individually by the two companies to the transaction. It argues that the efficiency gains will be passed on to consumers in terms of reduced fares. It further argues that the claimed cost savings will in no way affect Aer Lingus' quality of service (which would to the contrary be improved). |
| --- | --- |

40.

Ryanair submits that these efficiencies cannot be obtained by any alternative transaction and individually by the two companies to the transaction. It argues that the efficiency gains will be passed on to consumers in terms of reduced fares. It further argues that the claimed cost savings will in no way affect Aer Lingus' quality of service (which would to the contrary be improved).

| 41. | The principles on which the Commission assesses efficiencies are set out in recital 29 of the Merger Regulation (5) and in the Commission's Horizontal Merger Guidelines (6). For the Commission to find that efficiencies counteract a merger's negative impact on consumers, they must be verifiable (i.e. reasoned, quantified and supported by internal studies and documents if necessary), must be likely to benefit consumers and could not have been achieved to a similar extent by means that are less anticompetitive than the proposed concentration (merger specificity). The three conditions — verifiability, merger specificity and consumer benefit — are cumulative. |
| --- | --- |

41.

The principles on which the Commission assesses efficiencies are set out in recital 29 of the Merger Regulation (5) and in the Commission's Horizontal Merger Guidelines (6). For the Commission to find that efficiencies counteract a merger's negative impact on consumers, they must be verifiable (i.e. reasoned, quantified and supported by internal studies and documents if necessary), must be likely to benefit consumers and could not have been achieved to a similar extent by means that are less anticompetitive than the proposed concentration (merger specificity). The three conditions — verifiability, merger specificity and consumer benefit — are cumulative.

| 42. | The decision sets out that Ryanair's efficiency claim is not verifiable because it consists essentially of a general assertion that it can transfer its business model, and in particular the related cost levels, to Aer Lingus without sufficiently taking into account offsetting downgrades in product characteristics and revenue. The decision finds that several of Ryanair's efficiency claims rely on very strong assumptions which cannot be independently verified. Ryanair's efficiency claim, therefore, already fails the first leg of the cumulative conditions set out in the Horizontal Merger Guidelines. For the sake of completeness, the decision also contains an assessment of the merger specificity of Ryanair's efficiency claims and of the potential consumer benefits. |
| --- | --- |

42.

The decision sets out that Ryanair's efficiency claim is not verifiable because it consists essentially of a general assertion that it can transfer its business model, and in particular the related cost levels, to Aer Lingus without sufficiently taking into account offsetting downgrades in product characteristics and revenue. The decision finds that several of Ryanair's efficiency claims rely on very strong assumptions which cannot be independently verified. Ryanair's efficiency claim, therefore, already fails the first leg of the cumulative conditions set out in the Horizontal Merger Guidelines. For the sake of completeness, the decision also contains an assessment of the merger specificity of Ryanair's efficiency claims and of the potential consumer benefits.

| 43. | The decision concludes on efficiencies that Ryanair's claims lack verifiability and are not merger specific. Even if both conditions were met, the efficiencies would affect Aer Lingus' fixed (aircraft operating) costs, which makes it uncertain that they would be passed on to consumers. Finally, the decision refers to the Horizontal Merger Guidelines in arguing that it is highly unlikely that a merger leading to a market position approaching that of a monopoly, or leading to a similar level of market power, can be declared compatible with the common market on the ground that efficiency gains would be sufficient to counteract its potential anti-competitive effects. |
| --- | --- |

43.

The decision concludes on efficiencies that Ryanair's claims lack verifiability and are not merger specific. Even if both conditions were met, the efficiencies would affect Aer Lingus' fixed (aircraft operating) costs, which makes it uncertain that they would be passed on to consumers. Finally, the decision refers to the Horizontal Merger Guidelines in arguing that it is highly unlikely that a merger leading to a market position approaching that of a monopoly, or leading to a similar level of market power, can be declared compatible with the common market on the ground that efficiency gains would be sufficient to counteract its potential anti-competitive effects.

VII.   PROPOSED REMEDIES

| 44. | On 17 April 2007, Ryanair submitted, together with its reply to the Statement of Objections, commitments in order to remove the competition concerns identified in the Statement of Objections (‘Initial Phase II Commitments’). After a State-of-Play meeting with the Commission which was held on 26 April 2007 and in which Ryanair was informed about the Commission's preliminary assessment of the initial Phase II Commitments, Ryanair submitted a modified set of commitments (hereinafter referred to as ‘Final Commitments’) on 3 May 2007 (7). |
| --- | --- |

44.

On 17 April 2007, Ryanair submitted, together with its reply to the Statement of Objections, commitments in order to remove the competition concerns identified in the Statement of Objections (‘Initial Phase II Commitments’). After a State-of-Play meeting with the Commission which was held on 26 April 2007 and in which Ryanair was informed about the Commission's preliminary assessment of the initial Phase II Commitments, Ryanair submitted a modified set of commitments (hereinafter referred to as ‘Final Commitments’) on 3 May 2007 (7).

| 45. | The commitments consist in a so-called ‘access remedy’. Following the model of previous airline cases, Ryanair's commitments mainly aim at removing existing entry barriers for other airlines. They include the following main elements:






  1. | Heathrow slots: Ryanair commits to make available slots for the London-Heathrow route under a so-called ‘leasing arrangement’. According to the text of the Final Commitments, these slots are exclusively reserved for British Airways and Air France (allowing them to each offer [2-6] daily flights in each direction). |
| --- | --- | --- |

45.

The commitments consist in a so-called ‘access remedy’. Following the model of previous airline cases, Ryanair's commitments mainly aim at removing existing entry barriers for other airlines. They include the following main elements:

1.

Heathrow slots: Ryanair commits to make available slots for the London-Heathrow route under a so-called ‘leasing arrangement’. According to the text of the Final Commitments, these slots are exclusively reserved for British Airways and Air France (allowing them to each offer [2-6] daily flights in each direction).

| 2. | Slots for other routes from/to Dublin: Ryanair commits also to make available slots for other overlap routes from and to Dublin, allowing airlines, according to Ryanair, to operate with up to [4-8] aircraft based in Dublin. Ryanair further offers to make available an equivalent number of slots at specific destination airports on the overlap routes, if necessary. |
| --- | --- |

2.

Slots for other routes from/to Dublin: Ryanair commits also to make available slots for other overlap routes from and to Dublin, allowing airlines, according to Ryanair, to operate with up to [4-8] aircraft based in Dublin. Ryanair further offers to make available an equivalent number of slots at specific destination airports on the overlap routes, if necessary.

| 3. | Slots for routes from/to Shannon/Cork: Ryanair commits in its Final Commitments also to make available slots for overlap routes starting at Cork and Shannon if necessary ([6-10] daily slots in Cork and [6-10] daily slots in Shannon and an equivalent number of slots at London/Stansted for flights to London/Stansted plus [0-4] arrival and [0-4] departure [slot/slots] in Cork and Liverpool in order to facilitate entry on the Cork-Manchester/Liverpool route). |
| --- | --- |

3.

Slots for routes from/to Shannon/Cork: Ryanair commits in its Final Commitments also to make available slots for overlap routes starting at Cork and Shannon if necessary ([6-10] daily slots in Cork and [6-10] daily slots in Shannon and an equivalent number of slots at London/Stansted for flights to London/Stansted plus [0-4] arrival and [0-4] departure [slot/slots] in Cork and Liverpool in order to facilitate entry on the Cork-Manchester/Liverpool route).

| 4. | ‘Up-front buyer’: In the ‘Commitments Letter’, Ryanair also offers ‘not to complete the acquisition of Aer Lingus’ before it has found a ‘buyer’ that has committed to taking up the slots for the [4-8] based aircraft operation at Dublin. |
| --- | --- |

4.

‘Up-front buyer’: In the ‘Commitments Letter’, Ryanair also offers ‘not to complete the acquisition of Aer Lingus’ before it has found a ‘buyer’ that has committed to taking up the slots for the [4-8] based aircraft operation at Dublin.

| 5. | Fare/brand-related commitments: Ryanair offers to reduce immediately Aer Lingus' short-haul fares by at least 10 %, to eliminate immediately the fuel surcharges Aer Lingus applies on its long-haul flights, to retain Aer Lingus' brand and to continue to operate Ryanair and Aer Lingus separately. |
| --- | --- |

5.

Fare/brand-related commitments: Ryanair offers to reduce immediately Aer Lingus' short-haul fares by at least 10 %, to eliminate immediately the fuel surcharges Aer Lingus applies on its long-haul flights, to retain Aer Lingus' brand and to continue to operate Ryanair and Aer Lingus separately.

| 6. | ‘Frequency freeze’: Ryanair commits not to increase the number of frequencies on any of the claimed overlap routes ‘in the event of a new entrant to the route’, in excess of the frequencies jointly operated by Ryanair and Aer Lingus on each route for a period of six IATA seasons after completion of the merger. It also commits not to reduce the frequencies on these routes ‘unless a route is or becomes unprofitable’. |
| --- | --- |

6.

‘Frequency freeze’: Ryanair commits not to increase the number of frequencies on any of the claimed overlap routes ‘in the event of a new entrant to the route’, in excess of the frequencies jointly operated by Ryanair and Aer Lingus on each route for a period of six IATA seasons after completion of the merger. It also commits not to reduce the frequencies on these routes ‘unless a route is or becomes unprofitable’.

| 46. | The decision concludes that the proposed commitments fall significantly short of remedying the identified competition problems and are, thus, insufficient to prevent the significant impediment to effective competition on both formal and substantive grounds. The following arguments are developed in the decision:






  — | It is doubtful whether the instrument of a slot remedies is an appropriate remedy for the present transaction. Indeed, Aer Lingus and Ryanair are low-frill airlines, flying to secondary and often to other non-congested airports. Airport congestion is not the main reason why other airlines do not enter Ireland and the slot based remedy does not provide any solution to address the other identified barriers to entry. Aer Lingus is currently the only airline competing with Ryanair on Irish routes on a larger scale, while competitors have confirmed that they do not want to enter into competition with two well-known brands against a very price-aggressive competitor. |
| --- | --- | --- |

46.

The decision concludes that the proposed commitments fall significantly short of remedying the identified competition problems and are, thus, insufficient to prevent the significant impediment to effective competition on both formal and substantive grounds. The following arguments are developed in the decision:

—

It is doubtful whether the instrument of a slot remedies is an appropriate remedy for the present transaction. Indeed, Aer Lingus and Ryanair are low-frill airlines, flying to secondary and often to other non-congested airports. Airport congestion is not the main reason why other airlines do not enter Ireland and the slot based remedy does not provide any solution to address the other identified barriers to entry. Aer Lingus is currently the only airline competing with Ryanair on Irish routes on a larger scale, while competitors have confirmed that they do not want to enter into competition with two well-known brands against a very price-aggressive competitor.

| — | The offered slot remedies are not likely to trigger substantial entry on the overlap routes. Since the remedy only facilitates entry (rather than constituting a business divestiture), there must be some likelihood that entry will take place. However, the market test gave no indications that new entrant could be found apart for some single routes (in particular the Dublin-London/Heathrow route). |
| --- | --- |

—

The offered slot remedies are not likely to trigger substantial entry on the overlap routes. Since the remedy only facilitates entry (rather than constituting a business divestiture), there must be some likelihood that entry will take place. However, the market test gave no indications that new entrant could be found apart for some single routes (in particular the Dublin-London/Heathrow route).

| — | Unclear and contradictory provisions: The content of the present commitment proposal is not clear as there are numerous contradictions and vague or ambiguous formulations which put into question the viability of the commitments as such, since it is doubtful whether the commitments would be at all workable and enforceable. |
| --- | --- |

—

Unclear and contradictory provisions: The content of the present commitment proposal is not clear as there are numerous contradictions and vague or ambiguous formulations which put into question the viability of the commitments as such, since it is doubtful whether the commitments would be at all workable and enforceable.

| — | The scope of the commitments is insufficient. Even if the remedies would trigger entry, the scope of such entry would be far too small to address the parties' competitive overlap. The market test has confirmed that slots for [4-8] aircraft (or [6-10] taking into account London) would not suffice to replace the competitive constraint currently exercised by Aer Lingus. Aer Lingus and Ryanair today operate with 22 and 19 aircraft respectively. Although Aer Lingus does not only serve the overlap routes with its 22 aircraft, the investigation confirmed that [4-8] or [6-10] aircraft would be insufficient to serve all overlap routes from/to Dublin. |
| --- | --- |

—

The scope of the commitments is insufficient. Even if the remedies would trigger entry, the scope of such entry would be far too small to address the parties' competitive overlap. The market test has confirmed that slots for [4-8] aircraft (or [6-10] taking into account London) would not suffice to replace the competitive constraint currently exercised by Aer Lingus. Aer Lingus and Ryanair today operate with 22 and 19 aircraft respectively. Although Aer Lingus does not only serve the overlap routes with its 22 aircraft, the investigation confirmed that [4-8] or [6-10] aircraft would be insufficient to serve all overlap routes from/to Dublin.

| — | Slots at important destination airports are missing from Ryanair's proposal. |
| --- | --- |

—

Slots at important destination airports are missing from Ryanair's proposal.

| — | The commitments do not ensure entry of one single firm which has a business model that can replace the competition eliminated by the merger. |
| --- | --- |

—

The commitments do not ensure entry of one single firm which has a business model that can replace the competition eliminated by the merger.

| — | There are, in addition, significant legal doubts whether Ryanair could legally relinquish Aer Lingus' Heathrow slots because the airline's Articles of Association confer certain veto rights to the Irish government, which would enable it to block the slot transfer. |
| --- | --- |

—

There are, in addition, significant legal doubts whether Ryanair could legally relinquish Aer Lingus' Heathrow slots because the airline's Articles of Association confer certain veto rights to the Irish government, which would enable it to block the slot transfer.

| — | With regard to the various behavioural commitments offered by Ryanair (10 % reduction of Aer Lingus' fares, abolition of fuel surcharges, frequency freeze, maintaining separate brands), the decision notes that they do not directly address any of the identified competition problems. In addition, they raise numerous questions with regard to monitoring and enforceability. They also contain elements that would lessen, rather than strengthen, competition. |
| --- | --- |

—

With regard to the various behavioural commitments offered by Ryanair (10 % reduction of Aer Lingus' fares, abolition of fuel surcharges, frequency freeze, maintaining separate brands), the decision notes that they do not directly address any of the identified competition problems. In addition, they raise numerous questions with regard to monitoring and enforceability. They also contain elements that would lessen, rather than strengthen, competition.

| 47. | Following a State-of-Play meeting and subsequent additional discussions, Ryanair submitted on 1 June 2007, in draft form, a set of revised commitments. This text was provided explicitly in draft form, without signature and without complying with the necessary formal requirements. Ryanair has thus not formally submitted new commitments and the Commission was not obliged to assess them in the decision. Further, the deadline for submitting commitments according to the Implementing Regulation to the Merger Regulation had expired on 3 May 2007. Although the Commission can in exceptional circumstances accept modifications of submitted remedies even when a renewed market test is no longer possible, such commitments must resolve all identified competition problems in a clear-cut fashion. |
| --- | --- |

47.

Following a State-of-Play meeting and subsequent additional discussions, Ryanair submitted on 1 June 2007, in draft form, a set of revised commitments. This text was provided explicitly in draft form, without signature and without complying with the necessary formal requirements. Ryanair has thus not formally submitted new commitments and the Commission was not obliged to assess them in the decision. Further, the deadline for submitting commitments according to the Implementing Regulation to the Merger Regulation had expired on 3 May 2007. Although the Commission can in exceptional circumstances accept modifications of submitted remedies even when a renewed market test is no longer possible, such commitments must resolve all identified competition problems in a clear-cut fashion.

| 48. | However, even if it had been formally submitted, the draft modified commitments clearly would have been insufficient to address all of the identified shortcomings of the previous set of commitments. In particular, the draft modified commitments were still based primarily on slot transfers (i.e. enabling access to airport infrastructure) and did not provide any new elements which would address the other identified barriers to entry and thus enable the Commission to re-evaluate the negative results of the market test as to the likelihood of actual entry. Furthermore, the scope of the guaranteed new entry was still insufficient as the commitments only provided for an up-front new entrant with [6-10] aircraft. The draft also does not provide for the transfer of slots at all relevant destination airports, in particular not for slots at congested airports. Additional unresolved problems included, in particular, the legal uncertainty with respect to the London Heathrow slots and the unspecific criteria for the upfront-buyer. |
| --- | --- |

48.

However, even if it had been formally submitted, the draft modified commitments clearly would have been insufficient to address all of the identified shortcomings of the previous set of commitments. In particular, the draft modified commitments were still based primarily on slot transfers (i.e. enabling access to airport infrastructure) and did not provide any new elements which would address the other identified barriers to entry and thus enable the Commission to re-evaluate the negative results of the market test as to the likelihood of actual entry. Furthermore, the scope of the guaranteed new entry was still insufficient as the commitments only provided for an up-front new entrant with [6-10] aircraft. The draft also does not provide for the transfer of slots at all relevant destination airports, in particular not for slots at congested airports. Additional unresolved problems included, in particular, the legal uncertainty with respect to the London Heathrow slots and the unspecific criteria for the upfront-buyer.

VIII.   CONCLUSION

| 49. | The decision concludes that the notified concentration would significantly impede effective competition in the common market or a substantial part thereof within the meaning of Article 2(3) of the Merger Regulation, in particular as a result of the creation of a dominant position of Ryanair and Aer Lingus on 35 routes from and to Dublin, Shannon and Cork, and the creation or strengthening of a dominant position on 15 other routes from and to Dublin and Cork. The decision thus declares the concentration incompatible with the common market and the EEA Agreement pursuant to Article 8(3) of the Merger Regulation and Article 57 of the EEA Agreement. |
| --- | --- |

49.

The decision concludes that the notified concentration would significantly impede effective competition in the common market or a substantial part thereof within the meaning of Article 2(3) of the Merger Regulation, in particular as a result of the creation of a dominant position of Ryanair and Aer Lingus on 35 routes from and to Dublin, Shannon and Cork, and the creation or strengthening of a dominant position on 15 other routes from and to Dublin and Cork. The decision thus declares the concentration incompatible with the common market and the EEA Agreement pursuant to Article 8(3) of the Merger Regulation and Article 57 of the EEA Agreement.

---

(1)  OJ L 24, 29.1.2004, p. 1.

(2)  See Article 4(1) of the Merger Regulation.

(3)  See e.g. Cases COMP/M.3940 — Lufthansa/Eurowings, COMP/M.3280 — Air France/KLM, COMP/M.3770 — Lufthansa/Swiss.

(4)  The table does not take into account possible inclusion of the ‘dry seats’ (i.e. air tickets sold separately and not as part of the package holidays) offered by some charter airlines on some affected holiday routes. However, as the share of those ‘dry seat’ sales is insignificant, their inclusion would not change the situation.

(5)  See Article 2(1)(b) and Recital 29.

(6)  Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings (OJ C 31, 5.2.2004, p. 5).

(7)  Ryanair had already submitted commitments in Phase I of the investigation on 29 November 2006 (‘Initial Phase I Commitments’), which were subsequently replaced by a revised set of commitments on 14 December 2006 (‘Modified Phase I Commitments’).

---

NOTICES FROM MEMBER STATES

| 20.2.2008 | EN | Official Journal of the European Union | C 47/21 |
| --- | --- | --- | --- |

20.2.2008

EN

Official Journal of the European Union

C 47/21

---

Commission communication in the framework of the implementation of the Directive 2004/22/EC of the European Parliament and of the Council on measuring instruments

(Text with EEA relevance)

(Publication of titles and references of harmonized standards under the directive)

(2008/C 47/06)

| European Standardisation Organisation (1) | Reference and title of the standard
  (and reference document) | Reference of the superseded standard | Date of cessation of presumption of conformity of the superseded standard
  (Note 1) |
| --- | --- | --- | --- |
| CENELEC | EN 50470-1:2006
  Electricity metering equipment (a.c.) — Part 1: General requirements, tests and test conditions — Metering equipment (class indexes A, B and C) | NONE | — |
| CENELEC | EN 50470-2:2006
  Electricity metering equipment (a.c.) — Part 2: Particular requirements — Electromechanical meters for active energy (class indexes A and B) | NONE | — |
| CENELEC | EN 50470-3:2006
  Electricity metering equipment (a.c.) — Part 3: Particular requirements — Static meters for active energy (class indexes A, B and C) | NONE | — |

European Standardisation Organisation (1)

Reference and title of the standard

(and reference document)

Reference of the superseded standard

Date of cessation of presumption of conformity of the superseded standard

(Note 1)

CENELEC

EN 50470-1:2006

Electricity metering equipment (a.c.) — Part 1: General requirements, tests and test conditions — Metering equipment (class indexes A, B and C)

NONE

—

CENELEC

EN 50470-2:2006

Electricity metering equipment (a.c.) — Part 2: Particular requirements — Electromechanical meters for active energy (class indexes A and B)

NONE

—

CENELEC

EN 50470-3:2006

Electricity metering equipment (a.c.) — Part 3: Particular requirements — Static meters for active energy (class indexes A, B and C)

NONE

—

---

(1)  European Standardisation Organisation:

| — | CEN: rue de Stassart/De Stassartstraat 36, B-1050 Brussels, Tel. (32-2) 550 08 11, fax (32-2) 550 08 19 (http://www.cenorm.be) |
| --- | --- |

—

CEN: rue de Stassart/De Stassartstraat 36, B-1050 Brussels, Tel. (32-2) 550 08 11, fax (32-2) 550 08 19 (http://www.cenorm.be)

| — | CENELEC: rue de Stassart/De Stassartstraat 35, B-1050 Brussels, Tel. (32-2) 519 68 71, fax (32-2) 519 69 19 (http://www.cenelec.org) |
| --- | --- |

—

CENELEC: rue de Stassart/De Stassartstraat 35, B-1050 Brussels, Tel. (32-2) 519 68 71, fax (32-2) 519 69 19 (http://www.cenelec.org)

| — | ETSI: 650, route des Lucioles, F-06921 Sophia Antipolis, Tel. (33) 492 94 42 12, fax (33) 493 65 47 16 (http://www.etsi.org). |
| --- | --- |

—

ETSI: 650, route des Lucioles, F-06921 Sophia Antipolis, Tel. (33) 492 94 42 12, fax (33) 493 65 47 16 (http://www.etsi.org).

---

V Announcements

PROCEDURES RELATING TO THE IMPLEMENTATION OF THE COMPETITION POLICY

Commission

| 20.2.2008 | EN | Official Journal of the European Union | C 47/22 |
| --- | --- | --- | --- |

20.2.2008

EN

Official Journal of the European Union

C 47/22

---

United Kingdom Government notice concerning European Parliament and Council Directive 94/22/EC on the conditions for granting and using authorisations for the prospection, exploration and production of hydrocarbons

(Text with EEA relevance)

(2008/C 47/07)

Announcement of United Kingdom 25th offshore oil and gas licensing round

Department for Business, Enterprise and Regulatory Reform

The Petroleum Act 1998

Offshore Licensing Round

| 1. | The Secretary of State for Business, Enterprise and Regulatory Reform invites interested persons to apply for Seaward Production Licences in respect of certain acreage on the United Kingdom Continental Shelf. |
| --- | --- |

1.

The Secretary of State for Business, Enterprise and Regulatory Reform invites interested persons to apply for Seaward Production Licences in respect of certain acreage on the United Kingdom Continental Shelf.

| 2. | This invitation is in respect of those blocks and parts of blocks that are shown on maps deposited at the Department for Business, Enterprise and Regulatory Reform (BERR), where they can be viewed by prior appointment (tel. (44-207) 215 50 32) between 9.15 and 16.45, Monday to Friday during the period of this Notice. |
| --- | --- |

2.

This invitation is in respect of those blocks and parts of blocks that are shown on maps deposited at the Department for Business, Enterprise and Regulatory Reform (BERR), where they can be viewed by prior appointment (tel. (44-207) 215 50 32) between 9.15 and 16.45, Monday to Friday during the period of this Notice.

| 3. | Full details of the offer, including lists and maps of the acreage on offer and guidance about licences, the terms which those licences will include, and how to apply, are available on the Energy Development Unit (EDU) website (see below). |
| --- | --- |

3.

Full details of the offer, including lists and maps of the acreage on offer and guidance about licences, the terms which those licences will include, and how to apply, are available on the Energy Development Unit (EDU) website (see below).

| 4. | All applications will be judged in accordance with the terms of the Hydrocarbons Licensing Directive Regulations 1995 (S.I. 1995 No 1434) and against a background of the continuing need for expeditious, thorough, efficient and safe exploration to identify the United Kingdom's oil and gas resources with due regard to environmental considerations. |
| --- | --- |

4.

All applications will be judged in accordance with the terms of the Hydrocarbons Licensing Directive Regulations 1995 (S.I. 1995 No 1434) and against a background of the continuing need for expeditious, thorough, efficient and safe exploration to identify the United Kingdom's oil and gas resources with due regard to environmental considerations.

Traditional and Frontier Applications

| 5. | Applications will be judged on the basis of the following criteria:






  (a) | the financial viability of the applicant and its financial capacity to carry out the activities that would be permitted under the licence during the initial term including the work programme submitted for evaluating the full potential of the area within the block or blocks applied for; |
| --- | --- | --- |

5.

Applications will be judged on the basis of the following criteria:

(a)

the financial viability of the applicant and its financial capacity to carry out the activities that would be permitted under the licence during the initial term including the work programme submitted for evaluating the full potential of the area within the block or blocks applied for;

| (b) | the technical capability of the applicant to carry out activities that would be permitted under the licence during the initial term including the identification of hydrocarbon prospects within the block or blocks applied for. The technical capability will be assessed in part upon the quality of analysis related to the block or blocks applied for; |
| --- | --- |

(b)

the technical capability of the applicant to carry out activities that would be permitted under the licence during the initial term including the identification of hydrocarbon prospects within the block or blocks applied for. The technical capability will be assessed in part upon the quality of analysis related to the block or blocks applied for;

| (c) | the way in which the applicant proposes to carry out the activities that would be permitted under the licence including the quality of the work programme submitted for evaluating the full potential of the area applied for; |
| --- | --- |

(c)

the way in which the applicant proposes to carry out the activities that would be permitted under the licence including the quality of the work programme submitted for evaluating the full potential of the area applied for;

| (d) | where the applicant holds or has held a licence granted under or treated as having been granted under the Petroleum Act 1998, any lack of efficiency and responsibility displayed by the applicant in operations under that licence. |
| --- | --- |

(d)

where the applicant holds or has held a licence granted under or treated as having been granted under the Petroleum Act 1998, any lack of efficiency and responsibility displayed by the applicant in operations under that licence.

| 6. | The proposed operator within each applicant group (including any company that is the sole applicant) must submit a statement of its general environmental policy for the conduct of licensed activities in seaward areas. |
| --- | --- |

6.

The proposed operator within each applicant group (including any company that is the sole applicant) must submit a statement of its general environmental policy for the conduct of licensed activities in seaward areas.

| 7. | For Traditional and Frontier applications the Secretary of State will not award a licence unless he is prepared to approve the applicant's choice of operator at the same time. Before approving an operator, the Secretary of State must be satisfied that the nominee will be competent to plan and manage drilling operations, in terms of the numbers, experience and training of its staff, the proposed procedures and methodologies, the design of its command structure, interfaces with contractors and overall corporate strategy. In considering a proposed operator, the Secretary of State will take into account both new information presented in the application and the nominee's record as an operator, both within the United Kingdom and abroad. |
| --- | --- |

7.

For Traditional and Frontier applications the Secretary of State will not award a licence unless he is prepared to approve the applicant's choice of operator at the same time. Before approving an operator, the Secretary of State must be satisfied that the nominee will be competent to plan and manage drilling operations, in terms of the numbers, experience and training of its staff, the proposed procedures and methodologies, the design of its command structure, interfaces with contractors and overall corporate strategy. In considering a proposed operator, the Secretary of State will take into account both new information presented in the application and the nominee's record as an operator, both within the United Kingdom and abroad.

Promote Applications

| 8. | Applications will be judged on the basis of the following criteria:






  (a) | the financial viability of the applicant; |
| --- | --- | --- |

8.

Applications will be judged on the basis of the following criteria:

(a)

the financial viability of the applicant;

| (b) | the technical capability of the applicant to carry out activities that would be permitted under the licence during the first two years of the licence including the identification of hydrocarbon prospects within the block or blocks applied for. The technical capability will be assessed in part upon the quality of analysis related to the block or blocks applied for; |
| --- | --- |

(b)

the technical capability of the applicant to carry out activities that would be permitted under the licence during the first two years of the licence including the identification of hydrocarbon prospects within the block or blocks applied for. The technical capability will be assessed in part upon the quality of analysis related to the block or blocks applied for;

| (c) | the quality of the applicant's approach to securing the additional financial and technical resources that would be needed to complete the substantive work programme contemplated in the second two years of the Initial Term; |
| --- | --- |

(c)

the quality of the applicant's approach to securing the additional financial and technical resources that would be needed to complete the substantive work programme contemplated in the second two years of the Initial Term;

| (d) | where the applicant holds or has held a licence granted under or treated as having been granted under the Petroleum Act 1998, any lack of efficiency and responsibility displayed by the applicant in operations under that licence. |
| --- | --- |

(d)

where the applicant holds or has held a licence granted under or treated as having been granted under the Petroleum Act 1998, any lack of efficiency and responsibility displayed by the applicant in operations under that licence.

| 9. | Promote Licences will expire after two years if the Licensee has not satisfied BERR of its technical and financial capacity to complete the Initial Term Work Programme which will include a firm commitment at that time to the drilling of at least one well, or to conduct an equivalent agreed substantive activity. The Initial Term Work Programme must be carried out within four years. |
| --- | --- |

9.

Promote Licences will expire after two years if the Licensee has not satisfied BERR of its technical and financial capacity to complete the Initial Term Work Programme which will include a firm commitment at that time to the drilling of at least one well, or to conduct an equivalent agreed substantive activity. The Initial Term Work Programme must be carried out within four years.

| 10. | Further guidance detailing the above which accompany this offer can be viewed on the Energy Development Unit (EDU) website: http://www.og.berr.gov.uk/ |
| --- | --- |

10.

Further guidance detailing the above which accompany this offer can be viewed on the Energy Development Unit (EDU) website: http://www.og.berr.gov.uk/

Licences

| 11. | Where the Secretary of State offers a licence pursuant to this invitation, the offer will be made within twelve months of the date of this Notice. |
| --- | --- |

11.

Where the Secretary of State offers a licence pursuant to this invitation, the offer will be made within twelve months of the date of this Notice.

| 12. | The Secretary of State accepts no liability for any costs incurred by the applicant in considering or making its application. |
| --- | --- |

12.

The Secretary of State accepts no liability for any costs incurred by the applicant in considering or making its application.

Environmental Assessments

| 13. | BERR has conducted a Strategic Environmental Assessment of all of the area to be offered to the standard required in European Parliament and Council Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment. The finding of the assessment can be found at the Energy Development Unit (EDU) website: http://www.og.berr.gov.uk/ |
| --- | --- |

13.

BERR has conducted a Strategic Environmental Assessment of all of the area to be offered to the standard required in European Parliament and Council Directive 2001/42/EC on the assessment of the effects of certain plans and programmes on the environment. The finding of the assessment can be found at the Energy Development Unit (EDU) website: http://www.og.berr.gov.uk/

| 14. | Licences pursuant to this invitation will only be offered if either (a) there is no significant effect on a Special Conservation Area (‘SAC’) or Special Protection Area (‘SPA’), or (b) an appropriate assessment under the Habitats and Wild Birds Directives concludes that there will be no adverse effect on such SACs or SPAs. |
| --- | --- |

14.

Licences pursuant to this invitation will only be offered if either (a) there is no significant effect on a Special Conservation Area (‘SAC’) or Special Protection Area (‘SPA’), or (b) an appropriate assessment under the Habitats and Wild Birds Directives concludes that there will be no adverse effect on such SACs or SPAs.

| 15. | Licence Administration: Energy Development Unit (EDU), Department for Business, Enterprise and Regulatory Reform, 1 Victoria Street, London SW1H 0ET, United Kingdom (tel. (44-207) 215 50 32, fax (44-207) 215 50 70).
  Energy Development Unit (EDU) website: http://www.og.berr.gov.uk/ |
| --- | --- |

15.

Licence Administration: Energy Development Unit (EDU), Department for Business, Enterprise and Regulatory Reform, 1 Victoria Street, London SW1H 0ET, United Kingdom (tel. (44-207) 215 50 32, fax (44-207) 215 50 70).

Energy Development Unit (EDU) website: http://www.og.berr.gov.uk/

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Corrigenda

| 20.2.2008 | EN | Official Journal of the European Union | C 47/25 |
| --- | --- | --- | --- |

20.2.2008

EN

Official Journal of the European Union

C 47/25

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Corrigendum to Commission communication in the framework of the implementation of the Directive 2004/22/EC of the European Parliament and of the Council on measuring instruments

(
  Official Journal of the European Union C 29 of 1 February 2008
  )

(2008/C 47/08)

The publication of the communication has been cancelled.

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