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.