CELEX: 62007TO0411
Language: en
Date: 2008-03-18 00:00:00
Title: Order of the President of the Court of First Instance of 18 March 2008.#Aer Lingus Group plc v Commission of the European Communities.#Interim measures - Control of concentrations - Prohibition of a notified operation - Article 8(4) and (5) of Regulation (EC) No 139/2004 - Application for an order requiring the Commission to take measures against the other party to the prohibited concentration - Measure incompatible with the distribution of powers between institutions - Powers of the Commission - Order addressed to an intervener - Application for suspension of operation - Admissibility - Prima facie case - Urgency - Serious and irreparable damage - Occurrence of damage dependent on future, uncertain events - Insufficient reasons - Weighing of all the interests involved.#Case T-411/07 R.

Case T-411/07 R
      Aer Lingus Group plc
      v
      Commission of the European Communities
      (Interim measures – Control of concentrations – Decision declaring a concentration to be incompatible with the common market – Article 8(4) and (5) of Regulation (EC) No 139/2004 – Application for suspension of operation and for interim relief – Measure incompatible with the distribution of powers between institutions – Powers of the Commission – Interim measures addressed to an intervener – Application for suspension of operation – Admissibility – No prima facie case – Lack of urgency – Absence of serious and irreparable damage – Damage dependent on future, uncertain events – Insufficient reasons – Weighing of all the interests involved)
      Summary of the Order
      1.      Applications for interim measures – Suspension of operation of a measure – Interim measures – Conditions for granting – Provisional
            nature of the measure
      (Arts 242 EC and 243 EC; Rules of Procedure of the Court of First Instance, Art. 104(2))
      2.      Applications for interim measures – Suspension of operation of a measure – Conditions for granting – Interest of the applicant
            in obtaining the suspension sought
      (Art. 242 EC; Rules of Procedure of the Court of First Instance, Art. 104(2))
      3.      Applications for interim measures – Interim measures – Measures incompatible with the distribution of powers between institutions
      (Arts 233 EC and 243 EC; Council Regulation No 139/2004, Art. 8(4) and (5))
      4.      Applications for interim measure – Conditions governing admissibility – Application – Formal requirements
      (Art. 243 EC; Rules of Procedure of the Court of First Instance, Art. 104(2))
      5.      Applications for interim measures – Jurisdiction of the judge hearing the application for interim relief – Imposition of orders
            addressed to third parties – Limits
      (Art. 243 EC)
      6.      Competition – Concentrations – Powers of the Commission – Adoption of measures against the parties to an unlawful concentration
            – Conditions – Implementation of the concentration
      (Arts 81 EC and 82 EC; Council Regulations No 1/2003, Art. 7(1), and No 139/2004, Arts 3, 7 and 8(4) and (5))
      7.      Applications for interim measures – Suspension of operation of a measure – Interim measures – Conditions for granting – Urgency
            – Serious and irreparable damage
      (Arts 242 EC and 243 EC; Rules of Procedure of the Court of First Instance, Art. 104(2))
      1.      According to Article 107(4) of the Rules of Procedure of the Court of First Instance, an order prescribing interim measures
         may have only an interim effect and is without prejudice to the decision on the substance of the case by the Court of First
         Instance. It follows that, in principle, the duration of the effects of such an order cannot extend beyond that of the main
         proceedings. 
      
      (see para. 45)
      2.      An application for suspension of operation of a negative administrative decision cannot be envisaged, since the grant of such
         suspension could not have the effect of changing the applicant’s position. As it cannot be of any interest to the applicant,
         such an application must be rejected, except to the extent to which suspension might be necessary for the purposes of adopting
         other interim measures requested by the applicant, should the judge dealing with the application for interim measures consider
         them to be admissible and well founded.
      
      (see paras 46-48)
      3.      In principle, the judge dealing with an application for interim measures cannot adopt an interim measure which, were it to
         be ordered, would constitute an interference with the exercise of the powers of another institution which would be incompatible
         with the distribution of powers between the various Community institutions as intended by the authors of the Treaty.
      
      Such is the case, with the consequent need for it to be rejected as being inadmissible, with an application for interim measures
         seeking to require the Commission to apply in a particular manner Article 8(4) and (5) of Regulation No 139/2004 on the control
         of concentrations between undertakings by adopting certain measures against the other party to a prohibited concentration.
         Were it to be decided in the judgment in the main application that the Commission has a power to order the measures set out
         in Article 8(4) and (5) of Regulation No 139/2004, it would be for the Commission, should it consider it necessary in the
         context of the powers of control accorded to it in the field of concentrations, to take the necessary measures to comply with
         the judgment, in accordance with Article 233 EC. Accordingly, should the judge dealing with the application for interim measures
         grant this request, this would amount to an injunction addressed to the Commission to draw precise inferences from the annulment
         decision, and consequently to ordering a measure which would exceed the Court’s powers in the main action. Under the system
         for the division of powers established under the Treaty and by Regulation No 139/2004, however, it is for the Commission,
         if it considers it necessary in the context of the powers of control accorded to it in the field of concentrations, and in
         particular by Article 8(4) and (5) of Regulation No 139/2004, to adopt the restorative measures which it deems appropriate.
         
      
      (see paras 49-51)
      4.      An application for interim measures pursuant to Article 243 EC cannot be vague and imprecise. However, in cases in which the
         content of the measures sought by the applicant is sufficiently clear from the rest of the application, the judge hearing
         the application may conclude that the request is not vague and imprecise in nature and may thus consider it admissible. 
      
      (see paras 52 and 53)
      5.      With regard to applications for interim measures, Article 243 EC states clearly that ‘the Court of Justice may in any cases
         before it prescribe any necessary interim measures’. Such broad wording is obviously intended to grant sufficient powers to
         the judge hearing an application to prescribe any measure which he deems necessary to guarantee the full effectiveness of
         the definitive future decision, in order to ensure that there is no lacuna in the legal protection provided by the Court of
         Justice. 
      
      In order to ensure the full effectiveness of Article 243 EC, therefore, it cannot be ruled out that the judge hearing the
         application may impose orders directly on third parties, if necessary, as the wide powers of the judge hearing such an application
         are limited only, in so far as an impact on the rights and interests of third parties is concerned, in cases where such rights
         and interests may be seriously affected. Such broad discretion should, in this respect, be exercised with due regard to the
         procedural rights, and in particular the right to be heard, of the addressees of the interim measures and of parties directly
         affected by those measures. When deciding whether to grant the interim measures applied for in this type of case, the judge
         hearing the application will also have due regard to both the strength of the prima facie case and the imminence of serious and irreparable harm in the specific case. Even where a third party has not had an opportunity
         to be heard in the context of proceedings for interim measures, it cannot be excluded that interim measures might be imposed
         on that party, in exceptional circumstances and bearing in mind the temporary nature of such measures, if it appears that,
         without such measures, the applicant would be exposed to a situation liable to endanger its very existence. The judge hearing
         the application carries out such assessments when balancing the various interests at stake.
      
      (see paras 56, 59)
      6.      The Commission does not err in applying the provisions of Article 8(4) and(5) of Regulation No 139/2004 on the control of
         concentrations between undertakings, which authorise it to take measures against the parties to a prohibited concentration
         which has already been carried out where, after having declared incompatible with the common market a projected concentration
         providing for the acquisition of the entire capital of an undertaking, it considers that it lacks the power to prevent the
         acquiring undertaking from exercising voting rights arising from a minority shareholding which it has finally acquired in
         so far as it is not in a position to exercise de jure or de facto control over the undertaking concerned by means of that shareholding. 
      
      While it is true that the term ‘implemented’ in the English version may, in principle, leave room for confusion as to the
         precise scope of those provisions in view of the fact that the definition of the term ‘implementation’ may encompass both
         ‘the fact of having accomplished some aim’ and ‘the carrying into effect’, the manner in which that expression is rendered
         in the French, German and Italian versions, the comparison of the French version with other Community texts in which the term
         ‘implementation’ is clearly meant to indicate ‘carrying into effect’ rather than ‘the act of accomplishing some aim’, and
         the fact that the Commission may, under Article 8(4) of Regulation No 139/2004, require the undertakings concerned to ‘dissolve
         the concentration’, indicate, however, that, prima facie, the definition of ‘implementation’ envisaged by those provisions involves the full implementation of the concentration,
         as defined in Article 3 of Regulation No 139/2004, and thus the acquisition of control.
      
      That conclusion cannot be brought into question by any alleged practice on the Commission’s part by which the latter treats
         partial implementation, even as regards steps falling short of transfer of control, as being precluded by Article 7(1) of
         Regulation No 139/2004, under which a concentration with a Community dimension may not be implemented until it has been declared
         compatible with the common market, and indicates to parties that they should refrain from taking such steps. First, as the
         interpretation of Community law is a prerogative of the Court of Justice and not of the Commission, the Commission’s practice,
         albeit influential and important in determining whether any legitimate expectations may be justified, is not conclusive in
         that regard. Second, even if Article 7(1) of Regulation No 139/2004 were to be interpreted as prohibiting only a change of
         control pending the Commission’s review, and not steps falling short of change of control, such as the exercise of voting
         rights arising from minority shareholdings, taking into account the time-limit within which the Commission must review a notified
         concentration and the combinations of factors which might confer control in any given case, it would remain legitimate for
         the Commission to request the parties not to take any action which might lead to a change of control.
      
      Finally, this interpretation of Article 8(4) and (5) of Regulation No 139/2004, in conjunction with the prohibition under
         Article 21(3) thereof of Member States applying their national competition legislation to any concentration having a Community
         dimension, does not prima facie give rise to a lacuna which is incompatible with the aim of Regulation No 139/2004. In so far as the remaining minority shareholding
         is no longer linked to an acquisition of control, ceases to be part of a ‘concentration’ and lies outside the scope of Regulation
         No 139/2004, Article 21 thereof does not prima facie in principle, under those circumstances, prevent the application by national competition authorities and national courts of
         their national legislation on competition. Furthermore, whilst a minority shareholding of the type in question cannot, prima facie, be regulated under Regulation No 139/2004, it might be envisaged that the Treaty provisions on competition, and in particular
         Articles 81 EC and 82 EC, may be applied by the Commission to the conduct of the undertakings involved.
      
      (see paras 89-92, 94, 98, 100-101, 103)
      7.      The urgency of an application for interim relief must be assessed in the light of the need for an interlocutory order in order
         to avoid serious and irreparable damage to the party seeking the relief. It is for that party to prove that it cannot await
         the outcome of the main proceedings without suffering damage of that kind.
      
      Where damage depends on the occurrence of a number of factors, it is enough for that damage to be foreseeable with a sufficient
         degree of probability. However, the party seeking the interim relief is still required to prove the facts which are deemed
         to show the probability of serious and irreparable damage. In order to be able to determine whether the damage feared is serious
         and irreparable and therefore provides grounds for ordering interim measures, the judge hearing the application must have
         hard evidence allowing him to determine the precise consequences which the absence of the measures applied for would in all
         probability entail for each of the parties concerned.
      
      The claim by the party seeking interim relief that the judge hearing the application should apply the ‘precautionary principle’
         and is entitled to apply ‘protective measures’ without having to await proof of the reality of the risk alleged cannot therefore
         be entertained.
      
      (see paras 116-119)
ORDER OF THE PRESIDENT OF THE COURT OF FIRST INSTANCE
      18 March 2008 (*)
      
      (Interim measures – Control of concentrations – Prohibition of a notified operation – Article 8(4) and (5) of Regulation (EC) No 139/2004 – Application for an order requiring the Commission to take measures against the other party to the prohibited concentration
         – Measure incompatible with the distribution of powers between institutions – Powers of the Commission – Order addressed to an intervener – Application for suspension of operation – Admissibility – Prima facie case – Urgency – Serious and irreparable damage – Occurrence of damage dependent on future, uncertain events – Insufficient reasons – Weighing of all the interests involved)
      
      In Case T-411/07 R,
      Aer Lingus Group plc, established in Dublin (Ireland), represented by A. Burnside, Solicitor, and B. van de Walle de Ghelcke and T. Snels, lawyers,
      
      applicant,
      v
      Commission of the European Communities, represented by X. Lewis, E. Gippini Fournier and S. Noë, acting as Agents,
      
      defendant,
      supported by
      Ryanair Holdings plc, established in Dublin (Ireland), represented by J. Swift, QC, V. Power, A. McCarthy and D.W. Hull, Solicitors, and G.M. Berrisch,
         lawyer,
      
      intervener,
      APPLICATION for, first, an order requiring the Commission to adopt certain measures concerning Ryanair Holdings plc’s shareholding
         in the applicant, second, alternatively, any order to similar effect against the Commission or Ryanair Holdings plc, and,
         third, suspension of the operation of the Commission Decision of 11 October 2007 C(2007) 4600 final rejecting the applicant’s
         request that proceedings be opened under Article 8(4) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control
         of concentrations between undertakings (OJ 2004 L 24, p. 1) and that interim measures be adopted under Article 8(5) of that
         regulation,
      
      THE PRESIDENT OF THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES,
      makes the following
      Order
       Legal context
      1        Under Article 3 of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings
         (OJ 2004 L 24, p. 1) :
      
      ‘1.      A concentration shall be deemed to arise where a change of control on a lasting basis results from:
      (a)      the merger of two or more previously independent undertakings or parts of undertakings, or
      (b)      the acquisition, by one or more persons already controlling at least one undertaking, or by one or more undertakings, whether
         by purchase of securities or assets, by contract or by any other means, of direct or indirect control of the whole or parts
         of one or more other undertakings.
      
      2.      Control shall be constituted by rights, contracts or any other means which, either separately or in combination and having
         regard to the considerations of fact or law involved, confer the possibility of exercising decisive influence on an undertaking,
         in particular by:
      
      (a)      ownership or the right to use all or part of the assets of an undertaking;
      (b)      rights or contracts which confer decisive influence on the composition, voting or decisions of the organs of an undertaking.
      3.      Control is acquired by persons or undertakings which:
      (a)      are holders of the rights or entitled to rights under the contracts concerned; or
      (b)      while not being holders of such rights or entitled to rights under such contracts, have the power to exercise the rights deriving
         therefrom.
      
      …’
      2        Article 8 of Regulation No 139/2004 provides:
      
      ‘…
      4.      Where the Commission finds that a concentration:
      (a)      has already been implemented and that concentration has been declared incompatible with the common market, or
      (b)      has been implemented in contravention of a condition attached to a decision taken under paragraph 2, which has found that,
         in the absence of the condition, the concentration would fulfil the criterion laid down in Article 2(3) or, in the cases referred
         to in Article 2(4), would not fulfil the criteria laid down in Article 81(3) of the Treaty,
      
      the Commission may:
      –        require the undertakings concerned to dissolve the concentration, in particular through the dissolution of the merger or the
         disposal of all the shares or assets acquired, so as to restore the situation prevailing prior to the implementation of the
         concentration; in circumstances where restoration of the situation prevailing before the implementation of the concentration
         is not possible through dissolution of the concentration, the Commission may take any other measure appropriate to achieve
         such restoration as far as possible,
      
      –        order any other appropriate measure to ensure that the undertakings concerned dissolve the concentration or take other restorative
         measures as required in its decision.
      
      In cases falling within point (a) of the first subparagraph, the measures referred to in that subparagraph may be imposed
         either in a decision pursuant to paragraph 3 or by separate decision.
      
      5.      The Commission may take interim measures appropriate to restore or maintain conditions of effective competition where a concentration:
      (a)      has been implemented in contravention of Article 7, and a decision as to the compatibility of the concentration with the common
         market has not yet been taken;
      
      (b)      has been implemented in contravention of a condition attached to a decision under Article 6(1)(b) or paragraph 2 of this Article;
      (c)      has already been implemented and is declared incompatible with the common market.’
       Facts
      3        The applicant, Aer Lingus Group plc (‘the applicant’ or ‘Aer Lingus’), is a public limited company and the non-trading holding
         company of Aer Lingus Limited, a low-cost, low-fares international airline based in Ireland, providing scheduled air transportation
         services to and from Dublin, Cork and Shannon airports. Following its privatisation in 2006 by the Irish Government, which
         retained a shareholding of 25.35%, Aer Lingus shares were admitted to trading on 2 October 2006.
      
      4        On 23 October 2006, Ryanair Holdings plc (‘Ryanair’), which had previously acquired, between 27 September and 5 October 2006,
         through its wholly-owned subsidiary Coinside Limited, a 19.21% stake in Aer Lingus, launched a public bid for the entire share
         capital of Aer Lingus.
      
      5        On 30 October 2006, Ryanair lodged with the Commission a notification of a proposed concentration pursuant to Article 4 of
         Regulation No 139/2004 relating to its projected acquisition of Aer Lingus.
      
      6        During the bid period, Ryanair acquired further shares in Aer Lingus and, by 28 November 2006, held 25.17% of the share capital
         in Aer Lingus.
      
      7        On 20 December 2006 the Commission adopted a decision under Article 6(1)(c) of Regulation No 139/2004 (‘the Regulation’) initiating
         phase II proceedings. In this decision the Commission considered that the separate acquisitions of shares referred to above
         and the public bid launched by Ryanair constituted a single concentration for the purposes of Article 3 of the Regulation.
      
      8        On 27 June 2007, the Commission adopted Decision C(2007) 3104 declaring the notified concentration to be incompatible with
         the common market (‘the Prohibition Decision’), pursuant to Article 8(3) of the Regulation. The Commission concluded 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 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.
      
      9        By application lodged with the Registry of the Court of First Instance on 10 September 2007, registered under number T-342/07,
         Ryanair brought an action for annulment of the Prohibition Decision. 
      
      10      Following the Prohibition Decision, Ryanair acquired a further 4.3% of the share capital of Aer Lingus, bringing its total
         shareholding to 29.4%.
      
      11      During the proceedings before the Commission prior to the Prohibition Decision, Aer Lingus submitted that the Commission should
         take a decision under Article 8(4) of the Regulation requiring Ryanair to divest itself of its minority stake in Aer Lingus
         should the Commission prohibit the concentration.
      
      12      On 27 June 2007, the Deputy Director General of the Directorate-General for Competition addressed a letter to the applicant
         indicating that, in the opinion of the services in charge of Merger Control, the Commission did not have the power under Article
         8(4) of the Regulation to order Ryanair to divest itself of its minority shareholding, insofar as there was no indication
         that, with 25.22% of Aer Lingus shares, Ryanair would be in a position to exercise de jure or de facto control over Aer Lingus within the terms of Article 3(2) of the Regulation. For the same reasons, the letter stated that
         the Commission would lack the power to adopt interim measures under Article 8(5) of the Regulation.
      
      13      On 17 August 2007, Aer Lingus addressed to the Commission a request that it open proceedings against Ryanair under Article
         8(4) of the Regulation and that it adopt interim measures under Article 8(5) thereof to prevent Ryanair from exercising its
         voting rights in Aer Lingus, or, alternatively, to state formally that the Commission does not have the power to adopt such
         measures. In addition, Aer Lingus requested that the Commission explicitly take a position on the interpretation of Article
         21 of the Regulation.
      
      14      On 11 October 2007, the Commission adopted Decision C(2007) 4600 final rejecting Aer Lingus’ request (‘the Contested Decision’).
      
       The Contested Decision
      15      In the Contested Decision, the Commission took the view that, pursuant to Article 3 of the Regulation, a concentration arises
         only where an undertaking acquires control, control being defined as the possibility of exercising decisive influence. As
         to Article 8(4) of the Regulation, the Commission recalled that this provision allows it, where a concentration has already
         been implemented, to require the undertakings concerned to dissolve the concentration, in particular through the disposal
         of all the shares or assets acquired, so as to restore the situation prevailing prior to the implementation of the concentration.
      
      16      However, the Commission found that the concentration assessed in the present case had not been implemented, insofar as Ryanair
         had not acquired control of Aer Lingus. The transactions that were carried out during the Commission’s proceedings could therefore
         not be considered to constitute implementation of the notified concentration.
      
      17      In particular, the Commission underlined that the minority stake held by Ryanair did not grant it, de jure or de facto, control of Aer Lingus within the meaning of Article 3(2) of the Regulation. The Commission added that, even though minority
         shareholdings may in certain circumstances lead to a finding of control, there were no indications that such circumstances
         were present in this case. In fact, according to the information available to the Commission, Ryanair’s rights as a minority
         shareholder (in particular the right to block so-called ‘special resolutions’ under Irish company law) are associated exclusively
         with rights related to the protection of minority shareholders and do not confer control upon Aer Lingus. Furthermore, the
         Commission pointed out that Aer Lingus itself did not claim that the minority stake acquired would lead to control by Ryanair
         over Aer Lingus.
      
      18      Finally, the Commission stated that the present case differed from the situation in past cases where Article 8(4) had been
         applied, such as in the Commission Decision of 30 January 2002 setting out measures to restore conditions of effective competition
         pursuant to Article 8(4) of Council Regulation (EEC) No 4064/89 (Case COMP/M.2416 – Tetra Laval/Sidel, OJ 2004 L 38, p. 1, ‘the Tetra Laval/Sidel Case’) and in the Commission Decision of 30 January 2002 requiring undertakings to be separated pursuant to Article 8(4)
         of Council Regulation (EEC) No 4064/89 (Case COMP/M.2283 – Schneider/Legrand, OJ 2004 L 101, p. 134, ‘the Schneider/Legrand Case’). In fact, in those cases, by contrast to the present situation, an acquisition had already been successfully completed
         and the acquirer had acquired control of the target.
      
      19      As concerns Aer Lingus’ request that the Commission adopt interim measures pursuant to Article 8(5) of the Regulation, the
         Commission noted that the wording of this provision referred similarly to a situation where a concentration ‘has already been
         implemented and is declared incompatible with the common market’ and concluded therefore that it did not have the power to
         take interim measures in that case.
      
      20      In relation to Aer Lingus’ request that the Commission adopt a position on the interpretation of Article 21 of the Regulation,
         the Commission noted that such a request amounted, in effect, to a request for a legally binding interpretation of a provision
         of Community law to be addressed to Member States, and that the Commission manifestly lacks the power to adopt such acts.
         
      
       Procedure
      21      By application lodged at the Court Registry on 19 November 2007, registered under number T-411/07, the applicant brought an
         action for annulment of the Contested Decision on the basis of the fourth paragraph of Article 230 EC.
      
      22      By separate document lodged at the Registry on the same day, registered under number T-411/07 R, the applicant applied for
         the adoption of interim measures and for the suspension of the operation of the Contested Decision on the basis of Articles
         242 EC and 243 EC, and of Article 104 of the Rules of Procedure of the Court of First Instance.
      
      23      On 12 December 2007 the Commission submitted its written observations on this application for interim measures.
      
      24      By a document lodged at the Registry on 27 November 2007, Ryanair applied for leave to intervene in support of the form of
         order sought by the Commission.
      
      25      By a document lodged at the Registry on 4 December 2007, Aer Lingus raised no objections to Ryanair’s application for leave
         to intervene and stated that it made no confidentiality claims in relation to any of the documents which it had lodged with
         the Court in Case T-411/07 R.
      
      26      By a document lodged at the Registry on 5 December 2007, the Commission raised no objections to Ryanair’s application for
         leave to intervene. 
      
      27      By order of the President of the Court of First Instance of 7 December 2007, Ryanair was granted leave to intervene in support
         of the form of order sought by the Commission and to submit a statement in intervention, which it did on 19 December 2007.
      
      28      A hearing was held on 24 January 2008.
      
       Forms of order sought
      29      The applicant claims that the President of the Court of First Instance should:
      
      –        order the Commission to require Ryanair, until judgment in the main application or in Case T-342/07, whichever is the later:
      –        not to exercise the voting rights or any other rights attached or deriving from the shareholding held by Ryanair in Aer Lingus
         (including, without limitation, attendance or voting at meetings, or the requisition of general meetings) except in accordance
         with a derogation granted by the Commission;
      
      –        to vest the shares in question in a trustee and not to dispose of any of them except to a buyer, and in accordance with a
         procedure, approved by the Commission;
      
      –        not to increase further its shareholding in Aer Lingus;
      –        alternatively, adopt any order to similar effect against the Commission and/or Ryanair as the President may think fit;
      –        suspend the Commission’s decision of 11 October 2007 C(2007) 4600 final rejecting the applicant’s request that proceedings
         be opened under Article 8(4) of the Regulation, in so far as necessary;
      
      –        order the Commission to pay the costs. 
      30      The Commission contends that the President of the Court should:
      
      –        dismiss the application for suspension;
      –        dismiss the application for interim measures;
      –        order the applicant to pay the costs.
      31      Ryanair contends that the President of the Court should:
      
      –        dismiss the application;
      –        order the applicant to pay the costs associated with the intervention.
       Law
      32      Under Articles 242 EC and 243 EC, in conjunction with Article 225(1) EC, the Court of First Instance may, if it considers
         that circumstances so require, order that application of the act contested before it be suspended or prescribe any necessary
         interim measures.
      
      33      Article 104(2) of the Rules of Procedure of the Court of First Instance provides that an application for interim measures
         must state the subject-matter of the proceedings, the circumstances giving rise to urgency, and the pleas of fact and law
         establishing a prima facie case for the interim measures applied for. Thus, the judge hearing the application may order suspension of operation of an
         act and/or interim measures if it is established that such an order is justified, prima facie, in fact and in law and that it is urgent in so far as, in order to avoid serious and irreparable harm to the applicant’s
         interests, it must be made and produce its effects before a decision is reached in the main action. Those conditions are cumulative,
         with the result that an application for interim measures must be dismissed if any one of them is not satisfied (order in Case
         C‑268/96 P(R) SCK and FNK v Commission [1996] ECR I-4971, paragraph 30). Where appropriate, the judge hearing the application must also weigh up the interests involved
         (see the order in Case C‑445/00 R Austria v Council [2001] ECR I‑1461, paragraph 73 and the case cited).
      
      34      In addition, in the context of that overall examination, the judge hearing the application has a wide discretion and is free
         to determine, having regard to the specific circumstances of the case, the manner and order in which those various conditions
         are to be examined, there being no rule of Community law imposing a pre-established scheme of analysis within which the need
         to order interim measures must be analysed and assessed (order in Case C-149/95 P(R) Commission v Atlantic Container Line and Others [1995] ECR I‑2165, paragraph 23, and order of 3 April 2007 in Case C-459/06 P(R) Vischim v Commission, not published in the ECR, paragraph 25).
      
       Admissibility
       Arguments of the parties
      35      The Commission submits that the application for interim measures should be dismissed on the ground that none of the relief
         sought is of the type that can be granted in the framework of interim proceedings.
      
      36      First, the Commission argues that the interim measures requested go beyond the scope of what the applicant could obtain in
         the main proceedings, which cannot result in the automatic divestiture of Ryanair’s minority shareholding. Should Aer Lingus
         prevail in the main proceedings, it would be for the Commission to take the necessary measures to comply with the Court’s
         judgment, in accordance with Article 233 EC. 
      
      37      In addition, the Commission points out that the applicant requests the adoption of measures having effect until the judgment
         in the main application or in Case T‑342/07, whichever is the later. According to the Commission, extending the duration of
         the measures sought beyond the end of the main proceedings would be to deny the provisional nature of the interim measures
         procedure. It also argues that the present application for interim measures cannot relate to different and separate proceedings
         to which the applicant is not a party.
      
      38      Second, so far as concerns the request for suspension of the Contested Decision, the Commission submits that, according to
         consistent case-law, an application for suspension of operation cannot, in principle, be envisaged against a negative administrative
         decision. 
      
      39      Third, so far as concerns the request that the President of the Court enjoin the Commission to order Ryanair to abstain from
         exercising its minority voting rights or to take certain positive steps, the Commission points out that, by this means, the
         applicant is seeking to escape the application of the case-law according to which the judge hearing the application for interim
         measures cannot issue directions to individuals who are not parties to the dispute.
      
      40      In the Commission’s opinion, the fact that Ryanair has been granted leave to intervene does not confer upon it the status
         of a party.
      
      41      Fourth, so far as concerns the request that the President of the Court adopt any order to similar effect against the Commission
         and/or Ryanair as the President may think fit, the Commission considers that such a claim is vague and imprecise and does
         not, therefore, meet the criteria laid down in the Rules of Procedure. Consequently, it should be rejected as inadmissible.
      
      42      In its statement in intervention, Ryanair supports the Commission’s submissions and considers that the application should
         be dismissed as inadmissible. It stresses, in particular, that the order sought goes beyond what could be obtained in the
         main proceedings and is inviting the judge hearing the application to disregard the constitutional balance between the Community
         institutions and to assume the role of the Commission. In addition, Ryanair submits that the interim measures are, in substance,
         requested not against the Commission, but against Ryanair itself, which is not a party to the proceedings. As such, Ryanair,
         as well as other affected parties, would be deprived of the procedural guarantees which they enjoy under the Regulation and
         under general principles of Community law, and would in particular be deprived of their rights of defence.
      
       Findings of the President
      43      Without contending clearly that the present application should be rejected as being inadmissible in its entirety, the Commission
         states that none of the forms of order which the applicant seeks can be granted in the context of proceedings for interim
         measures.
      
      44      Each of these forms of order must be examined separately.
      
      45      First, as regards the duration of the measures requested, it must be pointed out that, according to Article 107(4) of the
         Rules of Procedure, an order of the type requested by the applicant may have only an interim effect, and is to be without
         prejudice to the decision on the substance of the case by the Court of First Instance. It follows that, in principle, the
         duration of such an order cannot extend beyond that of the main proceedings to which it relates. Accordingly, in so far as
         the applicant’s request for measures ‘until the judgment in the main application or in Case T-342/07, whichever is the later’
         involves the application of interim measures beyond the date of the judgment in the main application, such request must be
         rejected. Should any interim measures be granted in the present proceedings, such measures may apply only until the judgment
         in the main application. 
      
      46      Second, as regards the request for suspension of operation of the Contested Decision, it should be noted that an application
         for suspension of operation cannot, in principle, be envisaged against a negative administrative decision, since the grant
         of suspension could not have the effect of changing the applicant’s position (order of the President of the Second Chamber
         of the Court of Justice in Case C-206/89 R S. v Commission [1989] ECR 2841, paragraph 14, orders of the President of the Court of Justice in Case C-89/97 P(R) Moccia Irme v Commission [1997] ECR I-2327, paragraph 45, and in Joined Cases C-486/01 P(R) and C‑488/01 P(R) Front national and Martinez v Parliament [2002] ECR I-1843, paragraph 73).
      
      47      By the Contested Decision, the Commission has rejected the applicant’s request that it open proceedings under Article 8(4)
         of the Regulation and adopt interim measures under Article 8(5) of that regulation to prevent Ryanair from exercising its
         voting rights in Aer Lingus, or to formally state that the Commission does not enjoy the power to do so. The suspension of
         operation of this negative administrative decision would not, in itself, have any effect on the conditions governing the exercise
         of Ryanair’s minority shareholding in Aer Lingus and thus would not have any consequence of use to the applicant.
      
      48      Since an order suspending the Contested Decision would be of no interest to the applicant, this request must be rejected,
         except to the extent to which suspension of the Contested Decision might be necessary for the purposes of adopting any other
         of the requests for interim measures applied for by Aer Lingus, should the President consider them to be admissible and well
         founded.
      
      49      Third, as regards the applicant’s request for an order that the Commission require Ryanair not to exercise any rights attached
         to or deriving from the shareholding held by Ryanair in Aer Lingus, to vest the shares in question in a trustee and not to
         dispose of any of them except to a buyer, and not to increase further its shareholding in Aer Lingus, it should be noted that,
         in principle, the adoption of interim measures which would constitute an interference with the exercise of the Commission’s
         powers, incompatible with the distribution of powers between the various Community institutions, as intended by the authors
         of the EC Treaty, cannot be entertained (see, to that effect, the orders of the President of the Court in Case T-213/97 R
         Eurocoton and Others v Council [1997] ECR II-1609, paragraph 40, and in Case T-107/01 R Sacilor Lormines v Commission [2002] ECR II-3193, paragraphs 52 and 53).
      
      50      In the present case, if it were to be decided in the judgment in the main application that, as contended by the applicant,
         the Commission has a power to order the measures set out in Article 8(4) and (5) of the Regulation, it would be for the Commission,
         should it consider it necessary in the context of the powers of control accorded to it in the field of concentrations, to
         adopt the restorative measures it deems appropriate, and to take the necessary measures to comply with the Court’s judgment,
         in accordance with Article 233 EC. Accordingly, should the judge hearing the application for interim measures grant this request,
         it would amount to an injunction to draw precise inferences from the annulment decision, and such an order would exceed the
         Court’s powers in the main action (order of the President of the Court in Case T-369/03 R Arizona Chemical v Commission [2004] ECR II-205, paragraph 67).
      
      51      Under the system for the division of powers established under the EC Treaty and by the Regulation, however, it is for the
         Commission, if it considers it necessary in the context of the powers of control accorded to it in the field of concentrations,
         and in particular by Article 8(4) and (5) of the Regulation, to adopt the restorative measures which it deems appropriate.
         It follows that, to the extent to which the applicant’s first request seeks to obtain an order from the President requiring
         the Commission to apply Article 8(4) and (5) of the Regulation in a particular manner, such a request must be rejected as
         inadmissible.
      
      52      In relation to the applicant’s request that the President of the Court make any such order or orders to similar effect against
         the Commission and/or Ryanair as the President may think fit, the Commission submits that this type of request is too vague,
         and, accordingly, inadmissible. The Commission bases this argument on established case-law of the Court to the effect that
         requests for interim measures pursuant to Article 243 EC cannot be vague and imprecise (see, to that effect, the orders of
         the President of the Court in Case T-228/95 R Lehrfreund v Council and Commission [1996] ECR II-111, paragraph 58, and in Case T-78/04 R Sumitomo Chemical v Commission [2004] ECR II-2049, upheld on this point on appeal in Case C-381/04 P, not published in the ECR).
      
      53      However, in cases where the content of the measures sought by the applicant is sufficiently clear from the rest of the application,
         the judge hearing the application may conclude that the request is not vague and imprecise in nature and thus consider it
         admissible. In the present case, it is clear from the first request that the applicant is seeking to obtain interim measures
         to ensure, inter alia, that Ryanair’s rights as shareholder are not exercised pending a final decision on the case. As the Commission points out
         at paragraph 25 of its observations, ‘what the applicant really wants is to prevent Ryanair from exercising its minority voting
         rights’. The scope of the measures requested for these purposes is made clear in the applicant’s first request. Accordingly,
         the request for ‘any such order or orders to similar effect against the Commission and/or Ryanair as the President may think
         fit’ is, in this case, sufficiently clear to meet the conditions laid down in the Rules of Procedure.
      
      54      To the extent to which such a request, in practice, seeks to obtain an order from the President of the Court that the Commission
         exercise its discretion under Article 8(4) and (5) in a particular manner, however, based on the foregoing, this request is
         inadmissible. 
      
      55      To the extent to which, on the other hand, the request seeks to obtain an order from the President addressed to the intervener,
         the Commission states that the judge hearing the application for interim measures cannot issue directions to individuals who
         are not parties to the dispute, that Ryanair should not be considered a party to the dispute, and that, accordingly, no interim
         measures can be addressed to it. In addition, even if Ryanair were to be considered a party to the proceedings, by virtue
         of its status as ‘intervener’, the Commission states, relying on settled case-law of the Court, that where the interim measures
         applied for may seriously affect the rights and interests of third parties, which in this case includes other Aer Lingus’
         shareholders, which, not being parties to the proceedings, have not been able to make their views known, such measures can
         be justified only if it appears that, without them, the applicant would be exposed to a situation liable to endanger their
         very existence (order of the President of the Court in Case T‑12/93 R CCE Vittel and CE Pierval v Commission [1993] ECR II-785, paragraph 20).
      
      56      It should be pointed out that Article 243 EC states clearly that ‘[t]he Court of Justice may in any cases before it prescribe
         any necessary interim measures’. Such broad wording is obviously intended to grant sufficient powers to the judge hearing
         an application for interim measures to prescribe any measure which he deems necessary to guarantee the full effectiveness
         of the definitive future decision, in order to ensure that there is no lacuna in the legal protection provided by the Community
         Courts (see order of the President of the Court of Justice in Case C-180/01 P(R) Commission v NALOO [2001] ECR I-5737, paragraph 52 and the case-law cited). In order to ensure the full effectiveness of Article 243 EC, therefore,
         it cannot be excluded that the judge hearing the application may impose orders directly on third parties, if necessary. Such
         broad discretion should, in this respect, be exercised with due regard to the procedural rights, and in particular the right
         to be heard, of the addressees of interim measures and of parties directly affected by the interim measures. Of course, when
         deciding whether to grant the interim measures applied for in this type of case, the judge hearing the application will, in
         addition, have due regard to both the strength of the prima facie case and the imminence of serious and irreparable harm in the specific case at stake. Even where a third party has not had
         an opportunity to be heard in the context of proceedings for interim measures, it cannot be excluded that interim measures
         might be imposed on it, in exceptional circumstances and bearing in mind the temporary nature of interim measures, if it appears
         that, without such measures, the applicant would be exposed to a situation liable to endanger its very existence.
      
      57      Ryanair has been admitted to intervene in the present proceedings by order of the President of 7 December 2007, and it submitted
         its observations on 19 December 2007. In addition, Ryanair, like all of the other parties to the present proceedings, has
         had the opportunity to put forward its views at length in the course of the oral hearing. Ryanair’s views are, therefore,
         taken into account in the present proceedings.
      
      58      It follows that the request for any such order or orders to similar effect against Ryanair as the President may think fit
         is admissible. 
      
      59      Such a conclusion cannot be reversed by the Commission’s argument that interim measures having the effect of suspending Ryanair’s
         rights attaching to its shareholding in Aer Lingus would have an impact on third parties, and in particular on the other shareholders
         of Aer Lingus, and that because such other parties have not been heard in the present proceedings, no order having an impact
         on them can be granted. In this respect, it should be pointed out that, based on the foregoing, the wide powers of the judge
         hearing an application for interim measures are limited only, in so far as an impact on the rights and interests of third
         parties is concerned, in cases where such rights and interests may be seriously affected (order in CCE Vittel and CE Pierval v Commission, cited in paragraph 54 above, paragraph 20). In addition, even where the rights and interests of third parties may be seriously
         affected by the interim measures requested, such interim measures may nonetheless be granted ‘if it appears that, without
         them, the applicants would be exposed to a situation liable to endanger their very existence’ (order in CCE Vittel and CE Pierval v Commission, cited in paragraph 54 above, paragraph 20, and case-law cited therein). The judge hearing an application for interim measures
         carries out such assessments when balancing the different interests at stake. Accordingly, it cannot be excluded that, if
         all the applicable conditions are satisfied, interim measures may be granted in the present proceedings, notwithstanding a
         possible impact on the rights and interests of other shareholders in Aer Lingus. 
      
       The Merits
       Prima facie case
      –       Arguments of the parties
      60      The applicant submits that the factual and legal elements set out below demonstrate that there is a serious dispute regarding
         the correctness of the Commission’s interpretation of Article 8(4) and (5) of the Regulation in the Contested Decision.
      
      61      First of all, the applicant contests the assertion in paragraph 12 of the Contested Decision, according to which ‘negative
         effects cannot occur since Ryanair has not acquired, and may not acquire, control of Aer Lingus’. In the applicant’s opinion
         this assertion is contrary to the facts, to sound economic theory and to previous Commission decisions.
      
      62      With regard to the first argument, the applicant stresses that Ryanair has used its shareholding to seek access to Aer Lingus’
         confidential strategic plans, has blocked special resolutions that would have assisted Aer Lingus in raising capital and/or
         making acquisitions, has requisitioned two Extraordinary General Meetings with the object of reversing Aer Lingus’ strategic
         decisions, and has threatened its directors with litigation for breach of statutory duty towards it as a shareholder. 
      
      63      These facts, according to the applicant, have had the result of distracting the management of Aer Lingus, embroiling the company
         in confrontation and legal disputes with Ryanair, and, inevitably, weakening Aer Lingus as an effective competitor of Ryanair.
      
      64      With regard to the second argument, the applicant submits that sound economic principles indicate that minority shareholdings
         such as Ryanair’s shareholding in Aer Lingus distort competition between the companies concerned. In particular, as a shareholder
         of Aer Lingus having the right to receive a proportion of Aer Lingus’ profits, Ryanair does not have incentives to compete
         with Aer Lingus, because it has a conflicting interest in maximising the value of its shareholding and ensuring that Aer Lingus
         is profitable. Shareholdings such as that of Ryanair, according to Aer Lingus, contribute significantly to anti-competitive
         outcomes. 
      
      65      With regard to the third argument, in support of its claim, the applicant relies on the Commission’s decisions in Tetra Laval/Sidel and Schneider/Legrand.
      
      66      In those two decisions, the Commission established that in particular circumstances the retention of a minority shareholding
         would impede the restoration of conditions of effective competition and would have disproportionate effects on the target
         company. 
      
      67      Secondly, according to the applicant, the Commission’s interpretation of Article 8 (4) and (5) is incorrect. The Commission,
         according to the applicant, has followed a purely textual approach, whereas a wider interpretation is more consistent with
         the purpose of the Regulation. 
      
      68      In the applicant’s submissions, in the Kali und Salz case (Joined Cases C-68/94 and C-30/95 France and others v Commission [1998] ECR I-1375) the Court of Justice, and in the Gencor case (Case T-102/96 Gencor v Commission [1999] ECR II-753) the Court of First Instance, faced with two possible interpretations of different provisions of the Regulation
         to those currently in issue, noted that the narrower interpretation would partially deprive the Regulation of its effectiveness,
         whereas the wider view was consistent with its text, even if not explicitly set out therein.
      
      69      In the same vein, the applicant claims that the natural meaning of Article 8(4) and (5) is consistent with the use of the
         powers set out therein to address a minority shareholding such as that of Ryanair, whereas that adopted by the Commission
         leaves the Community helpless in the face of the distortion of competition created by Ryanair’s minority stake, which was
         acquired as part of a prohibited concentration and is therefore inconsistent with the purpose of the Regulation.
      
      70      In particular, the applicant submits that the Commission’s interpretation fails to take account of the following recitals
         in the preamble to the Regulation: 2, 5, 7, 8, 14, 20 and 23.
      
      71      As far as Article 8(4) is concerned, instead of being guided by the recitals in the preamble to the Regulation, the Commission
         adopts a purely textual approach in paragraph 10 of the Contested Decision and takes the view that ‘the concentration assessed
         in the present case has not been implemented’ and that ‘the transactions that have been carried out during the Commission’s
         proceedings can therefore not be considered as part of an implemented concentration’.
      
      72      The first error committed by the Commission, according to the applicant, was to regard the ‘transactions’ which it must consider
         as somehow distinct from the concentration assessed in the Prohibition Decision. According to the applicant, it is apparent
         from paragraph 12 of the Prohibition Decision that the various ‘transactions’ referred to therein form an integral part of
         the prohibited concentration. Therefore, according to the applicant, the Commission, having acknowledged already in its decision
         of 20 December 2006 that such transactions and the public bid formed part of a single concentration for the purposes of Article
         3 of the Regulation, misidentified the concentration to which Article 8(4) is applicable. Two requirements must be satisfied
         for Article 8(4) to apply: there must be a concentration and it must be found to be incompatible with the common market.
      
      73      The second condition being satisfied, according to the applicant, the main question is to establish whether the concentration
         so defined has been implemented. In this regard, the applicant claims that the Commission wrongly equates the meaning of ‘implemented’
         in Article 8(4)(a) with ‘acquire control’ in the sense of Article 3(2) of the Regulation. In the applicant’s view, Article
         8(4)(a) does not refer to the ‘acquisition of control’, and only adopts the word ‘implemented’. In the opinion of the applicant,
         the fact that the concentration was never fully consummated, because the Commission prevented it, does not mean that the concentration
         has not been implemented, albeit partially, through the transactions referred to in paragraph 12 of the Prohibition Decision.
      
      74      In support of this claim, at the oral hearing, the applicant sought to introduce as new evidence Commission press releases,
         which, according to the applicant, demonstrate that it is common practice for the Commission to consider steps short of control
         as ‘implementation’. The applicant claims that the above documents, demonstrate that the Commission has in the past carried
         out surprise inspections to check whether the parties to a concentration had implemented an acquisition under review by the
         Commission, in breach of Article 7(1) of the Regulation.
      
      75      Thirdly, the applicant advances a legal ground based on Article 7 of the Regulation. Under Article 7(1), a concentration with
         a Community dimension may not be implemented until it has been declared compatible with the common market. Article 7(2) establishes
         that Article 7(1) does not prevent the implementation of a public bid or a series of transactions in securities, provided
         that the concentration is notified to the Commission and that the acquirer does not exercise the voting rights attaching to
         the securities acquired, except on the basis of a derogation granted by the Commission under Article 7(3).
      
      76      The applicant argues that paragraphs 1 and 2 of Article 7, read together, must prevent Ryanair from exercising its voting
         rights except in accordance with a derogation granted by the Commission under paragraph 3.
      
      77      The Commission argues that the applicant has failed to establish a prima facie case that would justify granting the interim measures sought. Firstly, as a starting point, the Commission observes that
         the Regulation applies only to concentrations in the sense of Article 3, and not to the acquisition of a minority shareholding
         that does not confer control within the meaning of Article 3(2), that is to say, decisive influence, and that it is not disputed
         that Ryanair’s shareholding in Aer Lingus does not give it control of that company.
      
      78      Secondly, the Commission argues that defining several transactions as part of a single concentration ensures that all transactions
         are notified together to the Commission, and safeguards the ‘one stop shop principle’. According to the Commission, however,
         this does not give the Commission jurisdiction to control minority shareholdings as such. 
      
      79      Thirdly, the Commission submits that once the single concentration defined during the administrative procedure is broken up,
         Article 21(3) of the Regulation no longer precludes the Member States from applying their national legislation on competition
         to such a minority shareholding.
      
      80      Fourthly, as far as the teleological interpretation of the provisions in question is concerned, the Commission points out
         that Aer Lingus’ interpretation of such provisions is contrary to the general purpose of the Regulation, which is to control
         concentrations in the sense of Article 3.
      
      81      Finally, the Commission argues that its previous decisions under Article 8(4) of the Regulation do not support Aer Lingus’
         contention that a concentration can be said to have been implemented in the absence of acquisition of control, since, in all
         previous cases, control had been acquired. 
      
      –       Findings of the President 
      82      The applicant submits, in essence, that the Commission wrongly refused to take action under Article 8(4) and (5) of the Regulation
         against Ryanair’s minority shareholding in Aer Lingus. In that respect, Aer Lingus contends that the minority shareholding
         in question has substantial negative effects on competition and submits that the Commission was wrong to conclude that it
         does not have the power in this case to take action under Article 8(4) and (5).
      
      83      With regard to the applicant’s first claim, relating to the assertion in paragraph 12 of the Contested Decision that ‘negative
         effects cannot occur since Ryanair has not acquired, and may not acquire, control of Aer Lingus’, it is clear from a closer
         reading of the Contested Decision that such a statement is taken out of context: it did not form the basis for the Commission’s
         decision not to adopt the measures requested by the applicant under Article 8(4) and (5), and is therefore irrelevant for
         the purposes of the present proceedings. Indeed, the rationale behind the Contested Decision is clearly that, according to
         the Commission, no concentration has been implemented in the circumstances at hand and that therefore the Commission has no
         powers to adopt measures under Article 8(4) and (5) in relation to the minority shareholding in question, irrespective of
         whether such minority shareholding might be deemed to give rise to competition concerns or not.
      
      84      It follows that the arguments brought by the applicant in support of this claim, namely those aimed at demonstrating that
         this claim is consistent with the facts of the case, ‘sound economic theory’, and previous Commission decisions, do not require
         further consideration. 
      
      85      Based on the parties’ arguments, as set out above and discussed during the oral hearing, the main question to be addressed
         by the President in the current proceedings for interim measures, as far as the requirement of a prima facie case is concerned, is whether the applicant has adequately demonstrated that, prima facie, the Commission wrongly interpreted the expression ‘implemented’ in Article 8 to imply an acquisition of control and that,
         on the other hand, the ‘implementation’ requirement should be construed to be satisfied by any actions or steps taken by the
         notifying party with a view to consummating the concentration. In other words, the issue is whether ‘partial implementation’
         or implementation of any of the elements which together constitute the single concentration notified can constitute ‘implementation’
         of that concentration and trigger the Commission’s powers under Article 8(4) and (5). 
      
      86      In support of its interpretation of Article 8(4) and (5), Aer Lingus cites the case-law of the Community Courts (paragraph
         68 supra) in which the Court of Justice and the Court of First Instance concluded that, faced with two possible interpretations
         of the Regulation, the interpretation that better reflects the purpose of that Regulation should be adopted. 
      
      87      In relation to the case-law relied upon by the applicant, it must be pointed out that in Kali und Salz the Court of Justice, and in Gencor the Court of First Instance, held that the provisions of the Regulation in question were to be interpreted by reference to
         the purpose of the Regulation because the precise scope of the provisions in question could not be conclusively assessed on
         the basis of their wording alone (Kali und Salz, at paragraph 168, and Gencor, at paragraph 148).
      
      88      Accordingly, before carrying out an analysis of Article 8(4) and (5) by reference to the purpose of the Regulation, it is
         first necessary to determine whether the wording of the provisions in question is not sufficiently clear and allows for the
         two different interpretations put forward by the applicant.
      
      89      In this regard it should first of all be noted that the definition of the English term ‘implementation’ may encompass both
         ‘the having accomplished some aim’ and ‘the carrying into effect’ and could therefore, in principle, leave room for confusion
         as to the precise scope of the provisions set out in Article 8(4) and (5). Whilst the use of the present perfect simple tense
         in the expression ‘has already been implemented’ in Article 8(4)(a) and (5)(c) of the Regulation might suggest that this expression
         refers to ‘the having accomplished some aim’, this consideration alone cannot be deemed to be sufficient to establish, even
         prima facie, the scope of the Commission’s powers under Article 8 of the Regulation. 
      
      90      However, it is settled case-law that the need for a uniform interpretation of Community regulations makes it impossible for
         a given piece of legislation to be considered in isolation and requires that, in case of doubt, it should be interpreted and
         applied in the light of the versions existing in the other official languages (see Case C-64/95 Lubella [1996] ECR I-5105, paragraph 17 and the case-law cited therein). Accordingly, it is necessary to ensure that the English
         version of Article 8(4) and (5) of the Regulation does not give the expression in question a different meaning from that of
         the other language versions, and such an expression must be interpreted and applied in the light of the versions which exist
         in the other official languages (see, to that effect, Case C-177/95 Ebony Maritime and Loten Navigation [1997] ECR I-1111, paragraphs 29 to 31). In this respect, it should be noted that in the French version of Article 8(4) the
         expression ‘has already been implemented’ is ‘a déjà été réalisée’, in the Italian version ‘è già stata realizzata’, and in
         the German version ‘vollzogen wurde’. The way in which the expression ‘implemented’ is set out in the sample of other official
         languages analysed above indicates that, prima facie, the definition of ‘implementation’ envisaged under Articles 8(4) and 8(5) encompasses full consummation of the concentration.
         
      
      91      Secondly, this conclusion can, prima facie, be confirmed through a comparison of the French version of Article 8(4) and (5) with the French version of other Community
         legislation in which the term ‘implementation’ is clearly meant to indicate ‘carrying into effect’ rather than ‘the act of
         accomplishing some aim’. An example of such use of the term ‘implementation’ can be found in recital 3 of the preamble to
         Commission Regulation (EC) No 794/2004 of 21 April 2004 implementing Council Regulation (EC) No 659/1999 laying down detailed
         rules for the application of Article 93 of the EC Treaty, which states that ‘… [s]uch simplified arrangements should only
         be accepted if the Commission has been regularly informed on the implementation of the existing aid concerned’. The term ‘implementation’
         in this case appears in the French version of recital 3 as ‘mise en oeuvre’, and not as ‘réalisation’. 
      
      92      Thirdly, it must be borne in mind that once the Commission’s powers under Article 8(4) are triggered, the Commission may require
         the undertakings concerned to ‘dissolve the concentration’, an expression which, prima facie, implies the existence of a concentration as defined in Article 3 of the Regulation, and therefore an acquisition of control.
         In this context, it must be noted that, in the present case, it is not disputed that, through its minority shareholding in
         Aer Lingus, Ryanair is not in a position to exercise de jure or de facto control over the applicant. 
      
      93      It follows that, without its being necessary to discuss the applicant’s arguments relating to the purpose of the Regulation
         in any detail, it may be concluded that the applicant has failed to demonstrate the existence of a prima facie case.
      
      94      This conclusion cannot be brought into question by the applicant’s claim that the Commission treats partial implementation
         as precluded by Article 7(1), even as regards steps falling short of transfer of control, and indicates to parties that they
         should refrain from such steps. At the hearing the Commission confirmed that, although it has never adopted a formal position
         in relation to the question whether Article 7 prevents the acquisition of minority shareholdings, in the context of discussions
         with the notifying parties the Commission has adopted the policy of asking the acquirer to refrain from exercising any voting
         rights, whether arising from a controlling shareholding or a minority shareholding, until the end of the proceedings. In this
         regard, it should first be pointed out that, based on the distributions of competence discussed at paragraph 42 above, the
         interpretation of Community law is a prerogative of the Court of Justice and not of the Commission, and that, accordingly,
         the Commission’s practice, albeit generally influential and important in determining whether any legitimate expectations may
         be justified, is not conclusive for present purposes. Secondly, as was pointed out by the Commission in the course of the
         hearing, even if Article 7(1) of the Regulation were to be interpreted as prohibiting only a change of control pending the
         Commission’s review, and not steps short of change of control such as the exercise of voting rights arising from minority
         shareholdings, taking into account the strict time-limits within which the Commission must review a notified concentration
         and the combinations of factors which might give rise to control in any given case, it would remain legitimate for the Commission
         to ask the parties not to take any action which might lead to a change of control. In addition, although it is not, prima facie, a requirement arising from the Regulation, the notifying parties might consider it advantageous to facilitate the Commission’s
         administrative process by complying with such a request and, thereby, to avoid the risk that the Commission might consider
         it necessary to carry out inspections at the parties’ premises to verify whether any steps taken by the notifying parties
         do not in fact produce a change of control. 
      
      95      In relation to the press releases, which, according to the applicant, demonstrate that it is common practice for the Commission
         to consider steps short of control as ‘implementation’, it should be noted at the outset that no explanation has been provided
         by the applicant as to why the press releases in question, one of which dates back to 1997, were not available to it at the
         time at which it filed its application and why they had to be introduced in the proceedings at such a late stage. However,
         irrespective of whether this late evidence is admissible or not, suffice it to state that such evidence is inconclusive as
         to the meaning of the expression ‘implementation’. In particular, the information contained in the press releases discussed
         does not appear to have an impact on the considerations set out above. 
      
      96      During the hearing, counsel for the intervener referred to the use of this Court’s time by the applicant in submitting late
         evidence of this type as bordering on contempt of court. Without needing to rule on this serious allegation, the President
         finds that such evidence is in any event inconclusive, and that, also in this respect, it can be concluded that the applicant
         has failed to demonstrate the existence of a prima facie case.
      
      97      Under the applicant’s first claim, namely that Ryanair’s shareholding in Aer Lingus gives rise to serious competition concerns,
         the applicant argued that the refusal of the Commission to adopt measures under Article 8(4) to request disposal of Ryanair’s
         minority shareholding is contrary to previous Commission decisions, and referred in particular to the Commission’s decisions
         in Tetra Laval/Sidel and Schneider/Legrand. In this respect, for the sake of completeness, it should be pointed out that this evidence also cannot reverse the conclusions
         reached above. In particular, the fact that in Tetra Laval/Sidel and Schneider/Legrand the Commission found that the retention of a minority shareholding in the target in the notified transaction which had been
         prohibited under the Regulation would impede the restoration of effective competition, and therefore ordered the disposal
         of all the shares acquired, is irrelevant for the purposes of the present proceedings. Indeed, it is consistent with the above
         conclusions that the Commission’s powers in those cases had been triggered by the ‘implementation’ of the transaction, in
         other words, by a change of control. Once the powers of the Commission had been triggered, the Commission was entitled, as
         specifically provided for under Article 8(4), to ‘require the undertakings concerned to dissolve the concentration, in particular
         through the dissolution of the merger or the disposal of all the shares or assets acquired, so as to restore the situation
         prevailing prior to the implementation of the concentration’.
      
      98      As far as the applicant’s submission based on Article 7 is concerned, namely that, since the proposed acquisition has not
         yet been declared compatible with the common market, Ryanair may acquire securities or implement a public bid in the context
         of the notified transaction only in so far as it does not exercise the voting rights attaching to the securities acquired,
         except under derogation from the Commission, suffice it to state that the same interpretation of the term ‘implementation’
         set out above must apply mutatis mutandis to the applicant’s arguments relating to Article 7. 
      
      99      Accordingly, in relation to this legal ground also, Aer Lingus has failed to demonstrate the existence of a prima facie case.
      
      100    Finally, the applicant argues that the interpretation of Article 8(4) and (5) adopted by the Commission, in conjunction with
         the Article 21(3) prohibition of Member States applying their national legislation on competition to any concentration having
         a Community dimension, gives rise to a lacuna which is incompatible with the aim of the Regulation. In this respect it should
         first be noted that the same factual scenario, whereby an undertaking enjoys a minority shareholding in a competitor, not
         giving rise to control, and that such competitor might consider that the minority shareholding in question is harmful to competition,
         could very well occur in cases where such minority shareholding is not acquired in the context of a concentration. In this
         scenario, the Regulation would clearly not apply, and the impossibility for the Commission to scrutinise the minority shareholding
         in question under Article 8(4) and (5) of the Regulation would clearly not be deemed to constitute a lacuna in the ability
         of the Community to secure undistorted competition. 
      
      101    As far as the operation of Article 21 is concerned, it should be pointed out, first, that Article 21(3) must be read in conjunction
         with Article 21(1). Article 21(1) provides that the Regulation alone is to apply to concentrations having a Community dimension
         as defined in Article 3 of the Regulation. In this light, in circumstances such as those in the present case, where a concentration
         has been notified, declared incompatible with the common market by the Commission and on this basis the public bid was abandoned,
         no concentration with a Community dimension as defined in Article 3 is in existence. Nor can a concentration with a Community
         dimension be contemplated by the parties in these circumstances, since any such concentration would be in violation of an
         existing Commission decision. On this basis, as the Commission sets out in its written observations, Article 21(3) cannot
         be said, prima facie, to apply since there is no concentration in existence, or contemplated, to which the Regulation alone must apply. The remaining
         minority shareholding is, prima facie, no longer linked to an acquisition of control, ceases to be part of a ‘concentration’ and lies outside the scope of the
         Regulation. Accordingly, Article 21, which under recital 8 to the Regulation is aimed at ensuring that concentrations generating
         significant structural changes are reviewed exclusively by the Commission in application of the ‘one-stop shop principle’,
         does not in principle, under these circumstances, prevent the application by national competition authorities and national
         courts of national legislation on competition.
      
      102    In this respect, the fact that the Commission’s decision finding the concentration incompatible with the common market is
         being challenged before the Court of First Instance makes no material difference, since, on the basis of Article 242 EC, actions
         before the Court of Justice do not have suspensory effect. In addition, if the relevant national competition authorities were
         deterred from taking definitive measures by considerations relating to procedural economy, it would be open to such authorities
         to adopt interim measures to address any concern which they might identify pending judgment by this Court. 
      
      103    Furthermore, as far as the existence of a regulatory lacuna is concerned, it should be pointed out that, whilst a minority
         shareholding of the type in question cannot, prima facie, be regulated under the Regulation, it might be envisaged that the EC Treaty provisions on competition, and in particular
         Article 81 EC and Article 82 EC, can be applied by the Commission to the conduct of the undertakings involved following the
         acquisition of the minority shareholding. In this regard it should be recalled that under Article 7(1) of Council Regulation
         (EC) No 1/2003 of 16 December 2002, where it finds that an infringement of Article 81 EC or of Article 82 EC has taken place,
         the Commission has the power to impose ‘any behavioural or structural remedies which are proportionate to the infringement
         committed and necessary to bring the infringement effectively to an end’.
      
      104    Whilst Article 81 EC might, prima facie, be difficult to apply in cases, such as the present, in which the infringement in question arises from the acquisition of
         shares on the market and, therefore, the necessary meeting of minds might be difficult to establish, the applicant may ask
         the Commission to initiate a procedure under Article 82 EC if it believes that Ryanair enjoys a dominant position on one or
         more markets and is abusing that dominant position by interfering with a direct competitor’s business strategy and/or by exploiting
         its minority shareholding in a direct competitor to weaken its position.
      
      105    It is also appropriate to point out that this scenario applies in cases, such as the present, in which all parties agree that
         no change of control has occurred for the purposes of the Regulation. However, should Ryanair, at a later stage, be found
         to enjoy or to have acquired control over Aer Lingus by virtue of its minority shareholding, then Article 8(4) and (5) might
         apply.
      
      106    Accordingly, in relation also to this legal ground, relating to the existence of a lacuna which is incompatible with the aim
         of the Regulation, it can be concluded that the applicant has failed to demonstrate the existence of a prima facie case. 
      
      107    It follows that the applicant has failed to demonstrate the existence of a prima facie case.
      
       Urgency
      –       Arguments of the parties
      108    The applicant takes the view that the condition relating to urgency is satisfied in this case, in particular in so far as
         there is a risk that Ryanair could impose its wishes on Aer Lingus at any time.
      
      109    The applicant submits, first, that under the current shareholding structure of Aer Lingus Ryanair already enjoys the power
         to block special resolutions requiring a 75% majority. The applicant, furthermore, submits that Ryanair has already used its
         minority shareholding in Aer Lingus to block a proposal for a special resolution under which Aer Lingus would have been authorised
         to issue additional shares equivalent to up to 5% of its issued share capital without having first to offer those shares to
         existing shareholders.
      
      110    Secondly, Ryanair’s weight when voting on ordinary resolutions is in practice more significant than the weight conferred on
         it by its shareholding for a number of reasons. In particular, on the assumption that only some 80% of Aer Lingus shares are
         going to be voted at a general meeting, which according to the applicant is the likely turnout based on the turnout at the
         first, and so far only, general meeting of Aer Lingus, Ryanair’s actual voting weight tends towards 40%. Such weight is further
         increased by the fact that Ryanair is the largest shareholder in Aer Lingus and one with very significant aviation expertise
         and may, according to the applicant, have a potentially very significant influence on other shareholders.
      
      111    Thirdly, the applicant claims that there is a possibility that the Irish Government, Aer Lingus’ second largest shareholder,
         may abstain from shareholder resolutions affecting the strategic direction of the company. In addition, there may be circumstances
         in which the Irish Government may be required to abstain from voting, for example where it is a related party to a transaction.
         According to the applicant, this might be the case where Aer Lingus intends to enter into agreements with the State-owned
         Dublin Airport Authority, for example, to redevelop the Aer Lingus head office site. In such circumstances, Ryanair’s shareholding
         might in fact represent more than 50% of the votes likely to be cast.
      
      112    In addition, Aer Lingus puts forward a number of examples of circumstances in which Ryanair may interfere with Aer Lingus’
         business by taking advantage of the scenarios set out above. In particular, Ryanair may employ its shareholding in Aer Lingus
         to further its campaign against Dublin Airport’s Terminal 2, which according to the applicant is crucial to Aer Lingus’ expansion
         plans. Equally, Ryanair, based on its preference for Boeing aircraft, may interfere with Aer Lingus’ plans to purchase Airbus
         aircraft. In its written pleadings, Aer Lingus reported Ryanair’s intention to interfere with the decision of the Board of
         Aer Lingus to abandon a number of routes and to open new ones. At the hearing, however, it was confirmed that such attempts
         had been unsuccessful. According to the applicant the damage which would arise from Ryanair’s exercise of its voting rights
         as a minority shareholder, should this result in the Board being defeated on an issue of commercial policy, would be both
         serious and irreparable, and the resulting disruption to Aer Lingus’ business could not be remedied by the Court’s judgment
         in the main application, or at all. 
      
      113    At the oral hearing the applicant sought to introduce as new evidence information relating to, inter alia, a contract with Airbus for the delivery of Airbus wide-body aircraft which, according to the applicant, would need to be
         approved by the shareholders shortly after the hearing, and which constitutes a pivotal aspect of Aer Lingus’ business strategy
         to exploit the opportunities arising from the Open Skies regime. Should the Board’s initiatives relating to such opportunities
         not be approved by the shareholders of Aer Lingus in the short term, Aer Lingus would suffer serious and irreparable harm
         since such opportunities would not be available to Aer Lingus following a judgment in the main proceedings.
      
      114    Finally, the applicant claims that the Court should, in the present case, apply the ‘precautionary principle’, because, according
         to the applicant, once it has been shown that there is a non-negligible risk that Ryanair might cause or contribute to Aer
         Lingus suffering serious and irreparable damage, the Court is entitled to take protective measures without having to await
         further proof of the reality of that risk.
      
      115    The Commission, for its part, submits essentially that the urgency requirement is not satisfied.
      
      –       Findings of the President
      116    According to settled case-law, the urgency of an application for interim relief must be assessed in the light of the need
         for an interlocutory order in order to avoid serious and irreparable damage to the party seeking the relief. It is for that
         party to prove that it cannot await the outcome of the main proceedings without suffering damage of that kind (see order of
         the President of the Court in Case T‑151/01 R Duales System Deutschland v Commission [2001] ECR II-3295, paragraph 187 and the case-law cited).
      
      117    Where damage depends on the occurrence of a number of factors, it is enough for that damage to be foreseeable with a sufficient
         degree of probability (order in Arizona Chemical and Others v Commission, cited in paragraph 50 above, paragraph 71; see also, to that effect, the orders of the Court of Justice in Case C-280/93 R
         Germany v Council [1993] ECR I-3667, paragraphs 32 to 34, and of the President of the Court of Justice in Case C‑335/99 P(R) HFB and Others v Commission [1999] ECR I-8705, paragraph 67). However, the applicant is still required to prove the facts which are deemed to show the
         probability of serious and irreparable damage (Arizona Chemical and Others v Commission, paragraph 72; see also, to that effect, HFB and Others v Commission, paragraph 67).
      
      118    In that regard, it must be pointed out that, in order to be able to determine whether the damage which applicants fear is
         serious and irreparable and therefore provides grounds for ordering interim measures, the judge hearing the application must
         have hard evidence allowing him to determine the precise consequences which the absence of the measures applied for would
         in all probability entail for each of the undertakings concerned. 
      
      119    As a preliminary point, therefore, it should be underlined that the applicant’s claim that the President should apply the
         ‘precautionary principle’, and that the Court is entitled to apply ‘protective measures’ without having to await proof of
         the reality of the risk alleged by the applicant is manifestly inconsistent with the principles and the case-law applicable
         to interim measures applications, and cannot be entertained. 
      
      120    In the present case, the applicant submits that the interference in its business affairs by its shareholder and principal
         competitor Ryanair would place it in an extremely difficult position and that, as a consequence, it would suffer damage which
         would be serious and irreparable. The applicant, in particular, has put forward a number of scenarios in which Ryanair might
         be able to influence the outcome of voting in relation to a number of matters which are, according to the applicant, crucial
         to the growth plans that the Board of Aer Lingus has set for that company. 
      
      121    In this regard, as a preliminary point, it should be emphasised that it is not being claimed by the applicant that Ryanair
         is in a position to exercise control over Aer Lingus. On the basis of the definition of control under Article 3(2), it follows
         that Ryanair cannot be understood to be in a position to ‘exercise decisive influence’ over Aer Lingus. 
      
      122    Both in its written pleadings and in the course of the oral hearing, when it was given ample opportunity to present its case,
         moreover, the applicant has failed to provide sufficiently concrete evidence in relation to the type of harm that is at stake
         for Aer Lingus, the likelihood of such harm occurring, and whether such harm is indeed serious and irreparable. For example,
         the applicant has failed to provide sufficiently concrete evidence to establish, in relation to each example put forward,
         inter alia, whether and when a vote must be held, why a vote has to be held before a decision is issued in the main proceedings, why
         Ryanair alone would be able, in the specific circumstances, to oppose a proposal of the Board or to pass its own resolution.
         In addition, Aer Lingus has failed to provide sufficient evidence to support its claim that the resulting harm would be both
         serious and irreparable.
      
      123    It follows that the assertions put forward by the applicant remain hypothetical and unsubstantiated statements which do not
         satisfy the condition of foreseeability of harm with the requisite degree of probability.
      
      124    More specifically, in relation, first, to the claim that under the current shareholding structure of Aer Lingus, Ryanair already
         enjoys the power to block special resolutions requiring a 75% majority, and has on one occasion already done so, Aer Lingus
         has failed to provide concrete evidence demonstrating that the passing of any such special resolution is anticipated to be
         required before the decision in the main proceedings is issued by this Court. In addition, Aer Lingus has failed to provide
         concrete evidence indicating with the requisite degree of probability that Ryanair will oppose such a hypothetical special
         resolution, and has failed to provide any concrete evidence to support the statement that any such opposition is likely to
         cause both serious and irreparable harm to Aer Lingus. With reference to the example of the only special resolution which
         Ryanair has so far successfully opposed, no concrete evidence was provided by Aer Lingus to support its statement that the
         failure of the Board to obtain the abolition of shareholders’ pre-emption rights is likely to cause serious and irreparable
         harm to Aer Lingus.
      
      125    Secondly, in relation to Aer Lingus’ claim that Ryanair’s weight when voting on ordinary resolutions is in practice more significant
         than the weight conferred on it by its shareholding, it should be noted, again, that, by this argument, the applicant is not
         claiming that Ryanair is in a position of de jure or de facto control. Furthermore, Aer Lingus has failed to provide concrete evidence to demonstrate that the passing of any such ordinary
         resolution is anticipated to be required before the decision in the main proceedings is issued by this Court. In addition,
         Aer Lingus has failed to provide any concrete evidence to support the statement that any such opposition is likely to cause
         both serious and irreparable harm to Aer Lingus. 
      
      126    In this context Aer Lingus claimed that Ryanair’s shareholding might give rise to serious harm to competition primarily in
         the context of two issues, namely the Aer Lingus Board’s proposal to acquire Airbus aircraft, and the Board’s plans regarding
         Dublin Airport’s Terminal 2. 
      
      127    As far as the Board’s proposal to acquire Airbus aircraft is concerned, it should first of all be pointed out that Aer Lingus’
         conclusion that Ryanair would object to such acquisition is based on the general assumption that, since Ryanair owns a Boeing-only
         fleet, Ryanair would seek to impose the purchase of Boeing aircraft on Aer Lingus, and on a press statement in which Ryanair
         is reported to have declared that it would ensure that Aer Lingus’ fleet be converted to a Boeing-only fleet. In that regard,
         it was pointed out by Ryanair at the hearing, and no objection was raised by Aer Lingus, that such intention was expressed
         at a time when the acquisition was being contemplated, and that the purpose of the idea of converting Aer Lingus’ fleet to
         a Boeing-only fleet was to facilitate the integration of Aer Lingus into Ryanair. Whilst Ryanair has appealed the Commission
         decision declaring its acquisition of Aer Lingus incompatible with the common market, and on this basis, it might be said
         to be still contemplating, ultimately, the possibility of integrating Aer Lingus into Ryanair, it cannot be concluded on the
         basis of the evidence provided that there is a sufficient probability that Ryanair would object to the proposal of the Aer
         Lingus Board to acquire Airbus aircraft. 
      
      128    In addition, while at the hearing Aer Lingus submitted that a purchase of Airbus wide-body aircraft is anticipated, and would
         need to be approved by the shareholders shortly after the hearing, Aer Lingus failed to demonstrate to the requisite degree
         of probability that, if such approval is required, the turnout at the shareholder meeting would be so low as to provide Ryanair
         with enough voting weight to prevent the approval of such acquisition, and even less to impose the acquisition of Boeing aircraft.
         Finally, even supposing that Ryanair would be in a position to object to the purchase of Airbus aircraft, Aer Lingus has not
         alleged that should the contract not be ratified by a certain date, its option would necessarily expire.
      
      129    Equally, in relation to Aer Lingus’ claim that the Irish Government may decide, or may be required by Irish legislation, to
         abstain on some shareholder resolutions, no concrete evidence was provided to demonstrate that a specific issue in relation
         to which the Irish Government would not exercise its voting rights is anticipated to require shareholder approval before the
         decision in the main proceedings is issued by this Court. In addition, Aer Lingus has failed to provide any concrete evidence
         indicating to the requisite degree of probability that such abstention is likely to result in the rejection of the Board’s
         proposal, and that this is in turn likely to cause both serious and irreparable harm to Aer Lingus. With reference to the
         specific example of Terminal 2, Aer Lingus provided no concrete evidence to support its statement that a shareholder resolution
         is required in order to approve the Board’s plans in this context, and no concrete evidence was adduced to demonstrate that
         the Irish Government will be required by Irish legislation not to exercise its voting rights. Finally, no evidence was provided
         to support the statement that a failure of the Board to obtain shareholder approval in relation to its approach to the use
         of Terminal 2 is likely to cause harm to Aer Lingus which will be both serious and irreparable. 
      
      130    In addition, in its submissions relating to the issues above, the applicant has failed to demonstrate that the harm which
         Aer Lingus would allegedly suffer is of a type other than pecuniary. 
      
      131    In relation to pecuniary damage, it is appropriate at this stage to state that it is established case-law that damage of this
         nature cannot, save in exceptional circumstances, be regarded as irreparable, if it can ultimately be the subject of financial
         compensation. Pecuniary damage can justify the award of interim measures only if it appears that, without the measures sought,
         the applicant would be in a position that could jeopardise its existence before final decision in the main action or irremediably
         alter its position in the market (orders of the President of the Court in Case T-181/02 R Neue Erba Lautex v Commission [2002] ECR II-5081, paragraph 84, in Case T-169/00 R Esedra v Commission [2000] ECR II-2951, paragraph 45, in Case T-148/04 R TQ3 Travel Solutions Belgium v Commission [2004] ECR II-3027, paragraph 46, and in Case T-316/04 R Wam v Commission [2004] ECR II-3917, paragraph 29). In this regard, suffice it to state that at no point has the applicant claimed that, without
         the interim measures sought, its very existence would be jeopardised or its market position irremediably altered before a
         final decision is issued in the main action.
      
      132    At the oral hearing, the applicant did offer to provide, in camera, and in the absence of the intervener, new and more specific information relating to the examples of harm set out above.
         As an example of the type of information which it could provide in an in camera session, the applicant explained that a vote would soon be required at shareholder level to approve a contract for the purchase
         of Airbus aircraft, detailed information in relation to which is highly confidential. The applicant did not, however, explain
         how the additional information could fulfil the urgency requirement for the granting of interim measures. Moreover, the applicant
         failed to explain why such additional information could not be provided with its written application, under the claim of confidentiality,
         and had to be introduced at such a late stage in the proceedings. Finally, it follows from the considerations set out above
         in relation to the admissibility of a request for interim measures to be addressed to Ryanair or having an impact on Ryanair,
         that evidence provided in the absence of Ryanair cannot be used as the basis for interim measures, since that would give rise
         to a breach of Ryanair’s rights of defence. The only exception to this principle, which is based on the temporary nature of
         interim measures, applies in cases where, in the absence of the interim measures sought, the very existence of the applicant
         would be jeopardised. As noted above, at no point in the proceedings has Aer Lingus claimed that its existence would be jeopardised
         in the absence of interim measures. 
      
      133    In any event, irrespective of whether such new evidence is admissible or not, there is no evidence that such additional information
         would have been of a nature capable of changing the outcome of the President’s assessment set out above. 
      
      134    In the light of the foregoing, it must be held that the applicant has not established that without the interim measures sought
         it will suffer serious and irreparable harm.
      
      135    It follows from all of the foregoing that the applicant has not demonstrated the requisite prima facie case and the need for interim measures to prevent an imminent risk of serious and irreparable harm. The application for interim
         measures must therefore be rejected. This is particularly so in light of the fact that, as results from the reasoning in paragraph
         56 above, a particularly strong prima facie case and the existence of very serious and irreparable harm will have to be demonstrated before the required measures could
         be imposed on Ryanair, in view of the fact that those measures would have a serious impact on the rights and interests of
         Ryanair as a shareholder of Aer Lingus. 
      
      On those grounds,
      THE PRESIDENT OF THE COURT OF FIRST INSTANCE
      hereby orders:
      1)      The application for interim measures is dismissed.
      2)      Costs are reserved.
      Luxembourg, 18 March 2008.
      
               E. Coulon
            
             
            
                     M. Jaeger
            
         
               Registrar
            
             
            
                     President
            
         * Language of the case: English.