Action brought on 19 November 2007 — Aer Lingus Group v Commission

(Case T-411/07)

(2008/C 8/43)

Language of the case: English

Parties

Applicant: Aer Lingus Group plc (Dublin, Ireland) (represented by: A. Burnside, Solicitor, B. van de Walle de Ghelcke, lawyer, T. Snels, lawyer)

Defendant: Commission of the European Communities

Form of order sought

Pleas in law and main arguments

By means of this application, the applicant seeks annulment of Commission Decision C(2007) 4600 of 11 October 2007 by which the Commission rejected the applicant's request to initiate proceedings under Article 8(4) and to adopt interim measures under Article 8(5) of Council Regulation (EC) No 139/2004 (the ‘EC Merger Regulation’), following Commission Decision C(2007) 3104 of 27 June 2007 (‘the Prohibition Decision’) declaring a concentration incompatible with the common market and the functioning of the EEA Agreement (Case COMP/M.4439 — Ryanair — Aer Lingus).

The applicant submits that the Commission has both misconstrued and misapplied Articles 8(4) and 8(5) of the EC Merger Regulation by stating that it did not have the power to require Ryanair, following the Prohibition Decision, to divest its minority stake in Aer Lingus, or to take other measures to restore the status quo ante, or to take interim measures in the meantime.

The applicant claims in particular that, since the Commission explicitly treated this minority stake and Ryanair's associated public offer for Aer Lingus as forming integral parts of the same single concentration, it follows that the prohibited concentration has been partially implemented. Moreover, the applicant contends that Articles 8(4) and 8(5) of the EC Merger Regulation empower the Commission in these circumstances to act to address the adverse effects on competition arising from this minority shareholding linking two companies which have been held to be each other's closest competitors on air transport routes to and from Ireland.

The applicant further claims that the Commission has acted in breach of Article 21(3) of the EC Merger Regulation by failing to assert its exclusive jurisdiction and instead leaving open the possibility on intervention by Member States.