Summary of Commission Decision of 27 June 2007 Declaring A

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

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

(2008/C 47/05)

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

I. SUMMARY

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

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

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

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

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

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

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

II. THE PARTIES

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

(1) OJ L 24, 29.1.2004, p. 1. C 47/10EN Official Journal of the European Union 20.2.2008

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

III. THE OPERATION

10. The transaction concerns an acquisition of sole control by Ryanair of Aer Lingus by way of a public bid for all outstanding shares. Ryanair started to acquire a substantial number of shares, amounting to 25,17 % of Aer Lingus' share capital, between September and November 2006. On 5 October 2006, Ryanair also announced a public bid for the entire share capital of Aer Lingus with a deadline for accep- tance until 13 November 2006, which was subsequently extended by Ryanair first until 4 December 2006 and then until 22 December 2006. Because Ryanair's share purchases and the public bid are closely connected in terms of timing and ultimate economic objective, the acquisition of shares before and during the public offer period and the public bid itself constitute a single concentration within the meaning of Article 3 of the Merger Regulation. The fact that Ryanair's bid has technically lapsed in the meantime does not remove the Commission's jurisdiction, since Ryanair has already announced to make a new bid should the Commission clear the transaction (1).

IV. COMMUNITY DIMENSION

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

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

V. RELEVANT MARKETS

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

(1) See Article 4(1) of the Merger Regulation. 20.2.2008 EN Official Journal of the European Union C 47/11

14. Ryanair submits that the relevant product market includes point-to-point scheduled air transport services whereby each route between a point-of-origin and point-of-destination is defined as a separate market. The decision explains that this is in line with the previous decision-making practice of the Commission (1) and that this approach was also confirmed by the in-depth market investigation. The other option, namely to define an overall market for short-haul flights from/to Ireland, which would have been based in particular on the supply-side substitutability between different routes from the common base of the parties in Dublin, was not upheld. The supply-side substitution would not be sufficiently immediate and effective. Further, this market definition would disregard the demand-side substitution between different routes, which is practically non-existent for a large majority of customers.

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

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

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

Table 1

List of relevant airports for determination of city pairs

City

Airports

London Manchester Milan

Stansted (STN) Manchester (MAN) Milan Linate (LIN)

Heathrow (LHR) Liverpool (LPL) Malpensa (MXP)

Gatwick (LGW) Leeds-Bradford (LBA) Bergamo (Orio al Serio) (BGY)

Luton (LTN)

London City (LCY)

Barcelona Birmingham Newcastle

Barcelona (BCN) Birmingham International (BHX) Newcastle (NCL)

Girona-Costa Brava (GRO) East Midlands (EMA) Durham Tees Valley (MME)

Reus (REU)

(1) See e.g. Cases COMP/M.3940 — Lufthansa/Eurowings, COMP/M.3280 — Air France/KLM, COMP/M.3770 — Lufthansa/Swiss. C 47/12EN Official Journal of the European Union 20.2.2008

City

Airports

Glasgow Paris Lyon

Glasgow International (GLA) Paris Charles de Gaulle (CDG) Lyon St Exupéry (LYS)

Prestwick (PIK) Beauvais-Tillé (BVA) Grenoble (GNB)

Toulouse Nantes/Rennes Brussels

Toulouse Blagnac (TLS) Rennes (RNS) Brussels (BRU)

Carcassonne (CCF) Nantes Atlantique (NTE) Charleroi Brussels South (CRL)

Amsterdam Frankfurt Hamburg

Amsterdam-Schiphol (AMS) Frankfurt International (FRA) Hamburg (HAM)

Eindhoven (EIN) Hahn (HHN) Lübeck Blankensee (LBC)

Vienna/Bratislava Alicante Bilbao

Vienna Schwechat International (VIE) Alicante (ALC) Bilbao Sondica (BIO)

Bratislava (BTS) Murcia San Javier (MJV) Vitoria (VIT)

Tenerife Rome Venice

Tenerife Norte Los Rodeos (TFN) Rome Ciampino (CIA) Venice (VCE)

Tenerife Sur Reina Sofia (TFS) Rome Fiumicino (FCO) Treviso (TSF)

Bologna

Bologna Guglielmo Marconi (BLQ)

Forlì (FRL)

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

19. Ryanair puts forward that in particular on the predominantly leisure routes, charter airlines provide significant competitive constraints to the services of the parties. However, the market investigation did not confirm that charter airlines would to a significant extent constrain the merging parties on the Irish routes. The Commission's market investigation has shown that in Ireland, unlike in other countries, charter airlines offer only very few so-called ‘dry seats’, i.e. seats that are sold separately and not as part of a holiday package to end customers. There are also arguments to exclude the charter carriers' activities from the market (in particular the fact that their service is different (charter seats are predominantly sold in Ireland as part of the package holidays), they sell via different distribution channels (practically exclusively through tour operators), they provide less flexibility (charters usually operated only on weekends and thus cannot offer the flexibility of different flights during the week) and services are often seasonal). However, even if ‘dry seats’ sales were taken into account, the competitive assessment of the case would not be affected, due to the very limited number of ‘dry seats’ sold. 20.2.2008 EN Official Journal of the European Union C 47/13

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

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

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

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

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

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

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

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

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

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

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

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

VI. COMPETITIVE ASSESSMENT

23. The decision highlights that the proposed transaction is different from the previous air transport cases assessed by the Commission because the merging parties are both ‘low-frills’ carriers concentrating on point-to-point traffic within Europe. Further, the merger would combine two airlines with a significant presence at their strong bases at Dublin Airport, where they would account for approximately 80 % of European short-haul traffic post-merger. As a result, Aer Lingus' and Ryanair's operations overlap on an unprecedented large number of routes. C 47/14EN Official Journal of the European Union 20.2.2008

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

Table 2

Routes with existing overlaps between Ryanair and Aer Lingus with market shares of the Merging Parties and all existing competitors (1)

Route Ryanair Aer Lingus Combined Existing competitors Share

Dublin-Alicante [50-60 %] [40-50 %] 100 % [0-5 %]

Dublin-Barcelona [40-50 %] [30-40 %] [70-80 %] Iberia/Clickair [20-30 %]

Dublin-Berlin [50-60 %] [40-50 %] 100 %

Dublin-Bilbao/Vitoria [50-60 %] [40-50 %] 100 %

Dublin-Birmingham [60-70 %] [30-40 %] 100 %

Dublin-Bologna [50-60 %] [40-50 %] 100 %

Dublin-Brussels [50-60 %] [40-50 %] 100 %

Dublin-Edinburgh [70-80 %] [20-30 %] 100 %

Dublin-Faro [40-50 %] [50-60 %] 100 %

Dublin-Frankfurt [40-50 %] [40-50 %] [80-90 %] Lufthansa [10-20 %]

Dublin-Glasgow [50-60 %] [30-40 %] [90-100 %] Loganair [0-10 %]

Dublin-Hamburg/Lübeck [60-70 %] [30-40 %] 100 %

Dublin-Krakow [30-40 %] [40-50 %] [70-80 %] SkyEurope [20-30 %]

Dublin-London [40-50 %] [30-40 %] [70-80 %] BMI [10-20 %]

British Airways [0-10 %]

CityJet [0-10 %]

Dublin-Lyon [30-40 %] [60-70 %] 100 %

Dublin-Madrid [20-30 %] [30-40 %] [60-70 %] Iberia [30-40 %]

Dublin-Malaga [30-40 %] [60-70 %] [90-100 %] Spanair [0-10 %]

Dublin-Manchester [70-80 %] [20-30 %] [90-100 %] Luxair [0-10 %]

Dublin-Marseille [50-60 %] [40-50 %] 100 %

Dublin-Milan [30-40 %] [60-70 %] 100 %

Dublin-Newcastle [70-80 %] [20-30 %] 100 %

Dublin-Paris [40-50 %] [30-40 %] [80-90 %] AF/CityJet [10-20 %]

Dublin-Poznan [60-70 %] [30-40 %] 100 %

Dublin-Riga [40-50 %] [20-30 %] [70-80 %] Air Baltic [20-30 %]

Dublin-Rome [40-50 %] [50-60 %] 100 %

Dublin-Salzburg [50-60 %] [40-50 %] 100 %

Dublin-Seville [50-60 %] [40-50 %] 100 %

Dublin-Tenerife [50-60 %] [40-50 %] 100 %

(1) The table does not take into account possible inclusion of the ‘dry seats’ (i.e. air tickets sold separately and not as part of the package holidays) offered by some charter airlines on some affected holiday routes. However, as the share of those ‘dry seat’ sales is insignificant, their inclusion would not change the situation. 20.2.2008 EN Official Journal of the European Union C 47/15

Route Ryanair Aer Lingus Combined Existing competitors Share

Dublin-Toulouse/Carcassonne [60-70 %] [30-40 %] 100 %

Dublin-Venice [40-50 %] [50-60 %] 100 %

Dublin-Vienna/Bratislava [20-30 %] [50-60 %] [70-80 %] SkyEurope [20-30 %]

Austrian Airlines [0-10 %]

Dublin-Warsaw [30-40 %] [30-40 %] [60-70 %] LOT [10-20 %]

Norwegian Airline [10-20 %] Shuttle

Shannon-London [50-60 %] [40-50 %] 100 %

Cork-London [50-60 %] [40-50 %] 100 %

Cork-Manchester [40-50 %] [10-20 %] [60-70 %] bmibaby [30-40 %]

Aer Arann [0-10 %]

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

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

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

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

28. Despite being a former State-owned Irish flag carrier, Aer Lingus has implemented a restructuring plan and significantly changed its business model and has repositioned itself as a ‘low-frills’ (or ‘low-cost’ or ‘low fares’) airline focused on point-to-point services on its short-haul routes. The services included in the Aer Lingus base fare are broadly in line with those included in the Ryanair base fare. Even though there continue to be some differences in the services offered by both carriers, which are also reflected in their different fare level, this does not exclude existence of effective competitive constraints between Ryanair and Aer Lingus. On the contrary, the market investigation confirmed that on the routes where both operate, each of them takes into account the fares and services offered by the other and adjust its operations and fares accordingly. Further, most of the competitors present on the overlap routes are either full-service network carriers (e.g. Lufthansa, Air France/CityJet, Iberia, BMI) or smaller regional airlines, often focusing on business customers (e.g. Loganair, Luxair or the Dublin based Aer Arann) which cannot be considered as close competitors to the parties. Finally, the customer survey has shown for the routes covered, that passengers consider the parties to be closer substitutes than other carriers. C 47/16EN Official Journal of the European Union 20.2.2008

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

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

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

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

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

33. The significant entry costs and risks relate to the fact that Irish intra-European flights are now dominated by Ryanair and Aer Lingus who have well established brands and a portfolio of a large number of routes. Competing against these two well-established brands makes, according to possible entrants, competition much more difficult than in other countries where not two well-established low-frills carriers are present with large bases. Further, there are significant shares of Irish-originating passengers on many of the overlap routes. Therefore, any new entrant would have to invest substantial amounts into marketing and promotion in Ireland. Further, the decision exhibits several examples of aggressive reaction by Ryanair against new entrants on the Irish markets. For example, easyJet tried to enter in 2005 three routes from London to three regional Irish airports. Ryanair immediately reacted by lowering fares and increasing capacities to drive easyJet away of the Irish market. A number of competing airlines thus indicated that, taking into account the limited volume of the Irish market and the investments and risks involved in establishing a presence in this market, they would have better opportunities elsewhere in Europe. 20.2.2008 EN Official Journal of the European Union C 47/17

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

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

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

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

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

Conclusion

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

Efficiency defence

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

40. Ryanair submits that these efficiencies cannot be obtained by any alternative transaction and individu- ally by the two companies to the transaction. It argues that the efficiency gains will be passed on to consumers in terms of reduced fares. It further argues that the claimed cost savings will in no way affect Aer Lingus' quality of service (which would to the contrary be improved). C 47/18EN Official Journal of the European Union 20.2.2008

41. The principles on which the Commission assesses efficiencies are set out in recital 29 of the Merger Regulation (1) and in the Commission's Horizontal Merger Guidelines (2). For the Commission to find that efficiencies counteract a merger's negative impact on consumers, they must be verifiable (i.e. reasoned, quantified and supported by internal studies and documents if necessary), must be likely to benefit consumers and could not have been achieved to a similar extent by means that are less antic- ompetitive than the proposed concentration (merger specificity). The three conditions — verifiability, merger specificity and consumer benefit — are cumulative.

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

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

VII. PROPOSED REMEDIES

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

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

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

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

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

(1) See Article 2(1)(b) and Recital 29. (2) Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings (OJ C 31, 5.2.2004, p. 5). (3) Ryanair had already submitted commitments in Phase I of the investigation on 29 November 2006 (‘Initial Phase I Commitments’), which were subsequently replaced by a revised set of commitments on 14 December 2006 (‘Modified Phase I Commitments’). 20.2.2008 EN Official Journal of the European Union C 47/19

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

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

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

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

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

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

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

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

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

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

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

— With regard to the various behavioural commitments offered by Ryanair (10 % reduction of Aer Lingus' fares, abolition of fuel surcharges, frequency freeze, maintaining separate brands), the decision notes that they do not directly address any of the identified competition problems. In addition, they raise numerous questions with regard to monitoring and enforceability. They also contain elements that would lessen, rather than strengthen, competition. C 47/20EN Official Journal of the European Union 20.2.2008

47. Following a State-of-Play meeting and subsequent additional discussions, Ryanair submitted on 1 June 2007, in draft form, a set of revised commitments. This text was provided explicitly in draft form, without signature and without complying with the necessary formal requirements. Ryanair has thus not formally submitted new commitments and the Commission was not obliged to assess them in the decision. Further, the deadline for submitting commitments according to the Implementing Regulation to the Merger Regulation had expired on 3 May 2007. Although the Commission can in exceptional circumstances accept modifications of submitted remedies even when a renewed market test is no longer possible, such commitments must resolve all identified competition problems in a clear-cut fashion. 48. However, even if it had been formally submitted, the draft modified commitments clearly would have been insufficient to address all of the identified shortcomings of the previous set of commitments. In particular, the draft modified commitments were still based primarily on slot transfers (i.e. enabling access to airport infrastructure) and did not provide any new elements which would address the other identified barriers to entry and thus enable the Commission to re-evaluate the negative results of the market test as to the likelihood of actual entry. Furthermore, the scope of the guaranteed new entry was still insufficient as the commitments only provided for an up-front new entrant with [6-10] aircraft. The draft also does not provide for the transfer of slots at all relevant destination airports, in particular not for slots at congested airports. Additional unresolved problems included, in particular, the legal uncertainty with respect to the London Heathrow slots and the unspecific criteria for the upfront-buyer.

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