by Joe O'Malley , Jeremy Erwin, Ross Magee August-14-2024 in Commercial & Business
Hayes solicitors recently acted for the Autorità Garante Della Concorrenza E Del Mercato (AGCM), Italy’s national competition authority, in proceedings brought in the High Court by Ryanair DAC and Ryanair Holdings PLC.
Background
In September 2023, in exercise of its statutory functions, the AGCM commenced an investigation into alleged anti-competitive practices being undertaken by Ryanair in Italy. The investigation primarily concerns allegations that Ryanair is abusing a dominant position in markets in the air travel sector. It is alleged it is effectively preventing travel agencies in Italy from booking Ryanair flights outside the direct sales channel, thereby harming their capacity to compete in the offering of various tourist services. The AGCM claims that this practice adversely affects competition in the marketplace and harms consumers in the process.
In circumstances where relevant evidence in relation to the investigation could only be gathered through inspections carried out in Ireland, in January 2024 the AGCM decided to utilise the cooperation mechanism contained in Article 22(1) Regulation 1/2003 and Article 24 ECN+ Directive 2019/1 by issuing a request to the Irish competition authority (the “CCPC”) for investigative assistance.
The CCPC agreed to co-operate and, on 8 March 2024, an authorised officer of the CCPC applied to Dublin District Court to obtain a search warrant, permitting the entry and search of Ryanair’s premises pursuant to section 37 Competition and Consumer Protection Act 2014.
Following the issuing of the search warrant, a “dawn raid” of Ryanair’s offices in Dublin took place on 8 March 2024. Materials relevant to the AGCM’s investigation were seized and transmitted to the AGCM.
Proceedings
On 21 March 2024, Ryanair issued proceedings against the AGCM and the CCPC seeking (1) an order quashing the search warrant (2) a declaration that the AGCM and CCPC acted unlawfully in obtaining and acting on the warrant in the course of the inspection (3) a declaration that the seized material should not have been removed from the jurisdiction and may not be used in the investigation (4) a declaration to the effect that Ryanair’s rights under the Constitution, Charter of Fundamental Rights and European Convention on Human Rights have been breached and (5) injunctive relief restraining the use and/or requiring the return or deletion of the seized material.
The AGCM issued, on 29 April 2024, a notice of motion seeking to set aside service of the Notice of Plenary Summons on the AGCM and / or dismissing the proceedings against the AGCM for want of jurisdiction. In bringing the application, the AGCM relied on two primary grounds:
- Article 1(1) of Brussels Recast Regulation did not apply to administrative matters i.e. bodies exercising a public power; and
- Under the Service Regulation, service was similarly flawed as a matter of law.
Where proceedings are being served outside of the jurisdiction, a plaintiff must have a legislative basis for doing so, or permission of the court must be sought and granted. In this case, Ryanair served the Notice of Plenary Summons on the AGCM without leave of the court and contended that Irish courts had jurisdiction by virtue of Articles 7(2) and / or 8 of the Recast Brussels Regulation. In its motion, the AGCM contended that administrative matters (acta iure imperii) such as a national competition authority acting within its statutory powers falls outside of the scope of the Recast Brussels Regulation.
Judgment
In his judgment delivered on 21 May 2024, Mr Justice Barrett held the proceedings did not come within the scope of the Brussels Recast Regulation which governs jurisdiction and the recognition and enforcement of judgments in civil and commercial matters.
The Court found that two questions arose for determination under this regulation to establish whether the Irish courts have jurisdiction; (1) if the AGCM was exercising public law powers in what it did and (2) if it was, was it doing so only in a way that no private individual could also do. In response to the two questions, the Court reached the following conclusions:
- All actions taken by the AGCM to date which Ryanair seeks to challenge are inextricably bound up with the exercise by the AGCM of its uniquely public law powers to carry out investigations commenced by it and specifically to request assistance from the CCPC under the relevant regulations.
- The actions of the AGCM of which Ryanair complain are definitively not actions which would be available to private persons or interested parties other than the national competition agency.
- At all material times the AGCM must be properly regarded as a public administrative authority exercising public law powers of investigation falling outside the scope of the ordinary legal rules applicable to relationships between private individuals.
- The uncontroverted evidence before the Court is that Ryanair’s complaints concern actions of the AGCM which are exclusively derived from the public regulatory powers granted to the AGCM as a matter of statute, and thus which are not available to other interested parties.
- To the extent that Ryanair wishes to pursue any matter against the AGCM out of actions during the investigation, Ryanair could only bring any such claim before the Italian courts, which will enjoy jurisdiction to hear and determine them in accordance with Italian law.
Conclusion
Pursuant to Order 12 Rule 26 of the Rules of the Superior Courts, the Court set aside service on the AGCM of the notice of plenary summons and dismissed the proceedings against the AGCM for want of jurisdiction.
The judgment affirms helpful Irish and EU caselaw on jurisdiction and service under the Brussels Recast Regulations. It further highlights the importance of being fully satisfied on the manner of service required by reference to the type of proceedings and how to challenge the actions of the public body exercising its administrative powers.
A full copy of the judgment can be found here. Ryanair has appealed the judgment of the High Court, and that appeal is listed for hearing in November 2024.
For further information on any of the issues discussed in this article, please contact Joe O’Malley, Jeremy Erwin or Ross Magee
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About the Authors
Joe O'Malley
Joe is Managing Partner and Head of the Commercial Litigation & Dispute Resolution team at Hayes solicitors. He handles a wide variety of commercial disputes involving high value claims, complex issues and voluminous data for financial institutions and corporate clients.
Jeremy Erwin
Jeremy specialises in insolvency, commercial litigation and dispute resolution, acting for a variety of companies and financial institutions in contract law cases, enforcement and recovery actions and in high value complex Commercial Court proceedings. Jeremy also specialises in intellectual property matters, including advising on registration and protection of trade marks and related rights and on trade mark disputes.
Ross Magee
Ross is a Solicitor in the Commercial & Business team at Hayes solicitors. He practices predominantly in insolvency, commercial litigation and dispute resolution. He acts for a variety of corporates, financial institutions, private equity funds and private individuals in contentious matters that include, insolvency; enforcement and recovery; landlord and tenant; intellectual property, defamation and other general litigation claims.