The High Court has refused Ryanair’s application to strike out a competition law counterclaim brought by Romanian online travel agent Vola.ro, while ordering that liability in Ryanair’s claim against both defendants be heard first in a modular trial.
In a judgment delivered on 22 June 2020, Mr Justice Mark Sanfey said Vola must provide substantive answers to five questions about the alleged downstream market and the effects on other online travel agents and consumers. The court allowed six weeks from the date of its order for those further particulars. The judge said the parties could make submissions about whether an “unless” order should apply.
Ryanair alleges that Vola and German technology company Ypsilon.net used automated “screen scraping” to obtain flight data from Ryanair’s website without consent. It claims breach of contract and intellectual property rights, among other causes of action. Those allegations were not determined in this judgment. Ypsilon denied Ryanair’s allegations and took no substantive part in the applications considered by the court.
Vola’s counterclaim alleges that Ryanair abused a dominant position under Article 102 TFEU. Vola argues that restrictions on its ability to sell Ryanair flights would harm competition and consumers. Ryanair said the counterclaim was insufficiently particularised and relied on hypothetical harm. The judge found that Ryanair understood the broad outline of Vola’s case and that its market definitions and competition arguments should be determined at a full hearing. He also said the threatened harm was not hypothetical because Ryanair was seeking relief that Vola contended would prevent it selling the airline’s tickets.
The court did, however, find the counterclaim’s account of harm to the downstream market unclear. It directed Vola to identify the other online travel agents said to compete with Ryanair and Vola, their alleged market share, the expected effect on them if Ryanair succeeded, Vola’s share of the specific market claimed, and how preventing online travel agents from selling Ryanair tickets would distort competition and affect consumers when the tickets and related services would remain available through Ryanair.
The judge rejected Vola’s request to have its counterclaim heard first. He directed that the liability issues in Ryanair’s claim against both defendants form the first trial module. If Ryanair does not succeed on liability, the counterclaim will not arise. If it does, the court will then hear argument on whether to make orders immediately or defer them until the counterclaim is decided. The judgment did not determine liability or grant final relief on either claim. The parties were invited to make submissions within 14 days on the terms of the orders, including costs.