The High Court has refused Aer Lingus leave to challenge a Takeover Panel ruling that a 12-month restriction on a further Ryanair offer ran from 29 August 2012.
In a judgment delivered on 26 July 2013, Mr Justice Ryan found Aer Lingus had not established substantial grounds to show that the Panel’s interpretation of the Takeover Rules was wrong or even questionable. The court therefore refused leave to bring judicial review of the Panel’s 20 May 2013 ruling.
Ryanair’s formal offer for Aer Lingus, made through its subsidiary Coinside Limited, lapsed on 29 August 2012 after the European Commission referred the proposed acquisition for an in-depth investigation. On the same day, Ryanair said it intended to make a further bid if the Commission later approved the deal, subject to the Panel’s consent.
Aer Lingus argued that the August announcement amounted to a firm intention to make an offer, so the moratorium should run from the Commission’s decision prohibiting the concentration on 27 February 2013. It also said the Panel’s approach left the airline subject to offer-related business restrictions while the moratorium was already running, and was inconsistent with the rules’ principle that an offeree must not be hindered longer than reasonable.
The Panel said the August announcement was a possible offer under Rule 2.4, not a firm-intention announcement under Rule 2.5. Ryanair’s statement was conditional on both Commission approval and Panel consent, and did not meet the requirements for a firm intention to bid, the judge concluded.
Justice Ryan held that “a firm intention to make an offer” in Rule 35.1(a) had to be read consistently with Rule 2.5. The court found the original offer lapsed on 29 August 2012, and the Panel had correctly set the moratorium to end on 29 August 2013.
The judge acknowledged that the timing could produce an unsatisfactory result for Aer Lingus, but said that did not justify giving the rule a meaning its words could not bear. He noted the Panel had power to grant waivers or derogations in exceptional circumstances. The court did not quash the ruling; it refused leave to challenge it.