High Court refuses adjournment of Irish competition proceedings pending unresolved Italian appeals.

THE HIGH COURT [2025] IEHC 536 [2024 No. 1487 P]

BETWEEN

RYANAIR DAC AND RYANAIR HOLDINGS PLC

PLAINTIFFS

AND

COMPETITION AND CONSUMER PROTECTION COMMISSION AND AUTORITÀ GARANTE DELLA CONCORRENZA E DEL MERCATO

DEFENDANTS

JUDGMENT of Mr Justice Max Barrett delivered on 31st July 2025.

Summary

In this judgment I explain why I will not make an order pursuant to the jurisdiction of the court adjourning these proceedings generally, pending the conclusion of certain appeals in Italy.

1. By notice of motion of 1st July 2025, the Competition and Consumer Protection Commission seeks, inter alia, an order pursuant to the jurisdiction of the court adjourning these proceedings generally, pending the conclusion of certain appeals in Italy.

2. These proceedings were the subject of a previous judgment by me (see [2024] IEHC 307) which was upheld on appeal.

3. Rather than state the facts in detail, I refer the reader to my previous judgment. I have also appended to this judgment a (slightly amended) chronology of key events that have preceded the present application. With the leave of the court the chronology was supplied by Ryanair following on the hearing of this application, a briefer chronology having been furnished in court by the Commission when the application was at hearing.

4. The recitation of the background facts in my previous judgment and the comprehensive nature of the chronology appended hereto enables me to summarise the present dispute between the parties in relatively brief terms.

5. In Ireland, Ryanair wishes to proceed with its Inspection Motion and for the Commission’s related Strike-Out Motion likewise to be heard in this jurisdiction.

6. Separately, in Italy, Ryanair has brought what is known as the Access Application and Annulment Application against the Italian Competition Authority. Ryanair succeeded at first instance in that application, failed on appeal and the results of an onward appeal seem likely to issue in mid-2026.

7. By contrast the Inspection Motion and Strike-Out Motion will be heard and adjudicated upon in Ireland during the Michaelmas Term 2025. There is a significance to this timing to which I return later below.

8. The Commission sees the Italian proceedings as involving what counsel for the Commission referred to at the hearing as a ‘precursor’ application, in the sense that if the Italian courts find that the decision of the Italian Competition Authority (the AGCM)

to proceed against Ryanair was legally flawed that will effectively bring an end to the proceedings between the parties.

9. So it sees the continuation of the Strike-Out Motion as likely to involve a waste of costs if the AGCM succeeds in Italy. Respectfully, I am not persuaded by that logic. If Ryanair succeeds in Italy that renders the Commission’s point moot. If Ryanair loses in Italy, it still maintains that it has been injured in Ireland by the manner in which the search warrant was obtained in this jurisdiction and that will continue as a live matter to be adjudicated upon. (I note in passing that the Irish and Italian courts are ad idem that the validity of the search warrant – and hence the Inspection Motion – is a matter solely for the Irish courts).

10. The net effect of the foregoing is that whether Ryanair wins or loses in the Italian proceedings (to which the Commission is not party) the Inspection Motion will fall to be heard in these proceedings (to which the Commission is party). So I do not see how the course of the Italian proceedings affects the Commission from a costs perspective.

11. There is an additional problem for Ryanair if I accede to the Commission’s present application. That problem is as follows.

12. The AGCM has indicated that it will reach a decision in its investigation of Ryanair in December 2025. So if I were to accede to the Commission’s present application that could result in an injustice to Ryanair. If Ryanair succeeds in its challenge to the warrant, the AGCM has indicated that it will return the materials seized from Ryanair in March 2024. That would effectively end the investigation that it is presently intended will be the subject of the end-of-year report.

13. By contrast, if I do not allow the Inspection Motion to proceed, Ryanair could find itself in a position whereby the AGCM would proceed to an adverse decision and the Inspection Motion and the Italian proceedings would proceed to conclusion thereafter.

So Ryanair would suffer the potential embarrassment of being fined by the AGCM and all the associated media attention, without either (in Ireland) its Inspection Motion having been heard or (in Italy) the Italian proceedings having come to conclusion.

14. As against all this, if I allow the Inspection Motion (and the Strike-Out Motion) to come on in the Michaelmas Term and judgment is given before 31st December (which as the judge who will be hearing the case I can assure the parties will almost certainly be the case) then how does the Commission stand? If it wins it will, almost certainly, retrieve its costs from Ryanair and if it loses it almost certainly will not. (I believe that I can factor into my consideration the fact that Ryanair is a large and successful enterprise, making it a good ‘mark’ for costs in the event that it is unsuccessful in Ireland. I do not understand this to be disputed).

15. As to the costs of the Italian proceedings, the Commission is not a party to those proceedings so it may be at some stage in mid-2026 that the Italian courts will or will not uphold Ryanair’s appeal. But that will not impact the Commission costs-wise.

16. In short, I see that Ryanair has a great deal to lose if the Inspection Motion does not proceed as intended in the Michaelmas Term. The Commission is not really affected whether the motions are heard in the Michaelmas Term or (best case scenario) in the Hilary Term of next year or (more likely perhaps) the Michaelmas Term of 2026, if the Italian proceedings conclude in mid-2026.

17. To the extent that there is any suggestion that there would be an overlap of issues between the Irish and Italian proceedings, I respectfully note that I have not been furnished with any affidavit from an Italian lawyer (for the Commission) indicating this to be so. Cases are decided on evidence not on supposition. Absent such an affidavit, I cannot conclude on the balance of probabilities that such an overlap presents.

18. I respectfully consider, and any fair reading of the attached chronology will in any event show, that Ryanair has not, to use a colloquialism, ‘blown hot and cold’ in terms of the continuing with these proceedings. At all times it has behaved in a manner that is coherent and comprehensible in a constantly evolving situation. This is not a situation where Ryanair, to suit itself, has sought one thing at one time and one thing at another.

19. In terms of case law, the Commission has sought to rely, inter alia, on, e.g., the decision of McDonald J. in Condensed Aminodihydrothiazine Derivative & the Patents Act 1992 [2018] IEHC 467. That case and related cases to which I was referred concerned what to do when there are revocation proceedings afoot in Ireland and contemporaneous and related opposition proceedings before the European Patent Office. I do not see that that case law is relevant to the facts at hand. Even if it were, I would in any event retain an ultimate discretion on how to proceed in any one case and it should be clear from the

factors and timings considered above how I consider my discretion on the facts now before me.

20. That leaves me with what was referred to at the hearing of this application as the ‘Kalix/Avoncore’ line of authorities, this being a shorthand reference to the decisions in Kalix Fund v. HSBC Institutional Trust Services (Ireland) Ltd [2010] 2 I.R. 581 (HC), as applied in Avoncore Ltd & Anor. v. Leeson Motors Ltd & Ors [2021] IEHC 163. The facts of those cases are not quite on a par to those presenting here, given the international dimension to the case at hand. Even so, I consider them to be helpful in deciding this application.

21. I refer below to para.29 of the judgment of McDonald J and insert certain observations of relevance to this case:

‘29. The principles which emerge from the decision of Clarke J. in Kalix Fund Ltd v. HSBC Institutional Trust Services (Ireland) Ltd [2010] 2 I.R. 581 can be summarised as follows:-

(a) The court has a broad power to give directions for the conduct of proceedings entered in the Commercial List. O. 63A, r. 5 makes this clear. Under that rule, the court can give directions “as appear convenient for the determination of proceedings in a manner which is just, expeditious and likely to minimise the costs of those proceedings”;

[Here, it is the inherent jurisdiction of the court that is being relied upon.]

(b) The court has an inherent power to stay proceedings in a range of different circumstances. For present purposes, what is relevant is that the court has the power to stay one set of proceedings until another related case has been determined. A stay of this kind is, in essence, a procedural direction to the effect that no further steps should be taken in one set of proceedings until some other proceedings, or set of proceedings, have been heard and determined;

(c) In ordering its business, the court has a discretion to ensure that scarce court resources and the resources of parties to litigation are not inappropriately wasted by an unnecessary duplication of litigation. In addition, it is important that measures are taken to minimise the risk of any inconsistent determinations arising from different proceedings. For the latter reason, cases can be linked with a view to ensuring that a particular series of cases (which share common factors) are assigned to a single judge who will determine all relevant issues across the range of cases concerned;

[Fundamentally, there is no way in this case of avoiding conclusions that if not quite contrary may go each way for Ryanair (as the only party common to both sets of proceedings). However, that is in different cases on different matters in different countries. That is something which happens every day. Here, I may decide that the warrant was/was not validly issued. Separately, the Italian courts may decide that there is a flaw in how the AGCM went about the proceedings as a matter of Italian law.

Those will be separate decisions in separate proceedings between different parties (albeit with Ryanair as a common party) which may or may not feed into how the other proceedings proceed. This is not like a revocation/opposition case where one would have conflicting decisions as to the validity of a patent which, to put matters mildly, would be less than desirable. So I do not see how court resources and the resources of parties to litigation would inappropriately be wasted by any unnecessary duplication of litigation, not least though not only as, on the basis of the evidence before me, I do not see that there is undue duplication. In fact the only party that seems to be prejudiced if at all by any duplication is Ryanair and these are its proceedings and it is desirous that its proceedings should be allowed to proceed.]

(d) As part of its power to manage the conduct of a series of cases in which there is either a significant factual or legal overlap, the court should aim to bring about a just and expeditious trial while, at the same time, seeking to minimise costs and to ensure that scarce court resources are not wasted;

[For the reasons identified above, I consider that there is no adverse consequence for either party by allowing the Irish proceedings now to proceed. If anything, if Ryanair succeeds in its Inspection Motion (and I have no view in this regard), (i) that may yet yield a situation – I do not know if it will – in which it no longer matters how the Italian proceedings are decided, (ii) it would enable Ryanair to avoid what would then be the clearly adverse event for it of the AGCM deciding a competition law matter against Ryanair on the basis of materials which it would then be clear it ought never to have had. If Ryanair loses the Inspection Motion and the Strike-Out Motion the Italian proceedings will still proceed. And if Ryanair loses in the Irish proceedings then, unless there are unusual circumstances of which I am presently unaware, the Commission will receive an order for costs in its favour against a well-resourced party.]

(e) Among the factors to be borne in mind in assessing how a series of cases are to be managed are the following:-

(i) The fact that each individual plaintiff is entitled to have the proceedings determined in an expeditious manner “subject only to ensuring that there is no disproportionate added expense or drain on court time imposed”;

[Respectfully, it seems to me from the tenor of the submissions made by the Commission that sight of this important factor may have been somewhat lost by it. Ryanair is entitled to have the present proceedings in an expeditious manner, subject to the proviso identified by McDonald J., and it will be clear from what I have already stated that I do not see that by allowing the Irish proceedings now to continue there would be disproportionate added expense or a drain on court time.]

(ii) Consideration should be given as to the extent to which the first case to be tried is likely to bind all other cases in whole or in part.

[The decisions of the Italian courts are not binding on the Irish courts and vice versa.]

(iii) It is important to ensure that any measures adopted which have the effect of preventing a case from progressing in the ordinary way must be no more than is necessary and proportionate to achieve the end of preventing unnecessary expense or use of court time.

[I do not intend to order any measures that would prevent these proceedings from progressing in the ordinary way.]

(f) There is no reason, in principle, why a number of cases could not come to trial at the same time.

Furthermore, in the context of a sequenced trial of all of the cases, there is no reason why the issues which arise in the various cases could not be tried in a logical way with only those parties who had a logical and legitimate interest in the particular set of issues in question, having an entitlement to be heard in respect of those issues.’

[Not relevant here.]

22. For the reasons stated, I decline to accede to the Commission’s application.

Chronology

Key: GREEN = Italian developments Date Description

23 May 2023 Final court-ordered expert report filed in two cases before Court of Appeal of Milan concluding Ryanair’s business model is not anti-competitive.

14 September 2023 AGCM opens main investigation into Ryanair DAC in Italy.

31 October 2023 AGCM issues the first Request for Information (“RFI”). November 2023 AGCM approaches CCPC in relation to possible inspection in (unspecified date) Dublin.

8 December 2023 Ryanair replies to first RFI.

14 December 2023 AGCM issues second RFI.

18 December 2023 Ryanair replies to second RFI.

16 January 2024 AGCM extends main investigation to Ryanair Holdings plc.

1 February 2024 AGCM issues third RFI.

13 February 2024 Two judgments from Court of Appeal of Milan finding no infringement of competition law by Ryanair.

22 February 2024 Ryanair replies to third RFI.

27 February 2025 CCPC receives formal Request for Assistance from AGCM.

8 March 2024 CCPC obtains and executes search warrant from District Court.

AGCM leaves jurisdiction with seized documents.

21 March 2024 Ryanair issues Irish Proceedings.

5 April 2024 AGCM enters conditional appearance.

29 April 2024 AGCM issues motion challenging jurisdiction (the “Jurisdiction Motion”).

16 May 2024 Hearing of Jurisdiction Motion.

20 May 2024 Ryanair issues proceedings in Italy: (1) Access Application; (2) Annulment Application; (3) Application for Injunctive Relief .

21 May 2024 Judgment delivered by High Court in Jurisdiction Motion.

AGCM accesses the documents.

22 May 2024 Italian court grants injunction preventing AGCM from accessing or using the seized documents.

26 June 2024 Ryanair issues Notice to Produce the Request for Assistance.

19 July 2024 High Court grants leave for Ryanair to issue motion to produce for inspection the Request for Assistance (the “Inspection Motion”) and motion to cross-examine

Date Description (the “Motion to Cross-Examine”) and lists the motions for hearing on 31 July 2024.

24 July 2024 Ryanair issues Inspection Motion and Motion to Cross-Examine.

25 July 2024 Hearing on 31 July adjourned due to necessary change of counsel.

6 August 2024 Ryanair delivers original Statement of Claim.

14 August 2024 Ryanair delivers amended Statement of Claim.

11 September 2024 Arthur Cox (AC) writes to Bird and Bird (B&B) explaining that the Italian Courts ordered that the AGCM deliver a redacted version of the Formal Request for Assistance by September 2024 but that the AGCM had brought an appeal of that

decision (listed for 9 October 2024). AC also seeks to agree dates for the parties regarding directions in the re-listing of the Inspection Motion and Motion to Cross- Examine.

12 September 2024 B&B replies to AC querying the appropriateness of the Irish proceedings proceeding before the Italian proceedings.

13 September 2024 AC responds to B&B disagreeing with the contention in relation to the appropriateness of the Irish Court ruling on the disclosure of the Request for Assistance.

17 September 2024 B&B writes to AC stating it was “not our client’s intention to vacate the hearing dates. Rather the intention behind our letter dated 12 September was to put on record recent developments and inform you of our client’s view that the matter clearly needs to be brought before the court so that it can be appraised of and consider the developments and issue4s in these proceedings.”

19 September 2024 High Court lists all motions for 16 October 2024 and grants the CCPC leave to issue the motion to strike-out elements of the Statement of Claim (the “Strike-Out Motion”)

26 September 2024 CCPC issues Strike-Out Motion.

9 October 2024 Appeal of decision to disclose Request for Assistance due for hearing before TAR Lazio but put back to 19 February 2025.

Date Description

16 October 2024 High Court adjourns Proceedings to 20 February 2025, i.e. the day after the hearing of the TAR Lazio in Italy on 19 February 2025 in circumstances where judgments to date had been delivered on the same day as the hearing.

28 November 2024 Italian Council of State hears the appeal of the interim measures.

29 November 2024 Italian Council of State lifts the injunctive relief.

11 December 2024 AGCM postpones deadline for final report in its investigation to 31 December 2025.

11 December 2024 AC writes to B&B and Hayes solicitors (for the AGCM) requesting that in light of the injunction being lifted that the AGCM gives an undertaking not to review the document until the Irish Proceedings are concluded and return the documents if Ryanair succeeds in the warrant challenge in Ireland.

12 December 2024 Hayes responds to AC’s letter confirming that the AGCM would return the documents if Ryanair succeeds in the warrant challenge in Ireland but refuses to not access the documents in the interim.

31 January 2025 Court of Appeal delivers its judgment (against Ryanair) in its appeal of the Jurisdiction Motion.

11 February 2025 AGCM, relying on the seized documents, opens new proceedings against Ryanair in relation to an alleged failure to produce a document (the “New Investigation”).

19 February 2025 Hearing before TAR Lazio in the Access Application and Annulment Application – judgment reserved.

19 February 2025 Listing on 20 February 2025 in the Irish Proceedings is adjourned administratively until 20 March 2025.

31 March 2025 Ryanair files its observations in relation to the AGCM’s New Investigation.

10 April 2025 High Court adjourns Proceedings until 22 May 2025 as TAR Lazio had not yet delivered its judgments.

24 April 2025 TAR Lazio issues its judgment in the Access Application.

2 May 2025 TAR Lazio issues its judgment in the Annulment Application.

14 May 2025 AGCM serves its Statement of Objections in its New Investigation.

21 May 2025 AC writes to B&B explaining that the proceedings in Ireland should be progressed, in particular the Inspection Motion and Motion to Strike-Out.

Date Description

22 May 2025 The parties agree directions in advance of the High Court listing which are ordered by the Court. The Court lists the matter for mention the following Thursday, 29 May 2025.

27 May 2025 AC writes to B&B confirming Ryanair’s intention to appeal the decision of the TAR Lazio in respect of the Access Application and calls upon the CCPC to confirm that the Request for Assistance does not contain any reason as to why the search of Ryanair’s offices was necessary or proportionate.

28 May 2025 B&B responds to AC’s letter asking for confirmation of Ryanair’s position in relation to the judgment in the Access Application but remains silent on the question of whether the Request for Assistance does not contain any reason as to why the search of Ryanair’s offices was necessary or proportionate.

28 May 2025 AC responds to B&B confirming that Ryanair will appeal the TAR Lazio’s decision regarding the Annulment Application and delivers an Affidavit of counsel for Ryanair in Italy which explains, inter alia, the substantive differences between the appeals in Italy and the proceedings and motions in Ireland.

29 May 2025 For mention before the High Court. The Court grants the CCPC leave to deliver its affidavit by 17 June 2025 and lists the Proceedings for mention on 19 June 2025.

17 June 2025 CCPC delivers the replying affidavit of the AGCM’s Head of Litigation.

19 June 2025 For mention before the High Court. It grants the CCPC liberty to issue the motion to adjourn and lists the motion for hearing on 17 July 2025.

21 June 2025 Ryanair files its reply to the Statement of Objections in the AGCM’s New Investigation.

1 July 2025 CCPC issues its motion to adjourn and delivers its grounding affidavit and legal submissions.

1 July 2025 Hearing takes place in the AGCM’s New Investigation.

10 July 2025 Ryanair delivers its replying affidavit and legal submissions in motion to adjourn.

17 July 2025 Hearing of motion to adjourn.

24 July 2025 Deadline for appeal of Annulment Application Judgment.

13 August 2025 Statutory deadline for decision in AGCM’s New Investigation (with possible monetary fine and reputational damage).

2 September 2025 Deadline for appeal of Annulment Application Judgment.

Date Description

31 December 2025 AGCM deadline to deliver final report in the main investigation.

Mid 2026 Likely timing for judgments in appeals of the Access and Annulment Applications.