In considering the regulatory landscape, recent trends include an increase in inter-agency cooperation and a rise in unannounced inspections, both of which feature in the case of Ryanair DAC and Ryanair Holdings Plc v the Competition and Consumer Protection Commission and Autorità Garante della Concorrenza e del Mercato.
In this briefing we consider the May 2024 judgment of Mr Justice Barrett in the High Court of Ireland1 in which he decided that the Irish courts do not have jurisdiction in respect of proceedings brought against the Italian national competition authority, the AGCM.
Background
The plaintiffs, Ryanair, are the subject of an investigation by the AGCM.
As part of its investigation, in January 2024 the AGCM issued a request to the CCPC for investigative assistance under Article 22(1) of Regulation 1/20032 and Article 24 of the ECN+ directive3 in circumstances where evidence relevant to its investigation could only be obtained in Ireland. Article 22(1) provides that the competition authority of a Member State may, in its own territory, carry out any inspection or other fact-finding measure under its national law on behalf and for the account of the competition authority of another Member State to establish whether there has been an infringement of Article 101 or Article 102 of the Treaty.
On foot of the request from the AGCM, the CCPC obtained a warrant from the Dublin Metropolitan District Court on 8 March 2024 and, on the same day, conducted an inspection at the Ryanair headquarters in Dublin. The team carrying out the inspection included six members of AGCM staff who, Ryanair accepted, were acting in their capacity as authorised officers of the CCPC. The inspection involved physical searches of the offices and desks of Ryanair employees, electronic searches of Ryanair staff laptops and interactions between Ryanair, its lawyers and the officers conducting the inspection. On completion of the inspection, the material seized was taken to Italy by the AGCM for use in its investigation.
The proceedings
Ryanair identified a number of issues with the manner in which the inspection was carried out and issued proceedings against the CCPC and the AGCM seeking, inter alia:
- An order of certiorari quashing the search warrant of 8 March 2024
- A declaration that the Defendant(s) acted wrongfully, contrary to the Competition and Consumer Protection Act 2014...and/or Regulation No. 1 of 2003
- A declaration that the whole or part of all the material seized...is tainted by illegality and inadmissible, ought not to have been removed from the jurisdiction and/or ought not to be used in any forum
- A declaration and/or order that some of the seized data are “privileged legal material”
Ryanair also sought an injunction to prevent the defendants from accessing, reviewing or making any use of the seized data.
The jurisdiction challenge
The AGCM applied to set aside the service on it of the plenary summons in the proceedings and sought to have the proceedings against it dismissed for want of jurisdiction of the Irish courts.
As regards the challenge to the search warrant and the question of whether or not privilege attaches to certain of the seized material, the AGCM accepted that these were issues as between Ryanair and the CCPC and agreed to be bound by the outcome of those disputes as determined by the High Court of Ireland.
In respect of the balance of the issues in the proceedings against the AGCM, the Court had to consider Article 1(1) of the Brussels Regulation Recast4 which provides:
In particular, the Court considered whether the proceedings concerned “revenue, customs or administrative matters or [to] the liability of the State for acts and omissions in the exercise of State authority”, in which case they would be outside of the scope of the Brussels Regulation Recast and the Irish courts would not have jurisdiction.
The AGCM submitted that all actions taken by the AGCM and which Ryanair sought to challenge in the proceedings, and all the reliefs sought from the Irish courts in respect of the AGCM's actions, were inextricably bound up with the exercise by the AGCM of its uniquely public law powers of investigation and, specifically, the power to request assistance from the CCPC under Regulation 1/2003 and the ECN+ Directive. Accordingly, the proceedings came within the exception set out in Article 1(1) of the Brussels Regulation Recast. Ryanair would be permitted to bring any claims against the AGCM before the Italian courts, which the AGCM said has jurisdiction to hear and determine the claims in accordance with Italian law.
As against this, Ryanair made a number of arguments, including that the proceedings were concerned with “torts and other wrongs” rather than a public law challenge and so came within the scope of “civil and commercial matters” in Article 1(1); it was not challenging the AGCM's exercise of a public power, rather it was challenging the functions carried out by the AGCM in Ireland; and that certain provisions of Irish legislation applied to any person who had possession of the seized documents.
Consideration of relevant authorities
Judge Barrett considered a number of authorities which he viewed as relevant to the question of jurisdiction, including Case C-645/11 Sapir and Ors and Case C-98/22 Eurelec Trading, which latter case he considered had a factual matrix which was in many respects analogous to the current case. The principles arising from these decisions, he held, are the applicable principles and did not seem to be disputed by Ryanair.
In Sapir, which considered the Brussels I Regulation5, the CJEU determined that although certain actions between a public authority and a person governed by private law may come within the scope of Brussels I, that is not the case where the public authority is acting in the exercise of its public powers.
Eurlec concerned an investigation by the Minister for the Economy and Finance in France, on foot of which the Minister brought proceedings against Eurlec and others in France in respect of alleged restrictive practices implemented in Belgium by Eurelec in relation to suppliers established in France. The companies being sued argued that the French courts lacked jurisdiction to hear the action in so far as it was directed against companies established in Belgium, pursuant to the provisions of the Brussels Regulation Recast, on the basis that the action did not concern “civil and commercial matters”. Arising from a preliminary reference, the CJEU found that by bringing the action at issue, the Minister for the Economy and Finance was acting “in the exercise of State authority (acta iure imperii)” within the meaning of Article 1(1) of the Brussels Regulation Recast, so the action was not covered by the concept of “civil and commercial matters”.
Having regard to the case law, and as he had previously outlined in Colclough v ACCA6, Judge Barrett noted that in order to determine whether an act is an act iure imperii and, therefore, not subject to the Brussels Regulation Recast, regard must be had, first, to whether any of the parties to the legal relationship are a public authority, and, second, to the origin and the basis of the action brought, specifically to whether a public authority has exercised powers going beyond those existing, or which have no equivalent, in relationships between private individuals.
The decision
Applying the above principles to the case at hand, the Court determined as follows:
The AGCM's actions were inextricably bound up with the exercise by the AGCM of its uniquely public law powers to carry out an investigation, which actions would not be available to private persons or interested parties other than the national competition agency. Ryanair, he found, had not engaged with the applicable test as to jurisdiction.
Accordingly, the Court set aside the service on the AGCM of the notice of plenary summons pursuant to Order 12 rule 26 of the Rules of the Superior Courts and dismissed the proceedings as against the AGCM for want of jurisdiction on the part of the Irish courts.
Commentary
In circumstances where a number of regulatory regimes provide for cooperation between Member State authorities in carrying out investigations and inspections, this decision will require consideration by anyone seeking to challenge the exercise of powers of investigation by Irish authorities in support of an investigation being conducted by an authority in another Member State.
As outlined in the decision, the challenge to the search warrant and the question of legal professional privilege were accepted by the AGCM as being issues between Ryanair and the CCPC and it remains to be seen if those issues will come for consideration by the High Court. The AGCM has agreed that, if the warrant is found to have been unlawfully granted or executed, it will hand back the documents seized and, regarding privilege, that it will abide by whatever the court decides, subject to the right to review any undertakings which may be sought. See our briefing here for a review of recent developments in respect of Investigations, Dawn Raids, Legal Professional Privilege and Privacy.
Footnotes
1. [2024] IEHC 307
2. Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty
3. Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market
4. Regulation (EU) No.1215/2012 of the European Parliament and of the Council of 12th December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters
5. Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters
6. [2018] IEHC 85
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.