About this case:

• Citation:
  [2025] IECA 16
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice Senan Allen

Delivering judgment for the Court of Appeal, Mr Justice Senan Allen determined that Ryanair’s claims were claims “in respect of the liability of the Italian State for acts and omissions in the exercise of Italian State authority (acta iure imperii)” and as such, the court had no jurisdiction to hear and determine the proceedings.

Background

In 2024, the Italian competition authority Autorità Garante Della Concorrenza e del Mercato (AGCM) requested investigative assistance from the Irish Competition and Consumer Protection Commission (CCPC) in the course of its investigation into complaints that Ryanair was abusing its dominant position in several markets in the air transport sector by hindering sales of Ryanair flights by travel agencies in Italy.

On 8 March 2024, the CCPC obtained a warrant from the District Court to enter and search Ryanair’s offices in Swords, Co Dublin. Later that day, 35 CCPC officers entered Ryanair’s offices unannounced to carry out the inspection, copying a variety of material determined to be relevant and providing that material to AGCM officers.

Ryanair alleged that it fully cooperated with the AGCM’s investigation and that there was no justification for its request for investigative assistance, that there was a failure to disclose all relevant information to the District Court and that the search and seizure of material should have never taken place.

The High Court

Ryanair issued proceedings against the CCPC and the AGCM seeking orders of certiorari, declarations as to breaches of its rights under Irish and EU law, damages and injunctions relating to the seized material. 

Its plenary summons was endorsed with a statement that inter alia the court had power and jurisdiction to hear and determine the claim under the provisions of European Regulation (EU) No. 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (recast) (Brussels I Recast) and in particular pursuant to Articles 7(2) and/or 8 thereof.

AGCM applied for orders setting aside the service on it of the notice of plenary summons and dismissing or striking out the proceedings for want of prosecution.

Mr Justice Max Barrett identified the central question before him as being whether the proceedings were civil or commercial matters engaging the jurisdiction of the court, or whether they concerned revenue, customs or administrative matters or the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii), the latter of which are excluded from Brussels I Recast by Article 1(1) and so do not engage the special jurisdiction of the court.

The judge accepted AGCM’s submissions that all of the actions taken by the AGCM and all of the reliefs claims against it were inextricably bound up in the exercise by the AGCM of its public law powers, and that the actions of the AGCM were not actions which would have been available to a private person or interested party other than a national competition agency.

The High Court determined that Ryanair’s claims against the AGCM did not arise out of civil or commercial matters but out of AGCM’s exercise of public law powers which were excluded from Brussels I Recast, and dismissed the action against AGCM.

Ryanair appealed to the Court of Appeal.

The Court of Appeal

Mr Justice Allen considered that the central tenet of Ryanair’s appeal was that the High Court failed to recognise the difference between an action by or against a state authority, which is not excluded by Article 1(1) of Brussels I Recast, and an action arising out of the exercise by a state authority of the authority of the state, remarking: “With no disrespect, this is not only wrong but without foundation.”

In this regard, the judge highlighted that Ryanair in its proceedings challenged “a request by the AGCM, the exercise of a uniquely public law power, for assistance with an investigation which it was conducting in the exercise of uniquely public law powers, into complaints of alleged anti-competitive behaviour”.

Accepting that certain of the remedies claimed were such as could be claimed in private law litigation against a person governed by private law, the court noted that “neither the manner in which the case is pleaded nor the formulation of the reliefs or remedies claimed is reliable indicator of the substance of dispute”.

Mr Justice Allen summarised that the substance of the action as against AGCM is a challenge to its request to the Irish competition authority for assistance with an investigation being conducted in Italy by the AGCM in the exercise of public law powers conferred by Italian law, and a challenge to the application for a search warrant which was not available to a private entity.

Having regard to Case C-49/12 Sunico, the Court of Appeal considered that the “elements which characterise the legal relationships” between Ryanair and the AGCM were that “Ryanair is a private law entity which — rightly or wrongly — is the subject of an investigation by a public law authority using public law powers which — on any view — are exceptional powers by comparison with the rules applicable to relationships between persons governed by private law”.

The court also considered Ryanair’s contention that the High Court should have referred a question concerning its right to an effective remedy to the European Court of Justice pursuant to Article 267 of the Treaty on the Functioning of the European Union (TFEU), finding that the proposed question was “hopelessly jumbled” and that a newly proposed question in relation to Directive 2014/104/EU (the Damages Directive) “failed to distinguish between remedies and jurisdiction”.

Conclusion

Accordingly, the Court of Appeal determined that it was unnecessary to refer any question to the ECJ, and dismissed the appeal and affirmed the order of the High Court.

Ryanair DAC & Anor v The Competition and Consumer Protection Commission & Anor [2025] IECA 16