The last few months have witnessed new episodes in the long-running litigation concerning whether or not the minority non-controlling stake held by Ryanair in Aer Lingus can, or should, be examined under merger control provisions. This ongoing saga has re-triggered an EU-wide debate on the nature of merger control at both European Commission and Member State levels, and whether there is an "enforcement gap" that needs to be plugged. Early indications are that the Commission is taking this seriously, and is considering an amendment to the Merger Regulation to capture minority stake acquisitions. Such a step could have far-reaching consequences for international business.
This article will outline the issues raised by the Ryanair/Aer Lingus litigation, before looking to the wider debate on the notion of "control" for the purposes of the Merger Regulation. It will also consider some potential options for reform and touch on the consequences of these various approaches.