Mirta Kapural, PhD

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  Present position: Department for International Cooperation, Croatian Competition Agency.

  Main tasks include: coordinating international cooperation of the Competition Agency, especially in relations with European Commission and EU competition authorities within ECN and with ICN working groups, ICC Competition Commission, OECD.

   

   

   

  • 2016-2017 Chair of the working group for the preparation of the Law on damages claims for the breach of national and EU competition law (transposition of EU Directive 2014/104);
  • 2014-2016 Guest lecturer of Competition law at faculty of Economy and Forensic Studies in Split;
  • 2013-2017 Author of the seminar and regular lecturer on EU and national Competition law in the Public School for Civil Servants;
  • 2013 Chair of the Competition Network for European Energy Community;
  • 2012 PhD in Competition Law and Company Law, University of Zagreb, Faculty of Law, PhD Thesis: “Application of leniency institute for immunity of fines or reduction of fines in competition law“;
  • 2011-2010 guest lecturer of Company Law and Contract law at the Faculty of Economy in Zagreb;
  • Since 2009 lecturer of EU and national Competition law in the Ministry of Foreign and European Affairs for Croatian civil servants and at national and international seminars and conferences;
  • 2007 Traineeship in the European Commission, DG Competition;
  • 2006-2009 a member of the Working Groups for Negotiations with the EU, chapters “Energy”, “Competition” and “Free movement of Workers”;
  • Since 2004 employed in Croatian Competition Agency, worked as a case handler and Head of Section-market for services, deputy Head of International Cooperation Department;
  • Between August and October 2001 Governmental Representative in the UN Office for Human Rights in Geneva;
  • From 2001 until 2004 legal adviser in the Governmental Office for Human Rights with special emphasis on the international cooperation with United Nations and EU institutions;
  • 2000-2001 trainee in the European Commission, DG Environment;
  • From 1999-2001 legal adviser in the Ministry of European integration;
  • 1999 completed Masters in «Contemporary European Studies” at the University of Sussex, Sussex European Institute, Brighton, United Kingdom;
  • 1998 graduated from the Faculty of Law in Zagreb and awarded with Chancellor’s award and with the Scholarship from Croatian Government for post-graduate studies in the UK;
  • Author of several articles in EU Competition Law (Joint ventures, Cartels, Leniency, Private Enforcement and damages claims, Abuse of a dominant position, Interim Measures, Commitments, ECN, Harmonization of Croatian Competition law with EU competition law).

   

  Languages:

  • English
  • German
  • Spanish
  • French
  • Portuguese

   

  Professional interests:

  • Competition law
  • Company law
  • EU law
  • International relations

   

  CASE RYANAIR/AER LINGUS: A merger trying to become a reality and the issue of minority shareholdings

  Key words: European Commission, Ryanair, competition, competitors, merger control, prohibited merger, monopoly, minority share-holding, air transport, EU White Paper on Merger control

  Ryanair/Aer Lingus merger case represents a unique EU case of the same merger prohibited twice. Despite of all efforts of Ryanair to acquire its main competitor Aer Lingus on flights to Ireland by offering different remedies, the European Commission firmly stood on the ground that this merger should not be allowed. Ryanair notified planned concentration to the European Commission in 2006, 2009 and again in 2012, but Ryanair withdrew its notification from 2009. In other two cases, in 2007 and in 2013, the European Commission declared concentration incompatible with competition rules. This paper will firstly give short overview of the merger control in the EU and application of the Council Regulation 139/2004 (EU Merger Regulation). Then it will try to explain the reasons behind prohibition decisions of the European Commission in the Ryanair/Aer Lingus case. This was the first time that the European Commission has dealt with a proposed merger of two airlines with significant operations based at the same airport. Mainly, this merger if allowed would have led to the monopoly of two largest competitors in Ireland with around 80 % of all intra-European traffic at Dublin airport on more than 35 routes. Consequently, this would lead to reduced choice for consumers with lower quality and higher fares. In other words, if the merger had been allowed, there would have been none or very few new airlines willing and able to enter the market and to compete with joint Ryanair and Aer Lingus in their home market. The merger could have significant competition concerns since it would have eliminated the strongest competitor of Ryanair.  The remedies proposed by Ryanair including divestiture of business overlapping between two airlines, lease of certain number of slots from Ryanair, were deemed as insufficient to remove competition problems.
  There are several important elements in this case but one key point which should be emphasised is the issue of minority share-holding rights in merger cases. Both economic theory and case law suggest that non-controlling minority shareholding may also sometimes cause harm to competition. At the moment, on the European level only competition authorities in some EU Member States (Germany, United Kingdom) can take into account such competition concerns caused by minority shareholding mergers. However, the current legal basis does not give that possibility to the European Commission to address competition concerns raised only by the acquisition of minority shareholding. This is clearly shown in the present case Ryanair and Aer Lingus, the acquisition in question included public bid which precludes the implementation of the Article 101 of the Treaty on the functioning of the EU (TFEU) on prohibited agreements. Similarly, Article 102 of the TFEU regulating abuse of a dominant position could not have been applied either because Ryanair as an acquirer was not in the dominant position. The Merger Regulation 139/2004 gives the framework for testing the minority shareholdings but only for the assessment of mergers involving the undertaking which previously acquired minor shares in other undertaking. However, the Merger Regulation 139/2004 does not envisage cases of minority shareholdings which are acquired and not related to the acquisition of control within the meaning of mergers between undertakings. Hence, in order to be able to address this issue European Commission is trying to find the solution and the instruments to control minority shareholding mergers. The problem of acquisition of minority shareholdings identified in this case is reflected in the current reform of the Merger Regulation 139/2004 and the proposal of the European Commission to introduce “targeted transparency system“ which aims to target potentially anti-competitive minority shareholding if it creates competitively significant link. Hence, the central part of this paper will be dedicated to the analysis of non-controlling minority shareholdings, the reasons why it is important to establish the criteria for their review and what are the negative consequences that minority shareholdings can have. Particular attention will be given to the cumulative criteria proposed by the European Commission to establish competitively significant link including: the target of the investment is a competitor or a vertically related company; and where the shareholding acquired is around 20% or above 5% and accompanied by additional elements such as de facto blocking minority rights, a board representation, or access to commercially sensitive information of the target company.
  The analysis will aim to discover if proposed criteria is suitable, how it can be improved and the last part of the paper will try to examine if some other criteria would be better placed for the minority shareholdings acquisitions on the EU level.