THE BACKGROUND TO THE COMPLAINT

1. The Merger Regulation[1] empowers the European Commission to examine proposed mergers surpassing certain thresholds, in order to verify that they are compatible with the common market. To this end, certain proposed mergers must be notified to the European Commission before they are implemented.

2. The complainant represents an airline, Ryanair, with its corporate head office in Dublin, Ireland. On 30 October 2006, Ryanair notified its plans to merge with Aer Lingus, another airline based in Dublin (Case M.4439 Ryanair-Aer Lingus). On 20 December 2006, after an initial review of the proposed merger, the Commission, in accordance with Article 6(1)(c) of the Merger Regulation, opened an in-depth inquiry into the proposed merger. After completing its in-depth inquiry, the Commission declared, by decision dated 27 June 2007, that the proposed merger would not be compatible with the common market.

THE SUBJECT MATTER OF THE INQUIRY

3. The complainant submitted a complaint to the European Ombudsman on 11 May 2007. The Ombudsman understood the complainant to allege, in summary, that the European Commission breached its obligation to protect the confidentiality of highly sensitive information which Ryanair provided the Commission with during its inquiry into the proposed merger. In support of this allegation, the complainant argued that the Commission improperly disclosed to third parties highly sensitive information concerning Ryanair. Specifically, the complainant argued that the Commission:

(i) improperly disclosed the so-called "remedies" document;

(ii) improperly disclosed the Statement of Objections to the press;

(iii) improperly transmitted to Aer Lingus Ryanair's response to the Statement of Objections;

(iv) improperly disclosed to the press details of a meeting between the Commission and Ryanair.

4. The Ombudsman understood the complainant to claim, in summary, that the Commission should take the necessary measures to protect the confidentiality of Ryanair's highly sensitive information.

5. In order to fully clarify the issues raised by the complaint, the Ombudsman asked the Commission, in his letter opening the inquiry, to reply to a number of specific questions[2].

THE INQUIRY

6. The complaint was submitted to the Ombudsman on 11 May 2007. On 21 June 2007, the Ombudsman opened an inquiry and forwarded the complaint to the Commission. The Ombudsman sent additional letters on 27 June 2007 and 12 July 2007 to the Commission. The Commission sent its opinion to the Ombudsman on 31 October 2007. The complainant sent his observations on 29 February 2008.

7. After carefully considering the arguments put forward in the Commission's opinion and the complainant's observations, it appeared that further inquiries were necessary. On 7 October 2008, the Ombudsman sent a letter to the Commission requesting that it provide him with a further opinion in relation to a number of questions he had posed[3]. The Ombudsman also requested the Commission to include with its opinion its letter to Aer Lingus dated 6 December 2006 and Aer Lingus' response of 8 December 2006.

8. On 19 January 2009, the Commission sent its reply to the Ombudsman. The opinion was forwarded to the complainant with an invitation to make observations. The complainant submitted his observations on 17 February 2009.

THE OMBUDSMAN'S ANALYSIS AND CONCLUSIONS

A. Preliminary Remarks

9. On 10 September 2007 Ryanair submitted an application to the Court of First Instance requesting the annulment of the Commission's decision of 27 June 2007.

10. In its opinion to the Ombudsman, the Commission noted that the application is limited to substantive issues and that the applicant does not raise any procedural arguments. In the Commission's view, the issues of alleged maladministration raised in the present complaint to the Ombudsman are not covered by the appeal.

11. The Ombudsman notes that Article 1(3) of the Ombudsman's Statute states that the Ombudsman may not intervene in cases before courts, or question the soundness of a court's ruling. The Ombudsman shares the Commission's view that if specific alleged instances of maladministration are not covered by an application before a court, Article 1(3) of the Ombudsman's Statute will not apply.

12. On 12 February 2008, counsel for Aer Lingus requested the Ombudsman to allow Aer Lingus to "be included in [the present] proceedings" before the Ombudsman. In this context, counsel for Aer Lingus stated that Aer Lingus may have information which may be important in the context of the Ombudsman's inquiry.

13. The Ombudsman replied to counsel for Aer Lingus stating that neither the Ombudsman's Statute, nor the Ombudsman's Implementing Provisions, foresee the possibility of a third party "intervening" in an inquiry of the Ombudsman. As regards the statement that Aer Lingus may have information which may be important in the context of the present inquiry, the Ombudsman stated that, in the event Aer Lingus has information which may be useful as regards the evaluation of the Commission's behaviour, it has the following options.

1. If it considers that such information may demonstrate that the Commission has not infringed principles of good administration, it may consider forwarding such information to the Commission, which is free to decide on the merits of using such information to explain better its position to the Ombudsman.
2. If it is of the view that such information may demonstrate that the Commission has infringed principles of good administration, it may consider submitting a complaint to the Ombudsman.

B. The allegation that the Commission breached its obligation to protect the confidentiality of highly sensitive information which Ryanair provided to the Commission

14. The complainant states that Ryanair submitted highly sensitive information to the Commission in the context of the Commission's examination of the merger notification. The complainant argues that there were numerous and serious breaches of confidentiality by the Commission in relation to this information. The Ombudsman will examine each of these aspects of the allegation separately.

(i) Alleged disclosure of the "remedies" document

Arguments presented to the Ombudsman

15. The complainant states that, on 29 November 2006, in the context of the Phase I inquiry[4], Ryanair submitted a "non-confidential" version of the "remedies document"[5] to the Commission. The Commission provided Aer Lingus and the Irish Department of Transport with a copy of the "non-confidential" version of the remedies document at approximately 1pm on 30 November 2006.

16. The complainant first of all argues that the non-confidential version of the remedies document was provided to the Commission for the sole purpose of "market testing" the remedies. The remedies proposed by Ryanair included the surrender of certain landing slots of Ryanair and Air Lingus. The complainant argues that, since these landing slots could not have been "taken up" by Aer Lingus post-merger, the Commission was, thus, not entitled to send the remedies document to Aer Lingus for "market testing" (the complainant points out that the landing slots which would be surrendered post merger could only be taken up, after the merger, by other airlines that might compete with a merged Ryanair/Aer Lingus). The complainant also challenged the transmission of the remedies document to the Irish Department of Transport, since it too could not have taken up the offer of the landing slots. The complainant argues that the remedies document should only have been sent to other airlines that might wish "to take up" the landing slots referred to in the remedies document.

17. The complainant states that at 6 pm on 30 November 2006 the press agency Reuters reported details from the remedies document. Correspondence between Ryanair and the Commission refers to this story being "filed" by Reuters at 4 pm. According to the complainant, the Commission only sent the remedies document to other third parties between 6 pm and 7 pm on 30 November 2006. According to the complainant, these other third parties could not, therefore, have been the source of the leak.

18. According to the complainant, Aer Lingus, in a Circular sent to its shareholders on 1 December 2006, also referred to a "Market Testing of Proposed Remedies - Competitors" document which had been forwarded to Aer Lingus along with the non-confidential version of the remedies document. According to the complainant, Aer Lingus thereby breached its commitment to the Commission to use the information sent to it by the latter solely for the purposes of the merger control proceedings (that is, in this context, for the purposes of "market-testing"). The complainant argues, in this respect, that the Commission failed to enforce a Confidentiality Declaration which had been signed by Aer Lingus.

19. In its opinion to the Ombudsman, the Commission first noted that, in his letter opening the inquiry, the Ombudsman had posed the following questions to the Commission regarding this allegation:

1. According to information provided by the complainant, a third party (Aer Lingus) referred to the "Market Testing of Proposed Remedies - Competitors" document in a Circular sent to its shareholders on 1 December 2006. The Ombudsman asked the Commission whether this use of the "Market Testing of Proposed Remedies - Competitors" document contravenes the declaration, signed by recipients of the "Market Testing of Proposed Remedies - Competitors", not to use the document for "purposes other than the above referenced proceedings". In this context, the Ombudsman also asked the Commission to explain what it understands the meaning of "purposes other than the above referenced proceedings" to be. In the event the Commission were to consider that the disclosure of the "Market Testing of Proposed Remedies - Competitors" document to shareholders breached the afore-said declaration, the Ombudsman asked the Commission to identify the measures it took to enforce the declaration.
2. It appeared, from information provided by the complainant, that Reuters obtained, at or prior to 6 pm on 30 November 2006, information in relation to the remedies offered by Ryanair. The Ombudsman asked the Commission to explain the steps the Commission took to clarify the source of the information obtained by Reuters.

20. As a general point, the Commission argued that it had dealt with the confidential information in line with its strict confidentiality rules. It also argued that all the documents transmitted to Aer Lingus in the course of the merger proceedings did not contain any confidential information about Ryanair.

21. As regards the complainant's argument that the Commission should not have sent the remedies document to Aer Lingus, the Commission stated that, as noted in its letter to Ryanair's counsel dated 6 December 2006, the Commission has the right to consult any third party and/or other involved party which, in its view, may contribute to its evaluation of the transaction. It stated that a market test is not confined to those parties who are potential "beneficiaries"[6] of the remedies. Since Aer Lingus and the Department of Transport each provided detailed and substantiated submissions on the case, it was therefore appropriate to include them in the market test.

22. The Commission also stated that it was not the source of the information published by Reuters. It explained that it only confirmed to the press that it had received the remedies submitted by Ryanair, but did not disclose any information concerning the content of the remedies.

23. The Commission noted that the non-confidential version of those remedies was known to Ryanair, the Irish Department of Transport and Aer Lingus in the period prior to Reuters publishing its article. The Commission added that it had no evidence that Ryanair, the Irish Department of Transport or Aer Lingus had passed on any information to Reuters. The Commission stated, however, that, in order to verify whether Aer Lingus could have passed-on information to the press[7], the Director General of the Commission's Directorate General for Competition (DG COMP) sent a letter to Aer Lingus on 6 December 2006.

24. As regards whether it failed to take any action against Aer Lingus, the Commission stated in its opinion, that when Ryanair accused Aer Lingus of leaking confidential information, the Commission requested Aer Lingus to clarify the facts and its role in the disclosure of the information both to the press and in the Circular distributed to its shareholders. Aer Lingus responded by stating that it had not disclosed Ryanair's remedies document to any third party. It also stated that it had not disclosed the Commission's statement of preliminary concerns, or the questionnaire, or their material content. As regards the content of its Circular to its shareholders, it claimed that the information refereed to in the Circular was already in the press when the Circular was issued.

25. The Commission also stated in its opinion that the obligation on recipients of the remedies document not to use the document for "purposes other than the above referenced proceedings" means that the signatory commits to use the documents solely for the preparation of contributions in the context of the proceedings of a given case under the Merger Regulation, before the European Commission or for the purposes of defending its position before the Courts.

26. The Commission stated that, in this case, an inquiry was undertaken in order to check whether the information sent by the Commission in the framework of the market test had indeed been used for purposes other than the merger control proceedings. For this purpose, the Director General of DG COMP sent a letter to Aer Lingus on 6 December 2006.

27. In its answer to the Commission dated 8 December 2006, Aer Lingus stated that it had not disclosed the Commission's statement of preliminary concerns, or the questionnaire, or their "material content". Aer Lingus asserted that the information used in its Circular was already in the public domain and thus liable to be relied upon by people making decisions about buying and selling Aer Lingus shares. Aer Lingus claimed to have the legal obligation to comment on the information which was circulating in the market.

28. On the basis of the above, the Commission concluded that: i) there was no concrete evidence that Aer Lingus disclosed the information to the press; ii) it appeared to be factually accurate that the Circular was published when the information was already in the possession of the press. Consequently, the Commission did not take measures against Aer Lingus.

29. After careful consideration of the Commission's opinion and the complainant's observations, the Ombudsman decided that further inquiries were necessary. In his further inquiries, the Ombudsman asked three questions.

30. In his first question, the Ombudsman asked the Commission to comment on whether, in its view, a party will be dispensed from its duty not to reveal, or otherwise use, information contained in a remedies document, if that information has otherwise entered the public domain.

31. In its reply, the Commission stated that, in view of the wording of the Confidentiality Declaration signed by Aer Lingus in 2006, the remedies document itself cannot be disclosed or used for other purposes, even in the event the information contained in that document has otherwise entered the public domain. On the other hand, the signatory is free to reproduce and comment upon any information in the public domain, regardless of whether it is contained in the remedies document or not.

32. In his second question, the Ombudsman asked if the Commission checked to determine whether the information which had been made available in the Aer Lingus Circular of 1 December 2006 was no more extensive than the information contained in the Reuters report of 30 November 2006. In particular, the Ombudsman noted that, in a letter to the Commission of 1 December 2006, Ryanair's counsel referred to specific information from the remedies document which was contained in the Aer Lingus Circular. In this context, the Ombudsman asked the Commission if it checked whether this specific information from the remedies document had been included in the Circular and whether this specific information had already entered the public domain by December 2006[8].

33. Concerning this second question, the Commission, in its reply, confirmed that it had analysed the information contained in the Aer Lingus Circular concerning the remedies proposed by Ryanair, and compared it with the information in the Reuters report, to verify that no additional information (that is, information not yet in the public domain and originating from the remedies document of Ryanair) was contained in the Circular. In its further observations, the Commission reproduced the relevant section of the Reuters press story and the relevant section of the Aer Lingus Circular.

34. The Commission went on to state that the Circular only contained information that was already in the Reuters report. It then concluded that Aer Lingus' claim, contained in its letter of 8 December 2006, that "the Aer Lingus Circular does not disclose any level of detail regarding the remedies where that detail would have needed to come from the Ryanair document" was correct.

35. The Commission also noted that page 28 of the Aer Lingus Circular states that some statements on page 11 relating to the remedies offered and the effects of the merger on competition are based on a Commission document entitled "Market Testing of Proposed Remedies - Competitors". The Commission analysed whether these references as such constituted a breach of the Confidentiality Declaration signed by Aer Lingus. It went on to state that it could be argued that, by referring to the document (even without adding any factual information beyond what was already in the public domain), the signatory was using the document for purposes other than the merger control proceedings. In sum, it could be argued that such a reference enhances the credibility of the information already in the public domain. The Commission observed, however, that, in its reply to the Commission, Aer Lingus pointed to the fact that the wording of the standard confidentiality declaration used at that time was such that it explicitly covered only the document containing undertakings proposed by Ryanair (this document was marked as Annex III in the correspondence sent to Aer Lingus), but not the accompanying Commission document entitled "Market Testing of Proposed Remedies - Competitors" (this document was marked as Annex I).

36. The Commission then stressed that, at that time, it carefully analysed this claim by Aer Lingus. The wording of the Confidentiality Declaration signed by Aer Lingus was a standard text used by the Commission for a number of years. It read as follows:

"I hereby confirm that the undertakings proposed by the parties in the above-mentioned case received by ourselves will not be disclosed to any third party and will not be used for any purposes other than the above referenced proceedings."

37. The Commission stated that the wording of the Confidentiality Declaration referred only to the "undertakings proposed by the parties". It did not explicitly also cover the other documents prepared by the Commission. In particular, it did not explicitly cover the "Market testing of proposed remedies - competitors" document (that is, Annex I to the cover letter). For that reason, the Commission considered that the sole fact that Aer Lingus "referred" to this document in its Circular cannot be considered as a breach of the Confidentiality Declaration signed by Aer Lingus. In addition, the Commission took into account that, despite the narrow scope of the Confidentiality Declaration, Aer Lingus had not "disclosed" the content of the Commission's documents, since the information contained in the Circular was already in the public domain.

38. The Commission went on to state that, in order to clarify the exact scope of a "Confidentiality Declaration" for the future, it had changed the wording of its standard Confidentiality Declaration so that it now clearly covers not only the commitments made by notifying party/parties, but also all documents provided by the Commission in connection with those commitments. Therefore, when sending to Aer Lingus the non-confidential version of the Ryanair's proposed remedies during the Phase II investigation on 8 May 2007, the Confidentiality Declaration signed by Aer Lingus had the following broader and more precise wording:

"I hereby wish to confirm that the documents sent by the Commission for the purpose of market testing (i.e. the letter setting out the purpose of the investigation and the identified competition concerns, the questionnaire and the redacted version of the commitments submitted by Ryanair, hereinafter referred to as "the Documents") that will be supplied to me will not be released to any third party (other than our client or its professional advisors involved in its procedure in case they are in turn subject to similar confidentiality declarations) and will not be used for any purposes other than the above referenced proceedings.

I am aware that the Commission may bring legal action, including criminal action, against me if the agreement were breached.

Therefore, I solemnly undertake:

(i) to use the Documents solely for the preparation of further contributions in the context of the proceedings under the EC Merger Regulation before the European Commission (DG Competition) in the above mentioned case;

(ii) not to disclose, transmit, communicate or make the Documents or parts of it available (or any observations, comments, interferences or conclusions drawn from the Documents) in any manner, shape or form to any other person other than those to which the obligations have been extended as foreseen under (iii);

(iii) to procure the full compliance with the terms of this agreement by any and all persons who work with me in reviewing and analysing the Documents, and to provide a list of all such persons to the Commission and their signed acceptance of the terms of this agreement if so requested."

39. In his third question, the Ombudsman first noted that, in its opinion, the Commission stated that Aer Lingus informed it (i) that the information concerning the remedies offered by Ryanair was already in the public domain and (ii) that Aer Lingus thus had "the legal obligation" to comment on that information. The Ombudsman then asked if the Commission had verified precisely what that legal obligation was and what the conclusions of its verification were.

40. Concerning the third question, the Commission observed that Aer Lingus indicated in its letter of 8 December 2006 that, under the Irish Takeover Rules, a target of the proposed acquisition has the final opportunity on day 39 of the bid timetable (which, in the case of Ryanair's bid for Aer Lingus' shares, was 1 December 2006) to issue a Circular and to disclose all material new information. Further, Aer Lingus argued that, because, it would remain a publicly listed company with significant minority shareholders, even if it were acquired by Ryanair, Ryanair would, in its view, not have been able to perform those remedies that affected Aer Lingus' assets or business. Aer Lingus was thus of the view that certain of the proposed remedies were either illegal or undeliverable. In that context, it argued, that it was under a legal obligation to comment on these "material circumstances". It also noted that the information used concerned factual elements which were, in any event, already in the public domain. Furthermore, as Ryanair committed in its offer document of 23 October 2006 to retain Aer Lingus' London Heathrow slots, Aer Lingus claims that it was obliged to comment in the Circular on the fact that some of these slots were later offered by Ryanair as part of the proposed remedies. Aer Lingus claims that to have done otherwise could have constituted "market abuse".

41. The Commission concluded that, while these claims did not appear prima facie to be unreasonable, a precise verification would have required a thorough analysis of the Irish legislation referred to above. In any event, since the Commission concluded that the information published in the Circular did not constitute a breach of the Confidentiality Declaration made by Aer Lingus at the time, the Commission did not further consider whether Aer Lingus was obliged to publish this information under the applicable Irish law.

42. In its further observations, dated 17 February 2009, the complainant repeated its views. It added that, in the event that Aer Lingus were only commenting on unsubstantiated information that was already in the public domain, this was in any event unacceptable. It argued that Aer Lingus was well aware that this information was "highly confidential". It also argued that there is clear evidence to suggest that, at the time it issued its Circular on 1 December 2007, Aer Lingus had access to much more information than was in the public domain. It also observed that the Commission failed to address the issue of how this information made its way into the public domain in the first place.

43. The complainants also challenged the Commission's explanations stating that the language used in the Circular implies that Aer Lingus was not merely commenting on a matter which was already in the public domain. Specifically, the complainant pointed out that the Circular stated that "the offer of remedies includes slots at London Heathrow Airport" (emphasis added by the complainant). The complainant argued that, by using such language, Aer Lingus was not merely commenting on unsubstantiated media reports, but was rather making a statement of fact.

44. In addition, the complainant insisted that, by referring to the Commission document entitled "Market Testing of Proposed Remedies - Competitors" on Page 11 of the Circular, Aer Lingus violated the confidentiality agreement that it entered into with the Commission. The complainant rejected the Commission's argument which was based on the wording of the Confidentiality Declaration. He stated that the Commission was relying on a "bizarre technicality" in relation to the wording of the Confidentiality Declaration. He pointed out that, by definition, the "Market Testing of Proposed Remedies - Competitors" document must contain information from Ryanair's remedies paper.

45. Finally, the complainant considered that the Commission's response to the Ombudsman's third question shows that it admitted that, during the course of its investigations, it did not seek independent legal advice and relied solely on the excuses put forward by Aer Lingus. In the complainant's view, this showed that the Commission did not act appropriately as regards protecting Ryanair's confidential information.

The Ombudsman's assessment

Applicable legal rules

46. Article 287 of the EC Treaty reads as follows:

" The members of the institutions of the Community, the members of committees, and the officials and other servants of the Community shall be required, even after their duties have ceased, not to disclose information of the kind covered by the obligation of professional secrecy, in particular information about undertakings, their business relations or their cost components."

47. Article 17 of the Merger Regulation reads as follows:

"Professional secrecy

1. Information acquired as a result of the application of this Regulation shall be used only for the purposes of the relevant request, investigation or hearing.

2. Without prejudice to Article 4(3), Articles 18 and 20, the Commission and the competent authorities of the Member States, their officials and other servants and other persons working under the supervision of these authorities as well as officials and civil servants of other authorities of the Member States shall not disclose information they have acquired through the application of this Regulation of the kind covered by the obligation of professional secrecy.

3. Paragraphs 1 and 2 shall not prevent publication of general information or of surveys which do not contain information relating to particular undertakings or associations of undertakings."

Other specific rules are set out in the Merger Regulation as regards whom documents should be sent to, in the context of merger proceedings[9].

Nature of documents sent to Aer Lingus

48. In the introductory section of its first opinion, the Commission stated that all the documents transmitted to Aer Lingus in the course of the merger proceedings were "non confidential" versions, which did not contain any confidential information about Ryanair.

49. The letter sent to Aer Lingus on 30 November 2006 contained three annexes: Annex I was entitled "Market Testing of Proposed Remedies - Competitors". Annex II was a Confidentiality Declaration, which was to be signed by the recipient and returned to the Commission. Annex III was the "non confidential" version of the remedies proposal of Ryanair, which had been provided to the Commission by Ryanair for the purposes of market testing.

50. The Ombudsman first notes that, by its very nature, a remedies proposal is likely to contain highly sensitive commercial information.

51. It is true that a notifying party, or notifying parties, must also submit a "non-confidential" version of a remedies proposal for the purposes of market testing. However, a "non-confidential" version of a remedies proposal must be sufficiently detailed to allow a third party to evaluate "the workability and the effectiveness"[10] of the proposed remedies to remove the competition concerns identified by the Commission. Therefore, it cannot be excluded that such a "non-confidential" version will also contain at least certain commercially sensitive information. Indeed, the Ombudsman understands that, for the complainant, certain information contained in the "non-confidential" version of the remedies document submitted in Phase I of the merger notification proceedings was indeed highly sensitive.

52. The Ombudsman has carefully examined the documents submitted to him by the complainant. The "non-confidential" version of the remedies document refers specifically to the post-merger surrender of landing slots at various identified airports. It also contains precise details of a proposed fare cut. The Ombudsman is of the view that, prima facie, this would appear to have constituted, at the relevant time, commercially sensitive information.

53. The Ombudsman also notes that all third parties that received the so-called "non-confidential" version of the remedies document had to sign a Confidentiality Declaration. This would seem to imply that at least certain information these third parties would receive, even if it were included in a "non-confidential" version of the remedies document, might still contain sensitive information.

54. The "Market Testing of Proposed Remedies - Competitors" document is drafted by the Commission. It identifies the preliminary concerns of the Commission which gave rise to the need to offer remedies (if the merger proceeding are to be closed in Phase I). A "Market Testing of Proposed Remedies - Competitors" document is also likely to refer to at least certain information concerning the remedies proposed by the notifying parties/party. Indeed, in the present case, the "Market Testing of Proposed Remedies - Competitors" document did contain certain information concerning the remedies proposed by Ryanair (the Ombudsman notes that Page 4 of Annex I contains a "Summary of the Proposed Remedies").

55. In light of the above, the Ombudsman does not share the Commission's viewpoint that all the documents transmitted to Aer Lingus in the course of the merger proceedings did not contain any confidential information about Ryanair.

Argument that the Commission was not entitled to send the remedies document to Aer Lingus

56. As regards the complainant's argument that the Commission was not even entitled to send the remedies document to Aer Lingus for "market testing", the Ombudsman is of the view that the Commission should, especially in light of the sensitivity of such a document, carefully select the third parties to whom it sends a remedies document. It should only send a remedies document to those third parties that are likely to provide the Commission with information or opinions which will assist it in its task of evaluating the "workability and the effectiveness of the proposed remedies to remove the competition concerns"[11].

57. The "remedies document" submitted to the Commission by Ryanair contained a proposal by Ryanair to surrender certain landing slots post-merger. The purpose of the proposed remedy was to eliminate (what the Commission perceived to be) preliminary competition concerns in relation to specific airline routes. The purpose of sending the remedies documents to third parties was to allow the Commission to assess the workability and the effectiveness of the proposed remedy with respect to removing the preliminary competition concerns identified by the Commission. The Ombudsman accepts that the views of third parties which may be interested in taking up the offer of the landing slots would certainly be useful to the Commission in evaluating the workability and the effectiveness of the proposed remedies to remove the preliminary competition concerns[12]. This is all the more so, since the viability of such a remedy would depend on whether third parties were actually interested in taking up the offer of the slots. He also considers, however, that it is also the case that other third parties may have information or opinions which would be useful to the Commission as regards evaluating the workability and the effectiveness of the proposed remedies. In the Ombudsman view, it was reasonable for the Commission to consider that Aer Lingus, which was the airline using some of the landing slots at that time, and the airline competing with Ryanair on all the routes identified, was ideally placed to provide the Commission with useful information or opinions in order to allow it to evaluate the workability and the effectiveness of the proposed remedies to remove the preliminary competition concerns.

58. Accordingly, and in light of the above, the Ombudsman finds no maladministration as regards the aspect of the allegation which concerns the Commission's decision to send the remedies document to Aer Lingus.

Argument that the Commission was not entitled to send the remedies document to the Irish Department of Transport

59. As regards the fact that the Commission also sent the remedies document to the Irish Department of Transport on 30 November 2006, the Ombudsman notes that Article 19 of the Merger Regulation reads as follows:

"Liaison with the authorities of the Member States

1. The Commission shall transmit to the competent authorities of the Member States copies of notifications within three working days and, as soon as possible, copies of the most important documents lodged with or issued by the Commission pursuant to this Regulation. Such documents shall include commitments offered by the undertakings concerned vis-à-vis the Commission with a view to rendering the concentration compatible with the common market pursuant to Article 6(2) or Article 8(2), second subparagraph.

2. The Commission shall carry out the procedures set out in this Regulation in close and constant liaison with the competent authorities of the Member States, which may express their views upon those procedures. For the purposes of Article 9 it shall obtain information from the competent authority of the Member State as referred to in paragraph 2 of that Article and give it the opportunity to make known its views at every stage of the procedure up to the adoption of a decision pursuant to paragraph 3 of that Article; to that end it shall give it access to the file." (Emphasis added)

60. In addition, Paragraph 80 of the Notice on Remedies states that:

"Proposals submitted by the parties in accordance with these requirements will be assessed by the Commission. The Commission will consult the authorities of the Member States on the proposed commitments and, when considered appropriate, also third parties in the form of a market test. (...)" (Emphasis added)

61. On the basis of the above-mentioned provisions of the Merger Regulation, and the Notice on Remedies, the Ombudsman considers that the Commission was required to send the remedies document to the Irish Department of Transport. Accordingly, the Ombudsman finds no maladministration as regards the aspect of the allegation which concerns the Commission's decision to send the remedies document to the Irish Department of Transport.

The alleged disclosure of the "remedies" document to the press

62. It is not disputed that, at or before 6 pm on 30 November 2006, Reuters news agency reported details of the remedies document. The Ombudsman considers that this leak of confidential information in the press constitutes an incontrovertible breach of confidentiality.

63. Ryanair initially accused the Commission of leaking the document.

64. As regards this aspect of the allegation, the Commission has stated that it was not the origin of the leak. It has also explained that "an internal inquiry was undertaken in order to re-establish the chain of events and to clarify the possible sources of the information received by the press".

65. The Ombudsman commends the Commission for carrying out an internal inquiry, which was the appropriate first step to take in such circumstances.

66. The Ombudsman notes, however, that the Court of First Instance has established a very high standard as regards the responsibility of an institution holding documents for any leaks relating to such documents. It has stated that, in the absence of any evidence seeking to show that the leaks may have had a different origin, an institution holding the documents is liable for the leaks[13].

67. The Ombudsman notes that the leak occurred at no later than 6 pm on 30 November 2006. At the relevant time (between 1 pm and 6 pm on 30 November 2006), Ryanair, the Commission, the Irish Department of Transport and Aer Lingus were in possession of the "remedies" document. As such, it cannot be presumed, in these specific circumstances, that the origin of the leak was necessarily the Commission.

68. The Ombudsman also notes that no specific evidence has been produced to suggest that the Commission was the origin of the alleged disclosure. Indeed, the Ombudsman notes that the two press articles brought to his attention by the complainant, namely, the Reuters report of 30 November 2006 and an article from the Irish Independent newspaper of 1 December 2006, refer, respectively, to "a source close to the transaction" and "sources close to the Commission". While such wording cannot be deemed to be conclusive, it would seem to indicate that the sources for these reports were not in the Commission.

69. Accordingly, the Ombudsman finds no grounds for further inquiries as regards this aspect of the allegation.

70. Ryanair then informed the Commission that it should investigate specifically whether Aer Lingus was the source of the leak.

71. The Ombudsman is of the view that, if the Commission becomes aware that documents forwarded to third parties for comments in the context of merger proceedings may have been used inappropriately (for example, that they may have been disclosed to the press), it is required to investigate the matter fully. Specifically, according to the principles of good administration, the Commission should take all possible steps to identify the source of the possible leak and take all the appropriate measures in line with its conclusions.

72. The Ombudsman notes that the Commission requested Aer Lingus to clarify the facts and its role (if any) in the disclosure of information to the press. Aer Lingus responded by stating that it had not disclosed Ryanair's remedies document to any third party.

73. The Commission also informed the Ombudsman that its inquiries revealed no concrete evidence that Aer Lingus was the source of the disclosure of the information to the press.

74. The Ombudsman considers that, within the limits of its powers, the Commission reacted in a fast and clear manner with a view to clarifying the facts relating to the alleged leaks to the press by Aer Lingus on 30 November 2006. Accordingly, he finds no maladministration as regards this aspect of the allegation.

75. The Ombudsman notes, however, that the Irish Department of Transport also obtained a copy of the remedies document at 1 pm on 30 November 2006. In light of the very high standard set by the Court of First Instance as regards the responsibility of an institution holding documents for any leaks relating to such documents (see paragraph 54 above), and in light of the sensitivity of the information disclosed, the Ombudsman considers that the Commission could, to complete its investigation, have also considered contacting the Irish Department of Transport to inform it of the leak and to request its comments. However, Ryanair did not specifically allege to the Commission that the Irish Department of Transport might have been the source of the leak. Rather, it specifically stated to the Commission that it believed that Aer Lingus was the source of the leak. In this specific context, the Ombudsman considers that no further inquiries are justified as regards this specific issue.

The Aer Lingus Circular

76. As regards the aspect of the allegation concerning the Commission's alleged failure to investigate fully the use of confidential information in the Aer Lingus Circular, the Ombudsman considers that two issues arise: 1) whether the Circular contained information about Ryanair's remedy proposal which was not in the public domain; 2) whether the Circular referred to a document transmitted to Aer Lingus by the Commission.

1) Whether the Circular contained information about Ryanair's remedy proposal which was not in the public domain

77. The Commission informed the Ombudsman that its position is that a recipient of a remedies document cannot disclose the remedies document itself, or use remedies document for other purposes, even if the information contained in that document has otherwise entered the public domain. On the other hand, a recipient of a remedies document is, according to the Commission, free to reproduce and comment upon any information in the public domain, regardless of whether it is contained in the remedies document or not.

78. The Ombudsman first of all observes that the specific issue of the use of information which is already in the public domain is separate from the issue of how this information entered into the public domain in the first place. In this respect, the Ombudsman has noted (see paragraph 0 above) that the initial leak of information to the press constituted an incontrovertible breach of confidentiality.

79. However, as a general rule, the Ombudsman recognises that the Commission does not have specific powers which it could use to prevent third parties from referring to, or otherwise using, information which is already in the public domain. The Commission can and should only control how third parties use information which they have obtained from the Commission alone.

80. In his further inquires in relation to this issue, the Ombudsman asked the Commission, if it had checked to determine whether the information which had been made available in the Circular of Aer Lingus of 1 December 2006 was no more extensive than the information contained in the Reuters report of 30 November 2006.

81. In its reply, the Commission confirmed that it had analysed the information on the remedies proposed by Ryanair contained in the Aer Lingus Circular, and compared it with the information in the Reuters report. It also examined a report of the Irish Independent newspaper of 1 December 2006. It verified that no additional information (that is, information not yet in the public domain and originating from the remedies document of Ryanair) was contained in the Circular. It concluded that the claim by Aer Lingus in its letter of 8 December 2006 that "the Aer Lingus Circular does not disclose any level of detail regarding the remedies where that detail would have needed to come from the Ryanair document" was correct.

82. The Ombudsman carefully examined the Reuters report. The report refers to Ryanair's offer to give up identified "routes" (it mentions Dublin to Paris (Beauvais) and Dublin to Milan (Bergamo). At the time, these routes were operated by Ryanair. It also identified landing slots of Aer Lingus at Heathrow, which Ryanair offered to surrender post merger[14]. It also referred to a 2.5% reduction in fares post merger.

83. The Ombudsman notes that the Aer Lingus Circular refers to the offer to surrender Aer Lingus landing slots at "Heathrow airport and elsewhere" (emphasis added by the Ombudsman). As the Reuters report only referred to Ryanair giving up Aer Lingus landing slots at Heathrow airport, and did not refer to Ryanair giving up Aer Lingus landing slots elsewhere, the statement in the Circular could not have been based on the Reuters report alone.

84. However, the Ombudsman notes that the report from the Irish Independent newspaper of 1 December 2006 states that Ryanair would be willing to "to give up Aer Lingus slots pairs at Heathrow and at a number of other European Airports" (emphasis added by the Ombudsman). As a result, it appears that information concerning the surrender of Aer Lingus slots at airports other than Heathrow was also in the public domain when the Irish Independent article was written. As such, the Ombudsman agrees with the Commission that no additional information (that is, information not yet in the public domain and originating from the remedies document of Ryanair) was contained in the Circular of 1 December 2006.

85. As such, the Ombudsman concludes that the Commission did carry out an appropriate investigation into the allegations from Ryanair that the Aer Lingus Circular had revealed information only contained in the "remedies document".

2) Whether the Circular referred to a document transmitted to Aer Lingus by the Commission.

86. As regards whether the Circular referred to a document transmitted to Aer Lingus by the Commission, the Ombudsman notes that the Commission is of the view that the Circular did make a reference to the "Market Testing of Proposed Remedies - Competitors" document.

87. The Ombudsman first of all agrees with the Commission that, if a third party refers to a document transmitted to it by the Commission (even without adding any factual information about the remedies themselves which goes beyond what was already in the public domain), it uses the document for "purposes other than the proceedings". Further, it cannot be excluded that such a reference may enhance the credibility of any information already in the public domain.

88. The Ombudsman notes that the Commission is of the view that the version of the Confidentiality Declaration which it used at the relevant time was not sufficiently explicit in order to ensure that the recipients were expressly made aware that they should not use any of the documents transmitted to them (such as the "Market Testing of Proposed Remedies - Competitors" document) for any purpose other than responding to the Commission's request for comments.

89. The Ombudsman is mindful of the sensitivity of merger proceedings. As a result, a very high standard of care is required of the Commission when conducting such proceedings. In this context, the Ombudsman is of the view that the failure to word the Confidentiality Declaration appropriately constituted an instance of maladministration. Accordingly, the Ombudsman will make a critical remark below.

90. The Ombudsman notes, however, that once the Commission became aware that wording of the Confidentiality Declaration was deficient, it immediately took steps to deal with this deficient wording by drafting an amended Confidentiality Declaration (see paragraph 0 above). The Ombudsman has carefully examined the amended Confidentiality Declaration and considers that it appears to be sufficiently clear and comprehensive to ensure that recipients are made aware that they should not use any of the documents transmitted to them for any purpose other than responding to the Commission's request for comments.

91. The Ombudsman is of the view that principles of good administration require public authorities to seek always to "raise the bar". Raising the bar includes correcting deficiencies as soon as they become evident. While the Ombudsman is of the view the steps taken by the Commission could not remedy the problem arising from the original (deficient) Confidentiality Declaration sent to Aer Lingus, the Ombudsman considers it appropriate to commend the Commission for the proactive steps it took to avoid similar problems from reoccurring.

(ii) Alleged disclosure of the Statement of Objections to the press

Arguments presented to the Ombudsman

92. The complainant states that, on 30 March 2007, the "confidential" version of the Commission's Statement of Objections was improperly disclosed to a press agency, Bloomberg News. A subsequent Bloomberg News article states that the "265 page report" was "obtained by Bloomberg News". The complainant states that on 2 April 2007 the Commission wrote to Ryanair to inform it that it "shared Ryanair's regret" that the information had been disclosed.

93. In his letter opening the inquiry, the Ombudsman asked the Commission to confirm that the quotations and information cited by Bloomberg News could only have been obtained as a result of Bloomberg News having sight of, or being in possession of, a copy of the confidential version of the statement of objections sent to Ryanair. The Ombudsman asked the Commission to explain in detail what steps it took in order to determine if Bloomberg actually had sight of or obtained a copy of the confidential version of the statement of objections sent to Ryanair. In the event the Commission considered that Bloomberg News had obtained a copy of the confidential version of the statement of objections sent to Ryanair, the Ombudsman also asked the Commission to inform him of what steps had it taken to recover from Bloomberg News the copy of the confidential version of the statement of objections. The Ombudsman further asked the Commission to confirm that it only sent the confidential version of the statement of objections to Ryanair and not to other third parties.

94. The Commission stated that it has no direct proof that Bloomberg News was actually in possession of the Statement of Objections. However, the Commission confirmed that, if the table of contents were excluded, the Statement of Objections indeed had 265 pages. On the other hand, the Commission observed that Bloomberg's article contains a factual mistake. Therefore, the Commission concluded that Bloomberg News only had "sight of" the Statement of Objections.

95. The Commission also confirmed that it sent the confidential version of the Statement of Objections only to Ryanair and the 27 National Competition Authorities, as it was required to do by law[15]. It stated that it did not send it to other third parties. According to the Commission, the chain of events was the following:

• On 27 March 2007, the Commission's Secretariat General sent the confidential version of the Statement of Objections to Ryanair.
• On 29 March 2007, around noon, the Commission sent copies of the confidential version of the Statement of Objections to the National Competition Authorities of the Member States. In accordance with normal procedures, the documents were encrypted using a secure system (known as PKI). The documents were received by one responsible person in each National Competition Authority.
• On 30 March 2007 in the morning, Bloomberg published a report stating that that it had obtained access to the Statement of Objections.

96. The Commission then underlined that, on 7 May 2007, it sent a letter to all National Competition Authorities requesting them to carry out an internal in-depth investigation into the aforementioned event and to report the results of their investigations to the Commission. All National Competition Authorities that replied to the Commission stated that, on the basis of their internal investigations, they had not given access to the Statement of Objections to any authorised person or entity.

The Ombudsman's assessment

97. The Ombudsman again makes reference to Article 287 of the EC Treaty and Article 17 of the Merger Regulation (cited at paragraphs 0 and 0 above), which concern the obligation of professional secrecy.

98. Concerning the alleged disclosure of the Statement of Objections to Bloomberg News, the Commission concluded that Bloomberg News indeed had sight of the confidential version of the Statement of Objections. The Ombudsman considers that this constitutes a serious breach of confidentiality.

99. The Ombudsman again notes that the Court of First Instance has established a very high standard as regards the responsibility of an institution holding documents for any leaks in relation to such documents. The Court has further stated that, in the absence of any evidence seeking to show that the leaks may have had a different origin, an institution holding the documents is liable for the leaks[16].

100. The Ombudsman first observes that, in its observations, the Commission stated that, after having conducted an internal inquiry, it became convinced that the disclosure had not originated from within its ranks.

101. The Ombudsman commends the Commission for carrying out an internal inquiry. This was the appropriate first step to take in such circumstances.

102. The Commission, as required by Article 17 of the Merger Regulation, sent the Statement of Objections to the 27 National Competition Authorities. The Statement of Objections was sent to the national competition authorities using encryption technology. Further, it was sent to only one person in each national competition authority. The Ombudsman considers that, given the sensitivity of the document, these security measures were appropriate.

103. It appears, from the timeline provided by the Commission, that it sent the Statement of Objections to the National Competition Authorities on 29 March 2007. Bloomberg News published its article referring to the Statement of Objections on 30 March 2007.

104. Given that the document in question was also in the possession of the National Competition Authorities before Bloomberg News published its article, it cannot be presumed, in these specific circumstances, that the origin of the leak was necessarily the Commission.

105. In accordance with the duty of loyal cooperation between the Member States and the Communities set out in Article 10 of the EC Treaty, the Ombudsman notes that the Commission contacted the National Competition Authorities on 7 May 2007 and requested them to carry out an internal in-depth investigation into the aforementioned event and report the results of their investigations to it. The Commission informed the Ombudsman that all National Competition Authorities that replied to it stated that, on the basis of their internal investigations, they had not given access to the Statement of Objections to any authorised person or entity.

106. The Ombudsman notes that not all National Competition Authorities replied to the Commission's request. The Ombudsman's mandate empowers him to conduct inquires in relation to the actions of the Community Institutions and bodies only. The Ombudsman is not empowered to conduct inquiries in relation to the actions of national bodies. Thus, the Ombudsman cannot enquire about the any possible disclosure of the Statement of Objections to the press by the National Competition Authorities or any failure by the National Competition Authorities to reply to the Commission.

107. The Ombudsman, however, notes that the Commission and the National Competition Authorities cooperate with each other through the European Competition Network (ECN). In this context, the Ombudsman encourages the Commission, in an effort to raise the bar even further, to explore with national competition authorities appropriate mechanisms for ensuring that confidential information and documents remain secure. As a result, the Ombudsman will make a further remark.

108. The Ombudsman concludes that there are no grounds to continue his inquiry as regards this aspect of the allegation.

(iii) The transmission to Aer Lingus of Ryanair's response to the Statement of Objections

Arguments presented to the Ombudsman

109. According to the complainant, the Commission sent Aer Lingus a copy of Ryanair's response to the Commission's Statement of Objections the day before the Commission sought Ryanair's permission to do so (Ryanair subsequently refused this request from the Commission). The complainant argues that the Commission is not permitted to infer Ryanair's consent for such a transfer, unless Ryanair expressly gives that consent.

110. Further, according to the complainant, despite Ryanair's specific request that the Phase II remedies package submitted by Ryanair on 3 May 2007 not be provided to Aer Lingus or to their advisors (or to the Irish government), the Commission sent a non-confidential version of this remedies package to Aer Lingus. Apart from Ryanair's specific refusal to give its consent for this disclosure, the complainant argues that Ryanair cannot trust Aer Lingus, given the (alleged) breaches of confidentiality by the latter.

111. In its opinion to the Ombudsman, the Commission argued that, in the interests of the investigation and the decision-making process, and given the special status to which Aer Lingus is entitled to as an "other involved party" under the Merger Regulation, the Commission sent the non-confidential version of Ryanair's response to the Statement of Objections to Aer Lingus' legal advisors on 23 April 2007, after Aer Lingus had submitted to the Commission a confidentiality declaration.

112. The Commission noted that on 23 April 2007, Aer Lingus' legal advisors pointed out to the Commission that some of the data contained in that document were marked as "confidential". They informed the Commission that they would not transmit it to their clients. The Commission transmitted this message to Ryanair by e-mail of 24 April 2007 and requested Ryanair to send a revised, non-confidential version of their response to the Statement of Objections. In reply to that e-mail, and to a letter of 24 April 2007, Ryanair sent a number of communications to the Commission where it questioned the very appropriateness of the decision to send Aer Lingus the document in question.

113. The Commission stressed that it had informed Ryanair, on several occasions, why the document had been transmitted to Aer Lingus' advisors. It also requested Ryanair, several times, to confirm whether the information contained in its response to the Commission was indeed confidential and if so, to submit a revised non-confidential version of its response to the Commission. According to the Commission, Ryanair did not do so.

114. The Commission also insisted that it had not sent the confidential version of Ryanair's response to Aer Lingus, but rather a version marked "non confidential" which had also been prepared by Ryanair.

115. Finally, the Commission stated that it gave Ryanair a deadline by which to submit a revised, non-confidential version of its response to the Commission and indicated that, in the absence of such a non-confidential version, it would regard the response as submitted on 19 April 2007 as "non-confidential" and Aer Lingus' legal advisors would be informed accordingly. Given that Ryanair never submitted a revised non-confidential version as requested, the Commission decided to ask Aer Lingus to return the document and, in exchange, provided the latter with a version of that document which was further redacted by the Commission. The redacted version excluded all information pertaining to Ryanair which could be construed as confidential. Ryanair was informed of these steps by letter of 5 June 2007.

116. The Commission observed that it did not need Ryanair's consent to communicate non-confidential documents to other involved parties in merger proceedings. This is a decision to be taken by the Commission, the only relevant considerations being the applicable legal requirements and the interests of the investigation. In this particular case, the Commission considered that crosschecking Ryanair's non-confidential response to the Statement of Objections with Aer Lingus, an involved party in the proceedings and one particularly knowledgeable of the markets in question and of factual information advanced by Ryanair, was important for the purposes of the investigation.

The Ombudsman's assessment

117. According to Article 11 of the "Implementing Regulation"[17]:

"Parties to be heard

For the purposes of the rights to be heard pursuant to Article 18 of Regulation (EC) No 139/2004, the following parties are distinguished:

(a) notifying parties, that is, persons or undertakings submitting a notification pursuant to Article 4(2) of Regulation (EC) No 139/2004;

(b) other involved parties, that is, parties to the proposed concentration other than the notifying parties, such as the seller and the undertaking which is the target of the concentration;

(c) third persons, that is natural or legal persons, including customers, suppliers and competitors, provided they demonstrate a sufficient interest within the meaning of Article 18(4), second sentence, of Regulation (EC) No 139/2004, which is the case in particular

- for members of the administrative or management bodies of the undertakings concerned or the recognised representatives of their employees;

- for consumer associations, where the proposed concentration concerns products or services used by final consumers.

(d) parties regarding whom the Commission intends to take a decision pursuant to Article 14 or Article 15 of Regulation (EC) No 139/2004." (Emphasis added)

As Aer Lingus was a party to the proposed concentration other than the notifying party, the Ombudsman understands that Aer Lingus was an "involved party".

118. According to Article 13 of the "Implementing Regulation":

"Decisions on the substance of the case

1. Where the Commission intends to take a decision pursuant to Article 6(3) or Article 8(2) to (6) of Regulation (EC) No 139/2004, it shall, before consulting the Advisory Committee on Concentrations, hear the parties pursuant to Article 18(1) and (3) of that Regulation.

Article 12(2) of this Regulation shall apply mutatis mutandis where, in application of Article 18(2) of Regulation (EC) No 139/2004, the Commission has taken a decision pursuant to Article 8(5) of that Regulation provisionally.

2. The Commission shall address its objections in writing to the notifying parties.

The Commission shall, when giving notice of objections, set a time limit within which the notifying parties may inform the Commission of their comments in writing.

The Commission shall inform other involved parties in writing of these objections. (...)" (Emphasis added)

Therefore, the Ombudsman understands, the Commission was obliged to transmit the confidential version of the Statement of Objections to Aer Lingus.

119. The Ombudsman also notes Article 17 of the "Implementing Regulation", which reads as follows:

"Access to the file and use of documents

1. If so requested, the Commission shall grant access to the file to the parties to whom it has addressed a statement of objections, for the purpose of enabling them to exercise their rights of defence. Access shall be granted after the notification of the statement of objections.

2. The Commission shall, upon request, also give the other involved parties who have been informed of the objections access to the file in so far as this is necessary for the purposes of preparing their comments." (Emphasis added)

120. The Ombudsman therefore considers that, since Aer Lingus was an "involved party", the communication of the non-confidential response to the Statement of Objections to Aer Lingus was in accordance with applicable law. Indeed, nothing in the applicable rules requires the Commission to ask for Ryanair's consent so that an involved party can have access to the file. Therefore, the Ombudsman finds no maladministration as regards the aspect of the allegation which concerns the Commission's decision to send Ryanair's response to the Statement of Objections to Aer Lingus.

121. As regards the fact that Ryanair's response to the Statement of Objections transmitted to Aer Lingus contained some confidential information, the Ombudsman observes, first, that the Commission cannot be faulted for initially taking the view that the version of Ryanair's response to the Statement of Objections did not contain confidential information of Ryanair, given that it was Ryanair itself that marked the document as "non-confidential". Second, the Commission cannot be faulted for sending that version of Ryanair's response to the Statement of Objections to Aer Lingus.

122. Once counsel for Aer Lingus informed the Commission that Ryanair's "non-confidential" response to the Statement of Objections may, in fact, have contained some confidential information of Ryanair, the Commission contacted Ryanair asking it to submit a revised non-confidential version. The Ombudsman considers that the steps taken by the Commission were, in these circumstances, appropriate.

123. The Ombudsman underlines that Article 18, Paragraph 3, of the Implementing Regulation[18] establishes that:

"(...) the Commission may require persons (...), undertakings and associations of undertakings (...) to identify the documents or parts of documents which they consider to contain business secrets or other confidential information belonging to them and to identify the undertakings with regard to which such documents are to be considered confidential.

The Commission may also require persons (...), undertakings and associations of undertakings to identify any part of a statement of objections, case summary or a decision adopted by the Commission which in their view contains business secrets.

Where business secrets or other confidential information are identified, the persons, undertakings and associations of undertakings shall give reasons and provide a separate non-confidential version by the date set by the Commission."

124. The Ombudsman notes that Ryanair did not, despite the Commission's requests, submit a revised non-confidential version of its response to the Statement of Objections. In these circumstances, the Ombudsman agrees that the Commission was entitled to redact Ryanair's response to the Statement of Objections to remove information pertaining to Ryanair which could be construed as confidential. It has not been alleged that the Commission did not carry out this task adequately. Therefore, the Ombudsman finds no maladministration concerning this aspect of the allegation.

125. The complainant also argued that the Commission should not have sent a non-confidential version of the Phase II remedies package to Aer Lingus, given Ryanair's specific request that it not be provided to Aer Lingus or to their advisors. In this regard, Ryanair stated that it cannot trust Aer Lingus, given the (alleged) breaches of confidentiality by Aer Lingus to date.

126. The Ombudsman notes that the non-confidential version of the Phase II remedies package was only sent to Aer Lingus after Aer Lingus signed the amended Confidentiality Declaration. As noted in Paragraph 0 above, Ombudsman has carefully examined the amended Confidentiality Declaration. He considers that it appears to be sufficiently clear and comprehensive to ensure that recipients are made aware that they should not use any of the documents transmitted to them for any purpose other than responding to the Commission's request for comments. Further, as noted in Paragraphs 0, 0 and 0 above, the applicable rules did entitle the Commission to send remedies documents to Aer Lingus for "market testing" (including remedies documents submitted in Phase II).

127. The Ombudsman does take the view, however, that if the Commission were to conclude, from its investigations, that a third party breached a Confidentiality Declaration, by, for example, revealing confidential information to the press, the Commission should take appropriate measures vis-à-vis that third party. This would include reviewing carefully whether it would be appropriate to send any further information to that third party.

128. The Ombudsman considers that, in light of the above, no further inquiries are justified as regards this aspect of the allegation.

(iv) Alleged disclosure of details of a meeting to the press

Arguments presented to the Ombudsman

129. The complainant argued that the Commission disclosed to the press details of a meeting, which took place between Ryanair and the Commission on 15 December 2006. The complainant considered the meeting to be confidential. The complainant argued that the Commission failed to explain how or why the information in relation to that meeting was leaked to the press.

130. In a letter to Ryanair dated 16 January 2007, the Commission denied that it was the source of any such disclosure. in its opinion to the Ombudsman, the Commission repeated that it had not disclosed or facilitated the disclosure of any information concerning the meeting to the press or to any other third party. It noted that Ryanair did not provide the Commission with any concrete information as to what details of the meeting were known to the press agency in question. The Commission was also not aware of any references to this meeting in any publicly available source. Finally, in view of the lack of more detailed information about the alleged leak, the Commission was not in a position to conduct further inquiries.

The Ombudsman's assessment

131. The Ombudsman considers that the complainant has not supplied sufficient supporting evidence that the details of the meeting were disclosed by the Commission to the press. He notes that the only information provided concerns an alleged phone call to Ryanair from a journalist inquiring about the meeting. Accordingly, the existence of any leak is not sufficiently established[19].

132. The Ombudsman thus considers that no further inquiries are justified as regards this aspect of the allegation.

C. The claim that the Commission should take the necessary measures to protect the confidentiality of Ryanair's highly sensitive information

Arguments presented to the Ombudsman

133. The complainant argued that the Commission should take the necessary measures to protect the confidentiality of Ryanair's highly sensitive information.

134. The Commission argued that it took all appropriate measures to protect Ryanair's confidential information.

The Ombudsman's assessment

135. The Ombudsman understands the complainant's claim to be that the Commission should take all appropriate measures to remedy the deficiencies that have been found to exist as regards the protection of confidential information of Ryanair.

136. As noted in paragraph 0 above, the Confidentiality Declaration used by the Commission until at least December 2006 was not sufficiently explicit in order to ensure that the recipients of documents were expressly made aware that they should not use any of the documents transmitted to them for any purpose other than responding to the Commission's request for comments. As regards this aspect of the allegation, the Ombudsman has already decided to make a critical remark.

137. As noted in Paragraphs 0 and 0 above, the Commission has now drafted an amended Confidentiality Declaration. The Ombudsman has carefully examined the amended Confidentiality Declaration and considers that it appears to be sufficiently clear and comprehensive to ensure that recipients are made aware that they should not use any of the documents transmitted to them for any purpose other than responding to the Commission's request for comments. The Ombudsman thus considers that no further inquiries are justified as regards the aspect of the claim which reflects this aspect of the allegation.

138. Further, the Ombudsman has already decided that he will make a further remark as regards the need to improve communication and cooperation with national authorities. The Ombudsman thus considers that no further inquiries are justified as regards the aspects of the claim which reflect these aspects of the allegation.

139. As regards the other aspects of the complainant's allegation, the Ombudsman either found that there was no maladministration, or that no further inquiries were justified. As such, the Ombudsman considers that no further inquiries are justified as regards the aspects of the claim which reflect these aspects of the allegation.

D. Conclusions

On the basis of the Ombudsman's inquiries into this complaint, it appears necessary to make the following critical remark:

The Commission failed to word appropriately the Confidentiality Declaration originally sent to Aer Lingus.

It also appears necessary to make the following further remark:

The Ombudsman encourages the Commission to explore with national competition authorities appropriate mechanisms for ensuring that the transmission of confidential information and documents remains secure.

The complainant and the Commission will be informed of this decision.

 

P. Nikiforos DIAMANDOUROS

Done in Strasbourg on 27 April 2009

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[1] Council Regulation (EC) n° 139/2004 of 20 January 2004 on the control of concentrations between undertakings (the "Merger Regulation"), OJ L 24, 29.1.2004, p.1.

[2] These questions are cited in paragraphs 19 and 80 of this decision.

[3] These questions are cited in paragraphs 30, 33 and 39 of this decision.

[4] Proceedings under the Merger Regulation have two phases, known as Phase I and Phase II. Phase I is limited to confirming whether or not there are "serious doubts" about the proposed merger that justify initiating a Phase II inquiry. Phase II involves an in-depth analysis of the markets affected.

[5] A "remedies" document contains commitments presented to the Commission by the notifying party/parties with a view to dispelling doubts concerning the compatibility of the proposed merger with the common market. At the same time as submitting the commitments, the notifying party/parties must supply a "non-confidential" version of the commitments, for the purposes of "market testing". These proposals will be assessed by the Commission. Where the assessment confirms that the proposed commitments remove the grounds for "serious doubts", the Commission can clear the merger in Phase I. Whereas where the assessment shows that the commitments offered are not sufficient to remove the competitive concerns raised by the merger, the Commission will issue an Article 6(1)(c) decision and open Phase II proceedings. Commitments can also be offered during Phase II.

[6] The Ombudsman understands that the term "beneficiaries", in this context, refers to third parties that might wish to "take up" the offer of the landing slots.

[7] The Commission also noted that Ryanair had, in correspondence with the Commission at the time, only questioned whether Aer Lingus was the source of the leak. Ryanair did not allege (to the Commission) that the Irish Department of Transport may have been the source of the leak.

[8] In its answer to the Commission dated 8 December 2006, Aer Lingus stated that it had not disclosed the Commission's statement of preliminary concerns, or the questionnaire, or their "material content".

[9] See in particular Article 18 on "Hearing of the parties and third persons" and Article 19 on "Liaison with the authorities of the Member States".

[10] See paragraph 79(d) of the Notice in Remedies (Commission Notice on remedies acceptable under Council Regulation (EEC) n° 139/2004 and under Commission Regulation (EC) n° 802/2004, OJ C 267, 22.10.2008) which states that "proposals for commitments (...) shall be accompanied by a non-confidential version of the commitments for the purposes of market testing them with third parties. The non-confidential version of the commitments must allow third parties to fully assess the workability and the effectiveness of the proposed remedies to remove the competition concerns".

[11] See footnote 10 above.

[12] See Paragraphs 47 to 57 of the Notice on Remedies. Paragraph 47 reads as follows: "(...) The potential of a business to attract a suitable purchaser is an important element already of the Commission's assessment of the appropriateness of the proposed commitment.(...)"

[13] See Case T-48/05, Yves Franchet and Daniel Byk v Commission of 8 July 2008, not yet published in the ECR, paragraphs 202 to 206.

[14] The terms landing slots and routes are, in the Commission's view, interchangeable for the purposes of the remedies document (giving up a route implies surrendering the landing slots for that route).

[15] Article 19(1) of the Merger Regulation.

[16] See Case T-48/05, Yves Franchet and Daniel Byk v Commission of 8 July 2008, not yet published in the ECR, paragraphs 202 to 206.

[17] Commission Regulation (EC) n° 1033/2008 amending Regulation (EC) n° 802/2004 implementing Council Regulation (EC) n° 139/2004 on the control of concentrations between undertakings, OJ L 279, 22.10.2008, p.3-12.

[18] Cited above.

[19] See Yves Franchet and Daniel Byk v Commission (cited above) at paragraph 205.