48The statement challenged by Aer Lingus is also contrary to the Commission’s previous practice as set out in Decision 2004/103/EC of 30 January 2002 setting out measures to restore conditions of effective competition pursuant to Article 8(4) of Council Regulation (EEC) No 4064/89 of 21 December 1989 on the control of concentrations between undertakings (Case COMP/M.2416 – Tetra Laval/Sidel) (OJ 2004 L 38, p. 1) (‘the Tetra Laval decision’), in which the Commission found that Tetra Laval should not be allowed to retain a shareholding in Sidel, and in Decision 2004/276/EC of 30 January 2002 requiring undertakings to be separated adopted pursuant to Article 8(4) of Council Regulation (EEC) No 4064/89 (Case COMP/M.2283 – Schneider/Legrand) (OJ 2004 L 101, p.134) (‘the Schneider decision’), in which the Commission found that Schneider’s shareholding of less than 5% of Legrand’s capital would not lead to negative effects on competition. In that regard, the applicant challenges the Commission’s statement made in point 13 of the contested decision that the situation in the present case differs from those in Tetra Laval and Schneider, in which the public bid had already been fully implemented and the purchaser had acquired control of the target. That distinction is not relevant as regards assessing the statement made in point 12 of that decision that there are no negative effects on competition ‘in the absence of control’. In Tetra Laval and Schneider the Commission took precisely the opposite view, namely that even if the relevant shareholdings were reduced to a level which did not allow the exercise of ‘control’, a minority shareholding would still result in an unacceptable distortion of competition. Moreover, the concentration at issue here remains a prospective concentration. Whether or not the public bid lapsed is immaterial since Ryanair maintained, and still maintains, its intention to acquire Aer Lingus. Differences in national rules applicable to public bids cannot be advanced as justification for one acquirer’s being able to maintain a minority shareholding while another is required to dispose of it. The effect on competition is the same in either case. In the present case, the adoption of the Ryanair decision should not have the effect of depriving the Commission of competence to examine the distortion of competition arising from a part of the concentration which it has just prohibited.
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