Structural Confidentiality of ECN Communications and Strict Necessity for Inspection: Commentary on Ryanair DAC & Ryanair Holdings plc v CCPC (No. 3) [2025] IEHC 644

1. Introduction

This judgment of Barrett J in the High Court of Ireland concerns an interlocutory skirmish in wider proceedings brought by Ryanair against the Competition and Consumer Protection Commission (CCPC). The underlying dispute arises from an Italian competition investigation into Ryanair by the Autorità Garante Della Concorrenza e Del Mercato (AGCM), and a formal request for investigative assistance sent by the AGCM to the CCPC under Article 22(1) of Regulation 1/2003.

The particular motion addressed in this judgment is narrow but significant: Ryanair sought an order under Order 31, rule 18 of the Rules of the Superior Courts (RSC) compelling the CCPC to produce for inspection the AGCM’s “formal request for assistance” of 27 February 2024 (the “Document”, often called the “RFA” in Ryanair’s submissions).

Despite the apparently procedural nature of the application, the judgment establishes, or at least consolidates, important principles in three interlocking areas:

• the proper interpretation and operation of Order 31 rr. 15 and 18 RSC on notices to produce and inspection;
• the scope of public interest/executive privilege in the context of regulatory cooperation; and
• the structural confidentiality under EU law attaching to communications within the European Competition Network (ECN), particularly Article 22 requests, and its effect on domestic disclosure applications.

It also rejects attempts to invoke proportionality and rule-of-law arguments to secure disclosure where the document played no “operative role” in the impugned decisions and where EU law provides a strong, category-based presumption of confidentiality.

2. Factual and Procedural Background (in Outline)

Only a portion of the broader factual matrix appears in this judgment, but the essentials for this application can be summarised as follows:

1. The AGCM is conducting an Italian competition investigation into Ryanair. In February 2024 it sent a formal request for investigative assistance to the CCPC under Article 22(1) of Regulation 1/2003 (para. 1).
2. The CCPC decided to assist the AGCM and, as part of that assistance, applied to the Irish District Court for a search warrant. The District Judge issued the warrant. The warrant application was grounded on sworn information and some oral evidence; there is no evidence that the AGCM’s formal request itself was ever shown to, or opened by, the District Judge (paras. 8, 14, 18, 21, 23, 28–29).
3. Ryanair has brought plenary proceedings against the CCPC, essentially advancing two propositions (para. 27):
   • that the search warrant should not have issued because certain allegedly relevant matters were not disclosed to the District Judge; and
   • that allegedly irrelevant and commercially sensitive documents were improperly copied during the execution of the warrant.
4. In the course of those proceedings Ryanair served a Notice to Produce under O.31 r.15 RSC on 26 June 2024, seeking production of the AGCM’s formal request for assistance (para. 24).
5. The CCPC responded that it would not rely on the Document in evidence. That is crucial, because under O.31 r.15 the only consequence of a refusal to produce is that the non-producing party cannot subsequently rely on the document at trial (paras. 4–5, 24).
6. Unsatisfied, Ryanair brought the present motion under O.31 r.18 (and/or the Court’s inherent jurisdiction), asking the Court to compel inspection of the Document on the basis that it was central to:
   • the CCPC’s decision to assist the AGCM, and
   • the District Court’s issuance of the search warrant.
7. Parallel to this, the CCPC had also successfully applied to strike out parts of Ryanair’s plenary claim under s.15AAA of the Competition Act 2022 (para. 26). Barrett J nevertheless determines the inspection motion as if the strike-out had not occurred, thereby taking Ryanair’s position “at its highest” (para. 26).

3. Summary of the Judgment

The Court refuses Ryanair’s application for inspection of the AGCM’s formal request for assistance.

The key holdings can be distilled as follows:

• No automatic inspection right from mere reference or notice to produce. A reference to a document in an affidavit does not itself confer a right of inspection under O.31 r.18, nor does a notice to produce under O.31 r.15 create a compulsory production mechanism (paras. 5, 24). The only sanction under r.15 is that the document cannot later be relied upon by its holder.
• Strict necessity requirement under O.31 r.18 not met. Inspection will not be ordered unless the Court is satisfied it is “necessary either for disposing fairly of the cause or matter or for saving costs”. Ryanair failed to show that inspection of the Document was necessary for any pleaded ground (paras. 5, 8, 16, 18, 21, 24–27).
• The Document played no "operative role" in the impugned decisions. On the evidence, the District Judge granted the search warrant solely on sworn information and associated oral evidence. There is no evidence that the Document was opened to, or by, the District Judge, or that the CCPC treated it as the substantive basis for its decision to assist (paras. 8, 14, 16, 18, 21, 23, 27–29).
• The Document is irrelevant to the pleaded issues. Ryanair’s claims (non-disclosure of matters to the District Judge and improper copying of documents) cannot be advanced by disclosure of an internal, preliminary communication between NCAs (paras. 16, 23, 27–28).
• Public interest / executive privilege applies. As a highly confidential communication between NCAs in the context of an ongoing regulatory investigation, the Document attracts public interest / executive privilege. Disclosure would jeopardise the network of cooperation among NCAs, and Ryanair has identified no sufficient countervailing interest (paras. 9–11, 28, 30–32, 35, 51).
• Structural EU-law confidentiality for ECN communications. Article 27(2) of Regulation 1/2003, read with Recital 32 of that Regulation and Recital 14 of Directive 2019/1, establishes a structural presumption that correspondence between competition authorities within the ECN (including Article 22 requests) is confidential and excluded from rights of access—even for undertakings that are parties to the investigation (paras. 11, 37–45, 50–52, 56).
• Balancing under Pfleiderer not realistically possible in this case. While EU law allows for some deviation from confidentiality where a strong, specific necessity is shown (e.g. in damages actions), Barrett J considers that he lacks sufficient information about the AGCM’s interests, and the AGCM is not a party. Therefore he cannot meaningfully carry out the Pfleiderer balancing exercise, and in any event Ryanair already has the materials actually used to obtain the warrant (paras. 8, 47–48, 52–53, 56).
• Rule-of-law and effective-remedy arguments do not override EU confidentiality. The principle of effectiveness cannot be used to circumvent a substantive EU-law obligation such as the confidentiality regime of Regulation 1/2003 (paras. 54–57). Since the Document played no operative role and Ryanair already holds the materials the District Judge relied on, refusing disclosure does not jeopardise Ryanair’s effective remedy.

On these grounds—each independently sufficient—the Court exercises its discretion under O.31 r.18 to refuse the order for inspection (paras. 5, 26, 35, 58).

4. Detailed Analysis

4.1 The Irish Procedural Framework: Order 31 rr. 15 and 18 RSC

4.1.1 Order 31 r.15 – Notices to Produce

Order 31 r.15 allows a party to serve a “notice to produce” documents referred to in the other party’s pleadings or affidavits. Importantly, Barrett J stresses that this rule operates in a limited way:

• it does not itself entitle the requesting party to compel production; and
• its only legal consequence is that the party who refuses to produce a document so notified may not later rely on that document in evidence (paras. 5, 24).

Here, the CCPC confirmed unequivocally that it did not intend to adduce the Document in evidence (paras. 4–5, 24). That confirmation satisfies r.15 entirely. Once the CCPC has accepted that self-imposed handicap, Ryanair obtains nothing further from r.15.

4.1.2 Order 31 r.18 – Court-Ordered Inspection

Order 31 r.18 is a distinct and more demanding route. The Court “shall not” make an order for inspection unless satisfied that inspection is “necessary either for disposing fairly of the cause or matter or for saving costs”.

Three features of the Court’s approach are critical:

1. Necessity is a threshold requirement. The burden lies “squarely on Ryanair” to demonstrate such necessity (para. 8). There is no “starting presumption” in favour of inspection simply because a document was a trigger in the chain of events or was mentioned in an affidavit (paras. 5, 8).
2. Relevance to pleaded issues is inherent in necessity. Inspection is only “necessary” if the document can potentially assist in the determination of an issue that is actually pleaded (paras. 16, 23, 27–28). Irrelevant material cannot be “necessary” within the meaning of r.18.
3. The jurisdiction is discretionary. Even where relevance and some degree of necessity are shown, the Court retains a broad discretion, to be exercised contextually and by reference to factors such as privilege, confidentiality, and proportionality (paras. 5, 25, 29, 35).

In support of this approach, Barrett J cites:

• Taylor v Anderton [1995] 1 WLR 447 (as approved in Cooper Flynn v RTÉ);
• O'Neill v Governor of Castlerea Prison [2004] 1 IR 298;
• Maye v Adams [2015] IEHC 530;
• Delany & McGrath on Civil Procedure (Biehler et al., 5th ed., para. 11–55); and
• Matthews & Malek, Disclosure, 4th ed. (para. 25).

4.1.3 Application of O.31 r.18 to the Present Case

Applying these principles, the judge finds that Ryanair has not cleared the necessity threshold (paras. 5, 26–27):

• The Document is a preliminary, internal communication between NCAs and “could not assist” the pleaded claims that:
  • the warrant should not have issued because certain matters were not disclosed, or
  • certain documents were improperly copied (para. 27).
• It played no operative role in the District Judge’s decision to grant the warrant; that decision turned solely on sworn information and oral evidence (paras. 8, 14, 16, 18, 23, 27–29).
• Inspection is therefore not necessary for the “fair disposal” of the issues, nor for saving costs; at most, Ryanair seeks an evidential advantage or curiosity, which r.18 does not underwrite.

Barrett J adds that even if some arguable relevance existed, his discretion would, in any event, be exercised against disclosure, given the confidentiality and privilege dimensions (paras. 28–31, 35).

4.2 Relevance and the “Operative Role” Concept

A recurring theme is the distinction between background events and decision-making material. The Court effectively adopts an “operative role” test: did the Document form part of the actual legal basis or reasoning for the impugned decision?

On the evidence, the answer is clearly “no”:

• There is “no suggestion” that the Document was opened to, or by, the District Judge (paras. 8, 14, 18, 21, 23, 29).
• The warrant “issued solely on the basis of the sworn information… and certain related oral evidence” (paras. 8, 18, 21, 23, 27–29).
• The CCPC has “never stated” that the Document was the principal basis of its decision to assist the AGCM (para. 14).

As a result:

• AGCM’s “suspicions” conveyed via the Document were at most background. They were “not the legal basis” for the warrant (paras. 22–23).
• Because they were not operative in the District Judge’s reasoning, they cannot ground a right to disclosure under O.31 r.18 (para. 23).

This “operative role” analysis has broader implications. It cautions litigants that:

• Merely because a document triggered a sequence of events does not render it relevant in the strict sense required for inspection.
• Pleadings must identify a legal theory under which the content of the document could actually matter to the validity of the decision under challenge. Otherwise, inspection is a non-starter.

4.3 Public Interest / Executive Privilege Over NCA Communications

The Court holds that the Document is protected by public interest/executive privilege—sometimes called “State privilege”—both as a matter of domestic law and by reference to the broader public interest in effective regulatory cooperation.

Key Irish authorities discussed include:

• Murphy v Dublin Corporation [1972] IR 215;
• Ambiorix v Minister for the Environment (No. 1) [1992] 1 IR 277;
• Bradley v Minister for Justice [2017] IEHC 422.

From these cases, Barrett J highlights that:

• Public interest/executive privilege is not absolute; there is “no zone of complete immunity” (para. 30).
• Nevertheless, assertions of such privilege must be examined case by case, with the Court identifying and weighing:
  • the public interests served by confidentiality; and
  • any countervailing interests in disclosure (paras. 30–31).

Applying this framework, he finds:

• The CCPC and AGCM interests are “readily identifiable”: maintaining confidential cooperation, ensuring effective enforcement, and protecting investigative methods (paras. 30–31).
• The risk to that cooperation is “compellingly” evidenced by the CCPC and by the Directorate General of the European Commission, whose letter warns that disclosure would:
  • “severely compromise the efficacy of the network and the ongoing investigation”; and
  • “jeopardise the integrity and effectiveness of the investigative process, as well as working relationships between the competition authorities of the ECN” (paras. 11, 32–34).
• Ryanair has identified no “reasonable countervailing interest” of comparable weight (para. 31).

On that basis, the Court holds that public interest/executive privilege independently justifies refusing inspection (paras. 28, 30–31, 35, 51).

4.4 The EU-Law Confidentiality Regime for ECN Communications

4.4.1 Legal Sources

Barrett J situates the case within a well-developed EU-law framework governing the confidentiality of communications within the ECN:

• Article 22(1) of Regulation 1/2003 – permits a national competition authority to request another NCA’s assistance in investigating possible infringements of Articles 101 and 102 TFEU (paras. 36, 39).
• Article 27(2) of Regulation 1/2003 – provides that:

  The right of access to the file shall not extend to confidential information and internal documents of the Commission or the competition authorities of the Member States. In particular, the right of access shall not extend to correspondence between the Commission and the competition authorities of the Member States, or between the latter, including documents drawn up pursuant to Articles 11 and 14. (para. 37, emphasis added by commentary)

• Recital 32 of Regulation 1/2003 – acknowledges the need to safeguard “the confidentiality of information exchanged in the network” (para. 41).
• Recital 14 of Directive 2019/1 (Directive 1/2019) – emphasises that the right of access to a competition file:

  should not extend to confidential information and internal documents of, and correspondence between, the NCAs and the Commission (para. 38).

These provisions underpin a general presumption that communications within the ECN—such as an Article 22 request for assistance—are confidential and excluded from the ordinary rights of access enjoyed by the parties under EU competition procedure.

4.4.2 Ryanair’s Narrow Reading of Article 27(2) and the Court’s Response

Ryanair advanced a technically sophisticated argument:

• Article 27 is framed by reference to Commission decision-making and rights of defence in Commission proceedings (Art. 27(1));
• Articles 27(3) and 27(4) clearly concern Commission decisions;
• Recital 32 also appears, at first blush, to focus on Commission proceedings; and
• Recitals (including Recital 14 of Directive 2019/1) lack independent legal force (para. 43).

Therefore, Ryanair contended, Article 27(2)’s confidentiality carve-outs apply only within the Commission’s own files and have no direct bearing on:

• domestic investigations by an NCA; or
• a national court’s power to order inspection in domestic proceedings such as the present (para. 43).

Barrett J accepts that this is “in the abstract, arguable” (para. 44). However, he ultimately rejects it for several reasons:

1. The text of Article 27(2) is “plain” and “unqualified”; it refers not only to Commission internal documents but also to “correspondence between the Commission and the competition authorities of the Member States, or between the latter” (para. 44).
2. The words “between the latter” clearly capture NCA–NCA communications within the ECN, including Article 22 requests (paras. 44–45).
3. Recital 32 to Regulation 1/2003 and Recital 14 to Directive 2019/1 confirm that the confidentiality of network communications is a structural feature of the enforcement architecture, not a detail limited to Commission case-management rules (paras. 41, 45).
4. This reading aligns with:
   • the “consistent institutional practice” of the Commission, including the Directorate General’s intervention in the Italian proceedings; and
   • CJEU and General Court jurisprudence, especially EnBW and Unión de Almacenistas (paras. 45–51).

Consequently, the Court treats Article 27(2) as establishing a general presumption of confidentiality for NCA–NCA communications within the ECN, operative even in domestic litigation where an undertaking seeks to challenge a national investigative measure.

4.4.3 CJEU Case Law: Pfleiderer, EnBW, and Unión de Almacenistas

The judgment draws extensively on three key decisions:

1. Pfleiderer AG v Bundeskartellamt (C‑360/09) (paras. 46–47).
   • The CJEU held that Regulation 1/2003 does not absolutely bar individuals who suffered harm from infringements of EU competition law from seeking access to documents in a competition authority’s file, even where those documents include leniency materials.
   • However, access is conditional and subject to a case-by-case balancing exercise by national courts, weighing:
     • the interest in effective private enforcement (damages actions), against
     • the interest in maintaining the effectiveness of public enforcement tools such as leniency programmes.
   • National courts must apply their own procedural rules, but in conformity with this balancing requirement.
   Barrett J acknowledges this framework but considers himself unable to perform the balancing in this case because:
   • the AGCM (the holder of the information and principal interest-bearer) is not a party; and
   • he lacks sufficiently concrete information about the AGCM’s interests (paras. 47–48, 52–53).
2. European Commission v EnBW Energie Baden‑Württemberg AG (C‑365/12 P) (paras. 45, 48).
   • The CJEU reaffirmed a general presumption that access to leniency materials in competition cases would jeopardise protected interests (proper functioning of investigations, protection of commercial secrets, etc.).
   • This presumption operates in the context of Regulation 1049/2001 on public access to EU documents, but its logic is transposable to other access requests.
3. Unión de Almacenistas de Hierros de España v Commission (T‑623/13) (paras. 46, 49–51).
   • Concerned access to correspondence between the Commission and a national competition authority.
   • The General Court held that disclosure of such correspondence may compromise:
     • the commercial interests of undertakings; and
     • the objectives of inspections and investigations (Art. 4(2) Regulation 1049/2001).
   • The Court recognised a general presumption that disclosure of this category of documents would be harmful and upheld the refusal of access.
   • Significantly, it stated that Article 27(2) implies that:

     even the parties subject to proceedings conducted by the Commission… do not have access to documents drawn up pursuant to Article 11 of that regulation. A fortiori, Regulation No 1/2003 therefore prevents all persons from accessing such documents (para. 50).

Barrett J leverages these authorities to establish that formal assistance requests and associated correspondence are subject to a robust, category-based presumption against disclosure, one that is not lightly displaced even where a party invokes its rights of defence or the rule of law.

4.4.4 Structural Presumption of Confidentiality and Its Consequences

Synthesising the EU law sources, the Court treats confidentiality of ECN communications as a structural component of the EU competition enforcement regime (paras. 11, 41, 45, 56):

• Articles 27(2) and Recital 32 of Regulation 1/2003, and Recital 14 of Directive 2019/1, articulate an institutional commitment to protecting network communications.
• The Directorate General’s letter is not treated as an “authoritative exposition of EU law” (para. 34) but as compelling factual confirmation of the serious risks that disclosure would entail (paras. 11, 32–34).

On that basis:

• Redaction is no solution: confidentiality “attaches to the category of communication itself, not to isolated sensitive passages” (para. 11).
• Even if national law might sometimes allow access (e.g. follow-on damages cases under Pfleiderer), such access requires:
  • a concrete and pressing necessity linked to the claims in issue, and
  • a proper balancing of all affected interests, including those of foreign NCAs—conditions not satisfied here (paras. 47, 52–53, 56).

4.5 Balancing Confidentiality and the Right to an Effective Remedy

Ryanair invoked the EU’s foundational commitment to the rule of law and the principle of effectiveness:

• Les Verts v European Parliament (Case 294/83) – the EU as a community based on the rule of law; and
• Unión de Pequenos Agricultores v Council – close connection between rule of law, effective judicial protection, and the effectiveness principle (para. 54).

It argued that:

• a categorical refusal to permit inspection would endanger its right to an effective remedy; and
• the national judge is required to “weigh up all the relevant factors” when access is sought to ensure EU rights are effectively enforced (para. 54).

Barrett J’s answer is twofold (paras. 55–57):

1. No absolute prohibition; specific structural confidentiality. The present case does not involve a general “absolute ban” on access to competition authority files. It concerns a specific category of documents—ECN communications—over which EU law itself imposes confidentiality (Art. 27(2), Recital 32, Recital 14), making network confidentiality an “essential structural feature” rather than a merely procedural rule (para. 56).
2. Rights remain effective without access to this Document. Even without the Document, Ryanair:
   • possesses the sworn information and a transcript of the oral evidence that actually grounded the search warrant (para. 56);
   • can fully litigate its pleaded challenges to the warrant and to the copying of documents; and
   • is not prevented from challenging the legality of the CCPC’s actions or the District Judge’s decision on the basis of the material actually before her.

Accordingly, refusal of access does not render Ryanair’s rights “nugatory” or illusory. The principle of effectiveness cannot be invoked to override a substantive EU-law obligation, such as the confidentiality regime for ECN communications (para. 57).

4.6 Treatment of Ryanair’s Specific Arguments

4.6.1 The Alleged “Starting Presumption” of Necessity

Ryanair submitted that it was “inherently probable” that inspection of the Document was necessary to adjudicate fairly on the lawfulness of:

• the CCPC’s decision to assist the AGCM; and
• the District Court’s issuance of the warrant (para. 7).

Barrett J rejects the notion of a “starting presumption” of necessity (para. 8). Under O.31 r.18:

• the burden lies on the applicant (here, Ryanair); and
• necessity must be shown, not merely asserted or presumed.

Given that the Document was not operative in any impugned decision and that Ryanair already had the key evidence used in the warrant application, the Court finds no basis for such a presumption.

4.6.2 Proportionality Obligations on the CCPC and the District Judge

Ryanair argued that:

• because an administrative decision to seek a search warrant can affect constitutional rights, the CCPC was obliged to conduct a proportionality assessment when deciding to assist the AGCM and seek a warrant, and to equip the District Court to perform a corresponding proportionality analysis (para. 15); and
• the CCPC itself had accepted that it must act reasonably and proportionately in exercising its powers (para. 15).

The Court treats this as a “red herring” in the context of the inspection application (para. 16):

• There is no evidence that proportionality formed part of the statutory or EU-law framework governing either the CCPC’s Article 22 role or the District Judge’s decision regarding the warrant (paras. 16, 18).
• The District Judge’s task was confined to assessing whether statutory criteria for the warrant were met on the evidence actually presented (para. 18).
• Proportionality cannot be invoked to “create relevance” where the underlying decision does not, in law, depend on proportionality (para. 18).

Similarly, the Court dismisses the suggestion that the District Judge should have been informed that she was required to undertake a proportionality analysis (para. 17). He gives four reasons, all rooted in the absence of any such requirement in the governing legal framework and in the non-operative nature of the Document (para. 18).

4.6.3 The “Right to Know the Basis for Serious Allegations”

Ryanair contended that it should be “manifestly” entitled to see the basis for the serious allegations against it—i.e. AGCM’s suspicions as set out in the Document (para. 22).

Barrett J characterises this as unfounded (para. 22–23):

• Those suspicions were not the legal basis for the District Judge’s warrant; they were, at most, background (para. 23).
• Ryanair has pleaded no ground of challenge that requires examination of those suspicions (para. 23).
• Any supposed “entitlement” is therefore “illusory”: the suspicions:
  • played no role in the judicial decision,
  • ground no pleaded cause of action, and
  • are contained in a confidential, privileged, and EU-law-protected document (para. 23).

4.6.4 Alleged Duty on the CCPC to Form an Independent View of the Evidence

Ryanair argued that, in deciding to assist the AGCM, the CCPC was legally required to form its own view of the necessity and proportionality of that assistance, and that it sought to avoid scrutiny of that duty by withholding the Document (para. 20).

The judge’s response rests on procedural discipline (para. 21):

• He is not deciding the substantive proportionality or necessity issues, but addressing a “threshold procedural question” under O.31 r.18 (para. 21).
• To answer that procedural question, he must assess whether Ryanair’s pleaded proportionality theory has “any realistic foundation capable of generating relevance” (para. 21). This does not prejudge the substantive claim; it simply asks whether the theory can render the Document relevant for inspection.
• He concludes that proportionality and any alleged duty on the CCPC to form its own proportionality assessment “never formed part of the legal framework” governing the District Judge’s decision or the CCPC’s Article 22 role (para. 21). They thus cannot make the Document relevant or necessary.

In essence, the Court draws a line between:

• assessing whether a pleaded theory is even capable of making a document relevant for inspection; and
• adjudicating on the ultimate merits of that theory—something the Court expressly does not do at this stage (para. 21).

4.7 Interaction with the Strike-Out Under the Competition Act 2022

Barrett J notes that the inspection application has been “overtaken to a significant degree” by the CCPC’s successful application to strike out elements of the plenary proceedings under s.15AAA of the Competition Act 2022 (para. 26). However:

• He chooses to assess the inspection motion “as though that separate application had not been made” (para. 26); and
• Even on that generous footing—treating Ryanair’s case at its highest—the application for inspection still fails (para. 26).

This strengthens the precedential value of the judgment: its reasoning on inspection is not confined to a narrowed or truncated set of pleaded issues, but stands on its own.

5. Precedents Cited and Their Influence

5.1 Taylor v Anderton and Cooper Flynn v RTÉ

Taylor v Anderton [1995] 1 WLR 447, approved in Cooper Flynn v RTÉ [2000] 3 IR 344; [2004] IESC 27, is a touchstone for the proposition that:

• the right to inspect documents referred to in an affidavit is not automatic; and
• the court’s discretion on inspection is guided by necessity for fair disposal or cost-saving.

Barrett J invokes this line to reinforce the strictness of O.31 r.18 and to rebut Ryanair’s suggestion that mere reference to a document opens the door to inspection (para. 25).

5.2 O’Neill v Governor of Castlerea Prison

O'Neill v Governor of Castlerea Prison [2004] 1 IR 298 is another authority on the limits of disclosure and the threshold for access to sensitive material, especially where privilege or public interest concerns arise.

Although discussed only briefly (para. 25), its significance lies in:

• reinforcing that discovery/inspection is not to be used as an unfocused fishing expedition; and
• highlighting that the court must carefully balance litigants’ interests against public interests in non-disclosure.

5.3 Maye v Adams

In Maye v Adams [2015] IEHC 530, the High Court emphasised that necessity and relevance must be demonstrated clearly before intrusive disclosure orders are made.

Barrett J cites Maye as supporting the requirement that necessity be shown with some particularity, not assumed, especially where inspection would trench upon sensitive or privileged materials (para. 25).

5.4 Independent Newspapers v Murphy

Independent Newspapers (Ireland) Ltd v Murphy [2006] 3 IR 566; [2006] IEHC 276 (Clarke J) is central to Barrett J’s proportionality analysis concerning confidentiality (paras. 29, 35).

Clarke J held that where confidential material is sought, the court must weigh whether:

• “the interests of justice… undoubtedly outweigh any duty of confidence”, in which case disclosure may be ordered; or
• the duty of confidence should prevail, especially in regulatory or investigative contexts.

Barrett J applies this approach and concludes that in this case:

• the interests of the CCPC, AGCM, the ECN, and the State in effective competition enforcement would be “significantly undermined” if such communications were disclosable to investigation targets (para. 29); and
• this is not a case in which the interests of justice “undoubtedly” outweigh the duty of confidence (para. 29).

5.5 Murphy, Ambiorix, and Bradley – Public Interest / Executive Privilege

These Irish cases shape the domestic doctrine of public interest / executive privilege:

• Murphy v Dublin Corporation [1972] IR 215 – early recognition of State privilege and the need for careful judicial scrutiny of privilege claims.
• Ambiorix v Minister for the Environment (No.1) [1992] 1 IR 277 – further elaboration on how such privilege should be claimed and weighed.
• Bradley v Minister for Justice [2017] IEHC 422 – confirmation that there is no blanket immunity even for communications between An Garda Síochána and the Prison Service; privilege must be assessed on a case-by-case basis (para. 30).

Barrett J draws on these to show that:

• the Court must identify the specific public interest in question (here, ECN cooperation);
• consider the potential damage disclosure would cause; and
• weigh that against any demonstrated need of the requesting party (paras. 30–31).

5.6 Pfleiderer, EnBW, and Unión de Almacenistas – EU Competition & Access to Files

These CJEU/General Court cases are analysed in detail above (section 4.4.3). Their joint effect in the present judgment is to:

• acknowledge that EU law does not impose an absolute bar on access to competition files (Pfleiderer); but
• affirm strong, category-based presumptions against disclosure, especially of:
  • leniency materials (EnBW); and
  • correspondence between competition authorities (Unión de Almacenistas).

Barrett J uses these authorities to:

• support his reading of Article 27(2) as extending to NCA–NCA communications (paras. 45, 50–51);
• justify treating the AGCM’s request as falling within a presumptively confidential category; and
• explain why national procedural rules on inspection cannot be applied in a way that undermines the structural confidentiality regime of EU competition law (paras. 45–52, 56–57).

5.7 Les Verts and Unión de Pequenos Agricultores – Rule of Law and Effectiveness

Les Verts v European Parliament and Unión de Pequenos Agricultores v Council are invoked by Ryanair to ground their rule-of-law and effective-remedy arguments (para. 54).

Barrett J accepts the underlying principles but distinguishes their application. He emphasises that:

• those cases do not give a party an automatic right to all potentially helpful documents; and
• the principle of effectiveness does not authorise national courts to override substantive EU law, such as Article 27(2)’s confidentiality carve-outs (para. 57).

6. Simplifying Key Legal Concepts

To make the judgment more accessible, it is helpful to clarify several core concepts.

6.1 Order 31 r.15 vs r.18 RSC

• O.31 r.15 – Notice to Produce:
  • A procedural device: “Show me the document you have referred to, if you plan to rely on it.”
  • If the holder refuses, the only sanction is that they cannot later rely on that document as evidence.
  • It does not empower the requesting party to go to court and compel production.
• O.31 r.18 – Inspection Order:
  • Requires a court order.
  • Will only be made if the Court is satisfied that inspection is necessary to decide the case fairly or to save costs.
  • The Court has discretion, and must also consider privilege and confidentiality.

6.2 “Operative Role”

When challenging a decision, only documents that played an “operative role” in making that decision are normally relevant. A document:

• has an operative role if the decision-maker relied on it or it formed part of the legal or factual basis of the decision;
• is merely “background” if it explains how the matter came to be investigated but did not influence the decision itself.

In this case, the AGCM’s formal request was background; the District Judge did not rely on it when issuing the warrant.

6.3 Public Interest / Executive Privilege

This is a privilege allowing the State (or a public body) to withhold documents where disclosure would harm the public interest—for example:

• national security;
• ongoing criminal or regulatory investigations; or
• confidential law enforcement methods.

Courts will:

• require the State to justify the claim of privilege; and
• balance the public interest in confidentiality against the litigant’s need for the documents.

6.4 European Competition Network (ECN) and Article 22 Requests

The ECN is a cooperative network of:

• the European Commission; and
• the national competition authorities of EU Member States.

They share information and assist each other in enforcing EU competition rules. Under Article 22 of Regulation 1/2003:

• one NCA (e.g. AGCM) can ask another (e.g. CCPC) to carry out investigative measures on its behalf.

Such requests and related communications are treated as confidential under EU law for systemic reasons: if undertakings could routinely gain access to them, cooperation and effective enforcement would be undermined.

6.5 Leniency and Follow-On Damages

• Leniency: Programme under which cartel members receive reduced or no fines if they confess and cooperate.
• Follow-on damages actions: Civil claims by victims of anticompetitive conduct that “follow on” from a competition authority’s finding of infringement.

Cases like Pfleiderer and EnBW concern requests for access to leniency materials in such damages actions. They show that:

• access is not absolutely barred; but
• there is a strong presumption against it, and courts must carefully balance the interests of private enforcement against the need to preserve public enforcement tools.

6.6 Principle of Effectiveness

Under EU law, national rules and practices:

• must not make it “impossible or excessively difficult” to exercise EU rights; but
• do not guarantee parties every procedural advantage they might like.

The principle cannot override substantive EU obligations (like confidentiality rules) that form part of the EU legal order.

7. Impact and Broader Significance

7.1 For Irish Competition Enforcement and Regulatory Cooperation

The judgment sends a clear signal that:

• Irish courts will take seriously the confidentiality of ECN communications, including Article 22 requests;
• targets of investigations cannot normally use domestic discovery/inspection rules to obtain copies of such requests; and
• public interest/executive privilege, combined with EU-law confidentiality, will provide a powerful shield for cross-border regulatory cooperation.

This will likely reassure both the CCPC and foreign NCAs that Ireland is a safe “node” in the ECN: cooperation with the CCPC will not readily expose internal exchanges to inspection in Irish courts.

7.2 For Irish Civil Procedure and Discovery

From a procedural perspective, the case reinforces several points:

• O.31 r.15 notices to produce are limited; they cannot be leveraged into compulsory production devices.
• O.31 r.18’s necessity test is stringent. Litigants must:
  • tie their request to specific pleaded issues; and
  • show how the document could meaningfully affect the resolution of those issues.
• Courts will be cautious in allowing inspection of sensitive documents, particularly where public interest or international regulatory cooperation is in play.

7.3 For Judicial Review of Warrants and Regulatory Decisions

The “operative role” analysis has repercussions for challenges to search warrants and other intrusive measures:

• Challenges will normally be assessed by reference to the material actually before the issuing court.
• Background communications that did not inform the decision-maker’s reasoning will rarely be relevant, still less “necessary” for inspection.
• Attempts to expand the legal framework (e.g. by importing proportionality requirements that are not in the statute) are unlikely to succeed in generating relevance for inspection.

7.4 For EU Law and National Courts

The judgment exemplifies how national courts must:

• apply their own procedural rules (here, O.31 rr.15 and 18); but
• do so in a manner consistent with substantive EU-law obligations—in this case, the confidentiality of ECN communications under Regulation 1/2003 and Directive 2019/1.

It may serve as a reference point for other Member State courts grappling with similar tensions between:

• requests for access to competition authority files in domestic proceedings; and
• EU-level structural requirements designed to safeguard the effectiveness of the ECN.

8. Conclusion

Ryanair DAC & Ryanair Holdings plc v CCPC (No. 3) [2025] IEHC 644 is formally a ruling on a narrow inspection motion, but it carries broader doctrinal weight.

At the Irish procedural level, the Court clarifies that:

• a mere reference to a document in an affidavit does not, of itself, confer a right of inspection;
• a notice to produce under O.31 r.15 operates only to limit the non-producing party’s future reliance on the document; and
• inspection under O.31 r.18 is subject to a strict necessity test, intrinsically linked to relevance and subject to judicial discretion.

At the public-law and EU-law level, the judgment:

• affirms public interest/executive privilege over sensitive regulatory communications, especially in competition enforcement;
• recognises a structural EU-law presumption of confidentiality for ECN communications, including Article 22 requests, grounded in Article 27(2) of Regulation 1/2003 and related recitals; and
• holds that rights to an effective remedy and the principle of effectiveness do not override this structural confidentiality where the document played no operative role in the impugned decision and the applicant already has the materials actually relied on.

Taken together, these strands of reasoning establish a robust and coherent stance: national courts must protect the confidentiality of ECN communications and cannot deploy domestic discovery rules to undermine EU competition enforcement architecture, particularly where the document is neither operative nor necessary for the fair disposal of the domestic proceedings.

Disclaimer: This commentary is an academic analysis of the judgment and does not constitute legal advice.