On the 15th of January 2025 the Commission issued a supplementary Statement of Objections to Lufthansa finding that the imposition of interim measures was warranted. A little more than a month later, the Commission announced the closing of the interim proceedings. No action, no explanation. And no surprise. This would have been the only the second time (the first time being the famous Broadcom case) since the adoption of Regulation 1/2003 that the Commission adopted interim measures.
Despite repeated calls for faster intervention in fast-moving markets, interim measures remain an almost mythical creature in EU antitrust enforcement – legally possible, practically unused. The Lufthansa case is only the latest reminder: the Commission still hesitates to pull the emergency brake, even when it has one. So why is this procedural tool so rarely used? And what does that say about the state of competition enforcement today?
On paper, the Commission has the power to impose interim measures under Article 8 of Regulation 1/2003. But the way the criteria are constructed makes this tool nearly unusable. The bar is set so high that few cases ever qualify.
In order to impose interim measures, the Commission must prove that an undertaking’s conduct is prima facie anticompetitive and that there’s a risk of serious and irreparable harm to competition. Not harm to rivals or harm to consumers. But harm to “competition” – a vague concept explaining the Commission’s hesitation. Even the notion of “irreparable” is narrowly construed: if damages are theoretically calculable or the harm reversible in the long term, interim measures are out.
The result? A procedural trap. By the time the Commission gathers enough evidence to prove prima facie infringement, the urgency has usually passed. And if urgency is clear from the start, there’s rarely enough evidence.
Beyond these legal thresholds, there’s a quieter reason interim measures are barely used: the Commission does not want to get it wrong. In order to be effective, interim measures need to be imposed sooner rather than later. But fast action carries risk. If the Commission imposes measures and the case later collapses, the political and reputational fallout is immediate. It’s safer to wait, stay vague, and let the procedure run its course, even if that could takes years.
The incentives for imposing interim measures are imbalanced. Acting early and being wrong is visible and costly. By contrast, delayed intervention carries little institutional risk and is quietly absorbed into the normal course of enforcement. Particularly since the IMS Health case, where the Commission’s interim decision was overturned by the Court of First Instance, this risk-averse culture has hardened. Even 20 years later, the Commission still seems to be scared that interim measures will be overturned by the Courts.
Meanwhile, the cost of delay is mostly borne by smaller competitors, market dynamics, innovation. While for the Commission, there is little institutional downside to waiting, for affected markets, the damage may already be done. By the time a final decision arrives, rivals may have exited, consumer choice may have shrunk, and the harm may no longer be reversible. In such a system, early intervention is discouraged, even when inaction means lasting distortion.
None of this is to say that the Commission should be able to impose interim measures lightly. The point of interim relief is not to punish, but to prevent irreparable harm while facts are still uncertain and being investigated. That aspect justifies the existence of a higher threshold for the imposition of interim measures than for a final decision. Premature or poorly grounded measures would risk overreach, market disruption, and damage to undertakings’ reputation – especially if it turns out that there was no breach of competition rules. The challenge is to strike a balance: protecting procedural fairness without rendering interim measures functionally impossible.
The solution lies in rebalancing the system, making the existing tools actually usable.
First, one fix lies in how the Commission interprets the harm requirement. Article 8 of Regulation 1/2003 asks for “serious and irreparable damage to competition,” but this has been read too restrictively. The French Competition Authority uses a more practical standard: “irreversibility.” It focuses on whether the market risks tipping in a way that can’t be undone, even if compensation is possible later. Crucially, this isn’t a matter of rewriting the law. The current wording allows for such a broader reading.
Second, interim measures could be framed more explicitly as temporary risk-management tools, not mini infringement decisions. That means treating reversibility as a feature, not a flaw. If interim relief is later withdrawn or adjusted, that should be seen as responsible enforcement, not a failure.
The Lufthansa case probably won’t go down as a landmark but it can be a reminder. The interim measures tool remains trapped by caution. If the Commission wants to act meaningfully in dynamic markets, it must stop treating interim measures as exceptional and start treating them as essential. The legal basis is there. The urgency is there. The only question is whether the Commission is willing to use the powers it already has.
Co(E)mpetition Procedure 