When an undertaking engages in anti-competitive behaviour, it may be necessary to intervene before a final decision is made, finding the infringement and imposing a sanction. Article 8 of Regulation 1/2003 addresses this problem by allowing the Commission to take interim measures to prevent serious and irreparable damage to competition. However, despite its usefulness, this tool has rarely been applied to date. Why is this, and how can the Commission make full use of it?
Article 8 of Regulation 1/2003 lays down three cumulative conditions for the Commission to be able to take interim measures on its own initiative:
- A prima facie infringement: the Commission must prove the appearance or likelihood of an infringement, without conducting an analysis as detailed as for a final decision.
- Serious and irreparable harm: there must be a risk of serious harm to competition, leading to a change in market that is difficult to reverse.
- Temporary measures: Article 8(2) specifies that these measures are temporary and renewable where necessary and appropriate.
Prior to the adoption of Regulation 1/2003, the Commission could only take interim measures at the request of complainants in accordance with Article 3 of Regulation No. 17. However,in Camera Care, the Court of Justice recognised that the Commission should be able to take interim measures which are “which are indispensable for the effective exercise of its functions and, in particular, for ensuring the effectiveness of any decisions requiring undertakings to bring to an end infringements which it has found to exist”[1]. In other words, by recognising this implicit power, the Court sought to preserve and strengthen the effectiveness of European competition law.[2]
While the Commission has applied these measures on several occasions, paradoxically, the introduction of Regulation 1/2003, which formally granted it the power to take such measures autonomously, has resulted in only one use so far in the Broadcom case[3]. Accused of abusing its dominant position by imposing exclusive purchasing obligations, Broadcom was obliged by the Commission to suspend the exclusivity clauses in its contracts. This decision also encouraged Broadcom to accept commitments under Article 9 of Regulation 1/2003.
But why are these measures, so useful in theory, so rarely used in practice? One of the reasons probably lies in the complexity of the procedure imposed by Regulation 1/2003. In order to adopt interim measures, the Commission must issue a Statement of Objections, give the undertaking concerned access to the file, allow it to submit written comments, and organise a hearing if requested. Some authors also point to other factors, such as:
- the removal of the possibility for complainants to apply for interim measures,
- the fact that complainants can no longer request interim measures solely based on the harm caused to them, as the Commission can now only adopt such measures if they are likely to cause serious and irreparable harm to competition itself,
- the need for the Commission to adopt a more economic approach to Articles 101 and 102 TFEU,
- or even the ‘shock’ of the order of the President of the General Court in the IMS Health case,[4] which suspended the Commission’s decision on interim measures.
However, there exist several ways in which interim measures could be applied in practice:
- Simplification of the procedure: consideration could be given to holding a hearing once the measures have been issued and reducing the need for written comments, particularly in cases of extreme urgency. Access to the file could also be limited to information directly related to the interim measures.
- Lowering the threshold for intervention: some Member States have lowered the legal threshold for intervention. A simple ‘reasonable suspicion’ could suffice. Similarly, ‘serious harm’, without necessarily having to be irreparable, would give the Commission greater flexibility.
- Restoring the parties’ right to request interim measures: as provided for in Regulation No. 17, the parties could once again be given the right to request interim measures from the Commission and challenge any refusal, which could make this mechanism attractive once again.
In 2017, Commission Vestager stated that “if you have a tool, you should of course ask yourself why it is never used”[5]. With the emergence of fast-moving digital markets, the use of interim measures conferred on the Commission by the DMA seems all the more useful and necessary to nip anti-competitive behaviour in the bud. If the Commission really wants to live up to its ambitions, its toolbox must not remain closed.
[1] Order of 17 January 1980, Camera Care Ltd v Commission of the European Communities, Case 792/79 R, EU:C:1980:18, para. 18.
[2] Despoina Mantzari, “Interim Measures in EU Competition Cases: Origins, Evolution and Implications for Digital Markets”, CLES Research Paper Series 1/2020, p. 1-22, at p. 5.
[3] Commission decision of 16 October 2019, Broadcom, case AT.40608.
[4] Order of 10 December 2005, IMS Health v Commission, T-184/01, EU:T:2005:95.
[5] Rochelle Toplensky, “EU considers tougher competition powers”, Financial Times, 2 July 2017, retrieved 28 May 2025, https://www.ft.com/content/7068be02-5f19-11e7-91a7-502f7ee26895.
Co(E)mpetition Procedure 