Where you would want to apply interim measures is where you have novel cases and the problem of doing interim measures… is that you still have to prove that it is needed[1].
In the landscape of EU competition enforcement, interim measures have long been the exception rather than the norm. While theoretically powerful, their practical use has remained limited—so much that between IMS Health (2001) and Broadcom (2019), the European Commission has not adopted a single interim measure decision. This 18 year gap raises an important question: why has the Commission been so reluctant to use this tool?
At its core, an interim measure is a provisional remedy: it is meant to prevent serious and irreparable harm to competition before the final decision in a case is adopted. It works as a safeguard against the irreversible consequences that could result if the allegedly anticompetitive conduct were allowed to continue unchecked during the investigation.
Although in Regulation 17 the Commission was not explicitly granted such powers. The power to impose interim measures was originally derived from the case law, indeed, in Camera Care the CJEU held that the EC had the implied power to order interim measures to prevent infringement decisions from becoming ineffectual or even illusory because of the action of certain undertakings[2]. This was later codified in Article 8 of Regulation 1/2003, which formally enables the Commission to impose interim measures ex officio—that is, on its own initiative. This also meant that undertakings no longer enjoy a right to request for such measures directly.
Several factors help explain the Commission’s longstanding reluctance:
- First, the removal of the complainant’s right to request interim measures has reduced the pressure on the EC to act. As suggested in paragraph 80 of the Commission’s Complaints Notice, complainants should seek interim relief to national courts or NCAs[3]. In practice, this has shifted the burden of interim enforcement to the national level.
- Second, interim measures require a parallel procedure with distinct procedural guarantees and the likelihood of judicial review. For a resource-limited authority like DG COMP, this implies added complexity and risks delaying the main investigation.
- Third, the Commission must show not only a prima facie infringement, but also the existence of a serious and irreparable harm to competition. This requires a high evidentiary standard, particularly difficult to meet in cases involving new theories of harm.
- Fourth, if interim measures are later found unjustified, the Commission may face damages (Schneider Electric). This can act as a deterrent effect and it can be magnified in cases involving new legal theories of harms, where the danger of a false positive is greater.
- Fifth and lastly, there’s the concern of false positives, where early intervention, especially in complex or innovative markets, risks “picking winners.”
Yet in Broadcom (2019), the Commission’s approach shifted. The Commission imposed interim measures to order Broadcom to stop imposing exclusivity requirements to purchasers—its first use in nearly two decades. Interestingly, these interim measures later formed the basis for a commitments decision under Article 9. This suggest that interim measures can function as a form of strategic leverage to prompt voluntary compliance under Article 9.
This evolution could indeed point to a more pragmatic approach: while still rarely used, interim measures may become a tool of strategic negotiation for future commitment and therefore, to address the concerns of the enforcer in a more direct and effective way. In this sense, interim measures may be awakening, not as blunt instruments, but as subtle tools for anticipatory enforcement.
[1] Alec J. Burnside and Adam Kidane, “Interim Measures: An Overview of EU and National Case Law,” e-Competitions Bulletin, June 7, 2018: https://www.concurrences.com/en/review/issues/no-4-2016/case-comments/evidences-the-general-court-of-the-european-union-holds-private-wiretaps
[2] Order of the Court, 17 January 1980, Camera Care Ltd v Commission of the European Communities, para. 2, ECLI:EU:C:1980:18.
[3] Commission Notice on the handling of complaints by the Commission under Articles 81 and 82 of the EC Treaty.
Co(E)mpetition Procedure 