Interim measures

Interim Measures

Interim Measures. Introduction

Regulation 17 did not directly address the issue of whether the Commission had power to adopt interim measures in relation to a suspected infringement of Article 101 and 102. However, in its 1980 order in the Camera Care case, the Court of Justice held that Article 3(1) of that regulation conferred on the Commission the power to take interim measures 1 .

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The Court held that there might be a need to adopt interim measures: “when the practice of certain undertakings in competition matters has the effect of injuring the interests of some Member States, causing damage to other undertakings, or of unacceptably jeopardising the Community's competition policy”.

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Article 8(1) of Reg. 1/2003 explicitly empowers the Commission to adopt interim measures. It provides that: “In cases of urgency due to the risk of serious and irreparable damage to competition, the Commission, acting on its own initiative may by decision, on the basis of a prima facie finding of infringement, order interim measures”.

Other Considerations

In addition, the Commission has been expressly granted the power to order interim measures by specific regulation, such as Regulation (EC) 659/1999 2 , on the application of rules on State aids control, and Regulation (EEC) 3975/87 concerning the application of competition rules to the air transport sector 3 .

Resources

See Also

References

  • Information about Interim Measures in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Notes


[Note 1]
Case 792/79 R Camera Care [1980] ECR 119.
[Note 2]
Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article 93 of the EC Treaty (OJ L 83/1, 27. 3. 1999), recital 12: “Whereas in cases of unlawful aid, the Commission should have the right to obtain all necessary information enabling it to take a decision and to restore immediately, where appropriate, undistorted competition; whereas it is therefore appropriate to enable the Commission to adopt interim measures addressed to the Member State concerned; whereas the interim measures may take the form of information injunctions, suspension injunctions and recovery injunctions; whereas the Commission should be enabled in the event of non-compliance with an information injunction, to decide on the basis of the information available and, in the event of non-compliance with suspension and recovery injunctions, to refer the matter to the Court of Justice direct, in accordance with the second subparagraph of Article 93(2) of the Treaty”.
[Note 3]
Council Regulation (EEC) No 3975/87 of 14 December 1987 laying down the procedure for the application of the rules on competition to undertakings in the air transport sector (OJ L 374, 31.12.1987, p. 1-8), as amended by Council Regulation (EEC) No 1284/91 of 14 May 1991(OJ L 122/2, 17.5.1991), Article 4a “Interim measures against anticompetitive practices”: “Without prejudice to the application of Article 4(1), where the Commission has clear prima facie evidence that certain practices are contrary to Article 85 or 86 of the Treaty and have the object or effect of directly jeopardizing the existence of an air service, and where recourse to normal procedures may not be sufficient to protect the air service or the airline company concerned, it may by decision take interim measures to ensure that these practices are not implemented or cease to be implemented and give such instructions as are necessary to prevent the occurrence of these practices until a decision under Article 4(1) is taken.”

Further Reading

  • Information about Interim Measures in “An Introduction to EU Competition Law”, Moritz Lorenz (Cambridge University Press)

Interim measures (“référé”)

This is not an independent form of action. An applicant can only ask for interim measures in parallel to its main action. For instance, with regard to DG Competition's antitrust activities, an applicant can introduce an action for annulment of a prohibition decision imposing a fine on it (main proceedings) and, in parallel, ask the Court to suspend the payment of the fine while the main proceedings are pending. The reason for making such a request for interim measures is that the bringing of the main proceedings does not suspend the obligations under of the Commission's decision (so the company has to pay the fine or give a bank guarantee even if it brings an action for annulment before the Court).

Resources

See Also

References

  • Information about Interim measures in the Antitrust Manual of Procedures for the application of Articles 101 and 102 TFEU (Internal DG Competition)

Further Reading

  • Information about Interim measures in EU Competition Procedure, 3rd. Edition, Edited by Luis Ortiz Blanco (Oxford University Press)

Interim measures in the European Union Law

Concept of Interim measures provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): 1. Conservatory measures imposed on firms by the Commission in relation to a competition case, in which a final decision on the substance has not been reached yet, in order to avoid anti-competi-tive behaviour leading to irreversible damage before being sanc-tioned. Interim measures may be taken on the Commission's own initiative, but are often requested together with a formal complaint. They can only be granted if the two following conditions are both met: — a firm's behaviour prima facie constitutes an infringement of competition rules, and — there is urgency, that is, a risk of serious and irreparable harm to the applicant.

For instance, a company whose existence is threatened by a poten-tially anti-competitive conduct of another company may request that the Commission investigate the matter under competition law, and in addition ask that the Commission prohibit the conduct in question until the investigation is terminated by a formal decision.

(See: Order of the European Court of Justice in Case 792/97 R Camera Care v Commission [1980] ECR, p. 119, at paragraph 12–21). The Commission can also take interim measures in merger cases in order to prevent the implementation of concentrations before the Commission has cleared them. The merger regulation prohibits the implementation prior to the Commission's authorisation, to avoid irreversible changes to the market structure before it is certain that the conditions for clearing a concentration are actually assembled.

(See: Articles 7 and 8(4) of the merger regulation.) 2. Interim measures can also be granted by the president of the Court of First Instance, to prevent a company from suffering serious and irreparable harm through the enforcement of a Commission decision, the legality of which is challenged by that same company in a main action.

(See: Articles 104–110 of the rules of procedure of the Court of First Instance.)

Commitments

Commitments

Commitments (or remedies) in the European Union Law

Concept of Commitments (or remedies) provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Proposal by the parties to a () concentration to modify their origi-nally notified project within a specified period (for example, by divest-ing a business or assets). Such commitments must address the competition concerns raised by the Commission and restore compe-tition in the relevant product and geographic markets. They can form the basis for the Commission's clearance of the notified concentra-tion. The Commission may attach () conditions and/or () obliga-tions to its clearance decision, so as to ensure compliance with the commitments offered.

A similar approach is applied by the Commission in procedures aimed at clearing ( Negative clearance) or exempting notified agreements ( Individual exemption), as well as in proceedings dealing with the () abuse of a dominant position.

(See: Articles 6(2) and 8(2) of the merger regulation; Commission notice on

Substitutability

Substitutability

Substitutability in the European Union Law

Concept of Substitutability provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Measure of the extent to which products may be seen as inter-changeable from the viewpoint of producers or consumers. A firm's pricing policy for a specific product is disciplined if consumers have the possibility to buy another product, which they judge as being equivalent by its nature, use and/or price (demand-side substitution). Additional competitive constraint on the firm may stem from produc-ers of other products capable of switching their production without delay towards the product in question at negligible cost and willing to enter into competition on the market segment concerned (supply-side substitution). Product substitutability is an important element in defining the relevant product market ( Relevant market).

Actual competitor

Actual competitor

Actual competitor in the European Union Law

Concept of Actual competitor provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Firm which is either currently active on the same relevant market as the company under investigation, or which is able to switch produc-tion to the relevant products and market them in the short term without incurring significant additional costs or risks in response to a small and permanent increase in relative prices (immediate supply-side substitutability).

(See: Commission notice on the definition of the relevant market for the purposes of Community competition law (OJ C 372, 9.12.1997, p. 5).)

Advisory committee

Advisory committee

Advisory committee in the European Union Law

Concept of Advisory committee provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Committee composed of representatives of the Member States which is consulted by the Commission in antitrust and merger cases where such a consultation is foreseen. A preliminary draft decision by the Commission is submitted to, and discussed with, the advisory committee in question. The advisory committee issues an opinion, which shall be taken into account in the final Commission decision.

(See: Article 10 of Regulation No 17 and Article 19 of the merger regulation.)

Passive sales

Passive sales

Passive sales in the European Union Law

Concept of Passive sales provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Sales in response to unsolicited requests from individual customers, including delivery of goods or services to such customers. Sales generated by general advertising or promotion in the media or on the Internet that reaches customers in other distributors' exclusive terri-tories or customer groups, but is at the same time a reasonable way to reach customers outside those territories or customer groups (for instance, in non-exclusive territories or in one's own territory), are normally considered passive. Restrictions on passive sales in vertical agreements are hard-core restrictions and fall outside the Commission's block exemption regulation on vertical restraints.

(See: Commission Regulation 2790/99 on the application of Article 81(3) of the Treaty to categories of vertical agreements and concerted practices (OJ L 336, 22.12.1999); Commission notice — guidelines on vertical restraints (OJ C 291, 13.10.2000).)

Resources

See also

  • Active sales

Undertaking

Undertaking

Undertaking in the European Union Law

Concept of Undertaking provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): For the purpose of EU antitrust law, any entity engaged in an economic activity, that is, an activity consisting in offering goods or services on a given market, regardless of its legal status and the way in which it is financed, is considered an undertaking. To qualify, no intention to earn profits is required, nor are public bodies by defini-tion excluded. The rules governing concentrations speak of 'undertakings concerned', that is, the direct participants in a merger or in the acqui-sition of control.

(See for details: Commission notice on the concept of undertakings concerned (OJ C 66, 2.3.1998).)

Predatory pricing

Predatory pricing

Predatory pricing in the European Union Law

Concept of Predatory pricing provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): A (deliberate) strategy, usually by a dominant firm, of driving competi-tors out of the market by setting prices below production costs. If the predator succeeds in driving existing competitors out of the market and in deterring the future entry of new firms, he can subsequently raise prices and earn higher profits. Predatory pricing by dominant firms is prohibited by EU competition law as () abuse of a () dominant position. Prices set below average variable costs can be presumed to be predatory, because they have no other economic rationale than to eliminate competitors, since it would otherwise be more rational not to produce and sell a product that cannot be priced above average variable cost. Where prices are set below average total (but above variable) costs, some additional elements proving the predator's intention need to be established in order to qualify them as predatory, given that other commercial considerations, like a need to clear stocks, may lie at the heart of the pricing policy.

Extra-territoriality

Extra-territoriality

Extra-territoriality in the European Union Law

Concept of Extra-territoriality provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Term normally used to describe the exercise by a sovereign State of jurisdiction over foreigners in respect of acts done outside the borders of that State. One could say that — in a very broad sense — the EU applies its competition rules in an extra-territorial manner when it makes use of the () effects doctrine.

State measure

State measure

State measure in the European Union Law

Concept of State measure provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Law, ministerial decree, decision or other administrative act adopted by a Member State. A Member State's omission to act may also constitute a measure. The Commission may start () infringement proceedings if State measures, taken in relation to () public under-takings and undertakings to which Member States grant special or exclusive rights, contravene EU competition law.