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Interim measures

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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

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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.)

Inter-brand competition

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Inter-brand competition

Inter-brand competition in the European Union Law

Concept of Inter-brand competition provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Competition between firms that have developed brands or labels for their products in order to distinguish them from other brands sold in the same market segment. Although not perceived as being fully equivalent by consumers, branded products nevertheless compete with each other, but normally to a lesser degree. Coca-Cola versus Pepsi is an example of inter-brand competition.

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  • Intra-brand competition

Implementation

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Implementation

Implementing regulation in the European Union Law

Concept of Implementing regulation provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Legislative act by the Commission, based on an enabling regulation by the Council, which specifies Community law provisions. Examples of such secondary legislation adopted by the Commission in the area of competition law are Commission Regulation No 2842/98 on the hearing of parties in antitrust proceedings (OJ L 354, 30.12.1998), Commission Regulation No 447/98 on certain aspects of the merger control procedure (OJ L 61, 2.3.1998) and the various block exemp-tion regulations adopted by the Commission.

Intra-brand competition

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Intra-brand competition

Intra-brand competition in the European Union Law

Concept of Intra-brand competition provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Competition among distributors or retailers of the same branded product, be it on price or non-price terms. For example, a pair of Levi's jeans may be sold at a lower price in a discount store as compared to a department store, but often without the amenities in services that the latter provides.

Resources

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  • Inter-brand competition

Individual exemption

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Individual exemption

Individual exemption in the European Union Law

Concept of Individual exemption provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Decision of the Commission pursuant to Article 81(3) of the EC Treaty to exempt notified agreements between companies from the prohibi-tion of Article 81(1) of the EC Treaty, on the basis of an individual assessment (Block exemption regulation). In broad terms, restric-tive agreements qualify for exemption if their benefits to general welfare (product improvement, technical or economic progress, benefits to consumer) outweigh their restrictive effects on competition.

International cooperation

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International cooperation

International cooperation in the European Union Law

Concept of International cooperation provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): Cooperation in the area of competition policy and enforcement, between competition agencies in two (bilateral) or more countries (trilateral, plurilateral), which mostly takes place in an informal way, but sometimes on the basis of formal cooperation agreements. It aims to exchange information in specific antitrust or merger cases of mutual interest to the agencies, to coordinate the respective approaches in a number of key items — such as market definition, remedies, etc. — and to provide each other with assistance in enforce-ment activities.

Beyond this daily case-related cooperation, competition agencies cooperate within multilateral and international forums — such as the OECD Competition Committee, the Unctad Intergovernmental Group of Competition Experts and the WTO Working Group on Trade and Competition — to exchange views on various policy matters, promote consensus on best practices and agree upon policy recommendations addressed to their governments and to the private sector.

International competition network

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International competition network

International competition network (ICN) in the European Union Law

Concept of International competition network (ICN) provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): A project-oriented, consensus-based, informal network of antitrust agencies from developed and developing countries. The ICN serves to share experiences and exchange views on competition issues deriving from an ever-increasing globalisation of the world economy, as well as to encourage the dissemination of antitrust experience and best practices, promote the advocacy role of antitrust agencies and seek to facilitate international cooperation. The ICN was announced publicly on 25 October 2001 in New York and will address antitrust enforce-ment and policy issues of common interest and formulate proposals for procedural and substantive convergence through a results-oriented agenda and structure. Any national or regional competition agency responsible for the enforcement of antitrust laws may become a member of the ICN. The network will also actively seek advice and contributions from the private sector and various non-governmental organisations. The ICN is intended as a virtual structure without any permanent secretariat, flexibly organised around its projects, guided by a steering group which will identify projects and devise work plans for approval of the ICN as a whole. There will be one ICN conference per year, which will bring together heads of antitrust agencies.

(More information can be obtained at: www.internationalcompetitionnetwork.org)

Intellectual property right

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Intellectual property right

Intellectual property right (IPR) in the European Union Law

Concept of Intellectual property right (IPR) provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): General term for the assignment of property rights through, for example, patents, copyrights or trademarks. These property rights give the holder the exclusive right to exploit the innovation. The holder thus has monopoly power on the use of the item, normally for a spec-ified period of time and within a specific geographic area. This power allows the holder of an intellectual property right to restrict imitation and duplication of the product concerned. IPRs prevent () free riding by other companies and constitute an incentive to undertake R & D efforts.

Infringement proceeding

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Infringement proceeding

Infringement proceeding in the European Union Law

Concept of Infringement proceeding provided by the “Glossary of terms used in EU competition policy” (Antitrust and control of concentrations, published in 2002): An infringement proceeding is an action against a Member State, which fails to fulfil an obligation under the EC Treaty or under second-ary EU legislation. The Commission leads the proceeding on its own initiative or at the request of another Member State. Individuals do not have the possibility to force the Commission to start an infringe-ment proceeding. If justified, the proceeding can result in a judgment of the European Court of Justice, stating that the Member State in question has indeed committed an infringement. In case of non-respect of such a judgment, the Court can impose a penalty payment on the failing Member State in a separate proceeding.

(See: Articles 226–228 of the EC Treaty.)

Informal contacts

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Informal contacts

Informal contacts

Some NCAs consult DG Competition already prior to the formal consultation obligations on their cases, e.g. in ECN sector subgroups or bilaterally. The ECN unit should always be kept informed about such discussions. If a policy line is to be taken in these informal contacts, the sectoral unit should speak to the ECN unit before agreeing with the NCA on that line. Where, in the context of informal contacts, the ECN unit obtains information on a given sector or on a particular case, it should keep the unit concerned informed.

Resources

See Also

References

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

Further Reading

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