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.)