Urgency in antitrust cases: Can competition authorities intervene in time?

Workshop organised by Concurrences with Irène Luc (Autorité de la concurrence) in partnership with Wilhelm & Associés and Analysis Group.

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Emmanuelle Claudel

National procedures will be reformed to transpose Directive No. 1/2019 on making national competition authorities more effective ("ECN + Directive"). This raises the question of the effectiveness of the protective tool, described as "potentially essential" by the Commission. Our economy is digitalizing and accelerating, and traditional sanction procedures are said to be unsuited to the speed of developments in the digital sector. This has been argued in particular in the Google Shopping case. Why then did the Commission not make use of the interim litigation?

To begin the discussion, I will make three observations.

The first is specific to European law. While Regulation 1/2003 provided a legal basis for the emergency measures, the Commission did not use them. The conditions laid down in Article 8 of Regulation 1/2003, which governs interim proceedings, are indeed a bar to their use. Firstly, European interim measures can only be imposed ex officio and are subject to a prima facie finding of infringement, understood as "being satisfied as to the existence of a reasonably strong presumption of infringement". The standard is high. In addition, it must be demonstrated that there is a risk of serious and irreparable harm to competition, and only to competition. The meaning of the adjective "irreparable" was discussed. Recital 34 of the ECN+ Directive refers to the fact that the aim is to prevent the market structure from changing to such an extent that it is difficult to restore it. Another explanation for the Commission’s reluctance to use precautionary measures is political: the Commission is reluctant to mobilise Article 8 because, on the one hand, of the duplication of analyses involved in a provisional analysis followed by a substantive analysis), and because, on the other hand, of the risk of errors attached to a rapid analysis. Preference was therefore given to the commitment procedure.

Photos © Léo-Paul Ridet

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  • Commercial Court of Paris
  • French Competition Authority (Paris)
  • University Paris II Panthéon‑Assas
  • Wilhelm & Associés (Paris)
  • Analysis Group (Paris)