Interim measures

Author Definition

Definition

Interim measures may be prohibitory or mandatory and may be granted by a court or a public authority to preserve or restore the status quo, or otherwise provide temporary relief pending resolution of the merits of a case. This powerful instrument ideally ensures that the effectiveness of any remedy finally adopted in the main action will not be jeopardized.

The grant of interim measures is typically conditioned on a demonstration that (i) the prima facie elements of an infringement appear to be satisfied or (in some jurisdictions) there is a serious question to be tried, and (ii) the measures are justified by the risk of serious, irreparable harm (absent the requested measures) that monetary damages would fail to rectify. In some countries, such measures will be granted only if supported by a balancing of the interests of the parties and third parties (often referred to as the ‘balance of convenience’). The public interest or public policy may also be relevant. An important practical point is that some of these conditions may be applied according to a sliding scale: e.g., if the demonstration of a prima facie case is particularly strong, the requirement of irreparable harm may liberally construed.

Some competition authorities and at least one legislature (the German Parliament in the 10th amendment of the GWB, January 2021) have respectively embraced, and lowered the threshold requirements for, interim measures as a rapid response tool for the digital sector, where empire-building commercial strategies by incumbents can outpace conventional instruments of enforcement. The need for such a tool may be mitigated, but not eliminated, by a shift toward more ex ante regulation of so-called ‘gatekeepers’ in this sector. In the gaps that such regulation leaves unaddressed, the extent to which Courts will embrace a greater use of interim measures to meet the digital challenge remains to be seen.

Commentary

Interim measures may be requested in the context of public as well as private enforcement. Taking the EU as an example of the former, the Commission may impose interim measures on an undertaking, or an undertaking may seek to suspend operation of a Commission decision by applying to the (President of) the General Court. In most jurisdictions, interim measures may also be requested in the context of private disputes, whether in B-2-B or consumer litigation. Due to space constraints the emphasis here will be on public enforcement.

Use or non-use of interim measures may create error costs. Such measures are potent and should generally be granted only on an exceptional basis. Where they are imposed by or requested by a competition authority, an inappropriately low standard of proof could cause serious disruption of business operations based on a relatively cursory investigation. However, the arguments supporting an increased use of interim measures as a rapid response tool are strong.

European Union

The ECJ ruled in 1980 that the Commission had the implied power to adopt interim measures, and Regulation 1/2003 made that power explicit. Article 8 provides that in cases of ‘urgency’ due to the risk of ‘serious and irreparable damage to competition’, and on the basis of a prima facie finding of infringement, the Commission may order interim measures. The Commission’s assessment of ‘urgency’ must take into account the effects of the alleged conduct and of the interim measures on the undertakings concerned as well as third parties such as consumers. Interim measures can be adopted only where there is danger of harm to competition, not to particular competitors. The case law requires that such measures must comply with proportionality, the same standard that applies to remedies in Article 7 infringement cases. Before being subject to interim measures, the undertaking concerned must have an opportunity to contest the Commission’s objections in writing and in an oral hearing if it so requests.

Interim measures have become a ‘hot topic’ in the EU. Unlike some national authorities (notably the Autorité de la concurrence in France–where the legal standards are more permissive), the Commission had let its interim measures power ‘fade into oblivion’ since 2001, mainly due to: (i) the restrictive wording of Article 8 of Regulation 1/2003, (ii) the exacting standards of the EU Courts, (iii) the frequent use of the Article 9 commitment procedure, and possibly (iv) the risk of type I errors. However, the Commission in 2019 adopted interim measures under Regulation 1 for the first time, and this could conceivably lead to more frequent use of the instrument, in particular where there is a danger of market tipping.

Motivated by a desire for more discretion in adopting interim measures, the Commission—in a Declaration accompanying EU Directive 2019/1—states: ‘With a view to enabling competition authorities to deal more effectively with developments in fast-moving markets, the Commission commits that it will undertake an analysis of whether there are means to simplify the adoption of interim measures within the European Competition Network within two years from the date of transposition of this Directive [i.e. within two years of 4 February 2021]. The results of this will be presented to the European Parliament and the Council.’

United States

The preliminary injunction requirements are established in 15 USC § 26 (private injunctions) and 15 USC § 25 (public injunctions). The former, § 26, is more restrictive in that it refers to ‘threatened loss or damage’ and imposes a causation requirement. The detailed application of the rules on injunctions varies from Circuit to Circuit. However, U.S. Courts generally consider: (i) the applicant’s likelihood of success on the merits; (ii) the likelihood that the applicant will suffer irreparable harm if an injunction is denied; (iii) the balancing of hardships or ‘equities’ resulting from the grant/denial of a request; and, where appropriate, (iv) the effect of the grant/denial on the public interest. Where the applicant is a private party, a Court may choose—based on principles of equity such as ‘unclean hands’—to reject the request for preliminary relief. Where the plaintiff is the Government, and where a reasonable likelihood of success on the merits is established, Courts assume that the risk of irreparable harm is likewise established. If granted, a preliminary injunction may be of indefinite duration and it is immediately appealable. While U.S. Courts do not typically speak of ‘proportionality’, there are functionally equivalent principles, and if a proposed remedy has no reasonable relationship with an alleged antitrust infringement, it will be denied.

The party opposing the motion for a preliminary injunction must be given a fair opportunity to be heard. However, exigent and specific facts can justify a temporary restraining order (TRO), a short-term and generally unappealable measure that a court may adopt in ex parte proceedings (Rule 65(b) FRCP). Such exigency may arise in particular where the DOJ or FTC seeks to stop a merger.

Challenging a merger under Section 7 of the Clayton Act is indeed the main (albeit not the only) scenario where the federal agencies may request a preliminary injunction or TRO. Where the DOJ handles the case, it will simultaneously seek from the Court both a permanent injunction and a preliminary injunction/TRO. When the Court balances the equities (criterion iii above), it will attach more weight to the Government’s interest than it will to the private interests of the parties to the proposed merger. Compared to the procedure governing DOJ actions, the procedure that applies to the FTC has special features. Section 13(b) of the FTC Act authorizes the FTC to file suit seeking a preliminary injunction/TRO when it has cause to believe that an entity ‘is violating, or is about to violate’ any provision of law enforced by the FTC. Unlike the DOJ, the FTC does not seek a permanent injunction from the District Court. Instead, if the Court grants the temporary relief, the FTC then files an administrative complaint and the merits are adjudicated in-house in an administrative procedure under Part 3 of the FTC’s Rules of Practice. The FTC thus becomes the first-instance decision maker. With regard to the FTC’s request for temporary relief, the Courts interpret the legislative intent of the FTC Act as supporting broad access to injunctive relief—a deviation from the more demanding traditional principles of equity. This idiosyncratic feature was criticized by the Antitrust Modernization Commission in 2007, as the DOJ does not benefit from quite the same generous treatment, leading to at least the perception of uneven enforcement.

Case references

European Union:

Case 792/79 R Camera Care v Commission, EU:C:1980:18

Case T-184/01 R IMS Health Inc. v Commission, EU:T:2001:259

Commission Decision of 16 October 2019, Case AT.40608 – Broadcom

United States:

FTC v. H.N. Singer, Inc., 668 F.2d 1107 (9th Cir. 1982)

American Hospital Supply Co. v. Hospital Products Ltd., 780 F.2d 589 (7th Cir. 1986)

FTC v Whole Foods Market, 548 F.3d 1028 (D.C. Cir. 2008)

Bibliography

Andrew Muscato, ‘The Preliminary Injunction in Business Litigation’ (2007) 3 New York University Journal of Law & Business 649-674

Alexandre Ruiz Feases, ‘Sharpening the European Commission’s tools: interim measures’ (2020) 16 European Competition Journal 404-430

Juliette Caminade, Antoine Chapsal & Jacob Penglase, ‘Interim Measures in Antitrust Investigations: An Economic Discussion’ (2021) 17 Journal of Competition Law and Economics 437-457

Morton Denlow, ‘The Motion for a Preliminary Injunction: Time for a Uniform Federal Standard’ (2003) 22 Review of Litigation 495-539

European Competition Network, Recommendation on the power to adopt interim measures

European Union, Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the competition authorities of the Member States to be more effective enforcers and to ensure the proper functioning of the internal market, [2019] OJ L 11/3, recital 38 and Article 11

Gábor Gál & Konstantina Strouvali, ‘Interim Measures’, in Ekaterina Rousseva (ed.), EU Antitrust Procedure (Oxford: Oxford University Press, 2020) 289-304

Laurence Idot, ‘Urgence et concurrences : Mesures provisoires, référés-suspension … Toujours trop tard ?’, Concurrences No 3-2018, 17-19

Despoina Mantzari, ‘Interim Measures in EU Competition Cases: Origins, Evolution, and Implications for Digital Markets’ (2020) 11 Journal of European Competition Law & Practice 487-498

Institution Definition

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 that anti-competitive behaviour leads to irreversible damage before being sanctioned. 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, i.e. a risk of serious and irreparable harm to the applicant. For instance, a company whose existence is threatened by a potentially anti-competitive conduct of another company may request the Commission to investigate the matter under competition law, and in addition ask the Commission to prohibit the conduct in question until the investigation is terminated by a formal decision. 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 a concentration is actually clearable. 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 by the enforcement of a Commission decision the legality of which is challenged by that same company in a main action. European Commission

On this topic see the e-Competitions special issue "Interim Measures: An overview of EU and national case law"

Case Comments

Brazilian Competition Authority The Brazilian Competition Authority orders an association of private hospitals to cease price fixing with health insurance companies (Brazilian Association of High Complexity Private Hospitals of the State of Goiás)

CADE ordered the Ahpaceg to refrain from engaging in price-rigging with health insurance companies* CADE issued an interim measure to investigate Ahpaceg and its members for price-rigging with health insurance companies On September 12, the Office of the Superintendent General of CADE (...)

Adela Boitoș Gun jumping in mergers: An overview of EU and national case law

The duties of merging firms to notify their concentrations and refrain from implementing their transactions until they receive the necessary clearance have been subject to increased survey by competition authorities around the world in the past year. At the EU level, the Commission’s recent practice shows an intention to use more of the instruments at its disposal to sanction companies and deter them from jumping the gun, for example by, when appropriate, making use of the maximum permitted fine or fining the target company in addition to the acquirer. At the national level, the same dynamics are at play, with record fines, first decisions sanctioning the breach of both the notification and the standstill obligation, and a desire to educate actors on how to avoid gun-jumping when planning a merger. Outside the EU, competition authorities around the world signal their intention to intensify their gun jumping enforcement, either by increasing their fining capacity, adopting gun jumping decisions for the first time or imposing record-breaking fines.

Anne Wachsmann, Nicolas Zacharie Incompetence: The French Competition Authority declares that it has no jurisdiction over practices that have not been shown to be detachable from the exercise of a public service remit (E-Pango / RTE)

In decision no. 22-D-07 of September 7, 2023, the French Competition Authority [hereinafter "the Authority"] declared itself not competent to assess whether practices linked to RTE ’s refusal to renew E-Pango [hereinafter "E-Pango"] ’s status as "Balance Responsible Entity", which was a legal (...)

Argentine Competition Authority The Argentinian Court of Appeal confirms the extension of the interim measures imposed on a messaging app pending the conclusion of the Competition Authority’s investigation over alleged unilateral practices (WhatsApp)

The Court of Appeals confirmed the extension of the precautionary measure in the “WhatsApp” case until the end of the investigation* The Federal Civil and Commercial Appeals Chamber confirmed the temporary extension of the advance protection measure recommended by the National Commission for (...)

Australian Competition Authority The Australian Competition Authority grants an interim authorisation for the members of a banking association to collaborate on the development of industry standards to combat scams (Australian Banking Association)

Australian banks allowed to collaborate on development of industry standards to combat scams* The Australian Banking Association Ltd (ABA) and its member banks will be able to participate in discussions to develop an industry standard to prevent, detect, and disrupt scams affecting (...)

Turkish Competition Authority The Turkish Competition Authority issues a statement regarding the continuation of the interim measures imposed on a broadcasting services provider (Krea İçerik Hizmetleri)

Statement about the Interim Measure Imposed on Krea İçerik Hizmetleri ve Prodüksiyon AŞ According to Article 9 of the Act no 4054 on the Protection of Competition.* In the Competition Board Meeting on 03.08.2023, the following final decision numbered 23-36/675-230 on implementing an interim (...)

Brazilian Competition Authority The Brazilian Competition Authority signs a cease and desist agreement with a state dental council following an investigation into the council’s prohibition of dental clinics from accepting discount cards for their services (State of Minas Gerais Dental Council)

Dental council from Minas Gerais signs agreement with CADE* The association allegedly prohibited dental clinics from accepting discount cards for their services This Wednesday (2 August 2023), the Tribunal of CADE signed a cease and desist agreement with the dental council of the state of (...)

Jean Meijer, Nick Altini, Leana Engelbrecht, Sandhya Foster, Sergio Sorinas, Marie Louvet The South African Competition Appeal Court sets aside the Competition Tribunal’s interim relief order delivered in relation to a case of alleged anticompetitive practices of 3 banks (Sekunjalo Group / Standard Bank / Mercantile Bank / Access Bank)

On 17 July 2023, the Competition Appeal Court (CAC) handed down its judgment in which it granted the relief sought by Standard Bank of South Africa Limited (Standard Bank), Mercantile Bank, a division of Capitec Bank (Mercantile Bank) and Access Bank Limited (Access Bank) (collectively, the (...)

Christophe Lemaire, Joséphine Pralain Conservatory measures: The Paris Court of Appeal upholds a decision by the Polynesian Competition Authority to impose conservatory measures but partially reforms one of its injunctions (Viti / Onati)

In a ruling dated July 6, 2023, the Paris Court of Appeal upheld a decision by the Polynesian Competition Authority to impose interim measures in the telephony sector, but partially reformed one of its injunctions. Reminder of the recourse framework On November 29, 2021, Viti, a Polynesian (...)

Peter L’Ecluse, Valérie Lefever The Brussels Markets Court of Appeal declares an appeal in a case involving the national football association moot following a Supreme Court judgment (Virton / RBFA)

On 28 June 2023, the Markets Court of the Brussels Court of Appeal (Marktenhof / Cour des marchés – the Markets Court) declared an appeal against a decision of the Competition College (Mededingingscollege / Collège de la Concurrence) of the Belgian Competition Authority (Belgische (...)

Alain Ronzano Belgium: The Belgian Competition Authority issues provisional measures aimed at ensuring the continuity of the activities of a Belgian Internet service provider and its operational and commercial independence from a Belgian mobile telecommunications operator, following an abuse of dominant position demonstrated by the Auditor General (Edpnet / Proximus)

On April 20, 2023, the Belgian Competition Authority (ABC) indicated that, in the context of the investigation opened on March 22, 2023 into a possible abuse of a dominant position by Proximus as a result of its acquisition of EDPnet, a transaction below the thresholds and the first (...)

Catherine Longeval, Michael Clancy, Peter L’Ecluse, Koen T’Syen The Belgian Competition Authority applies the abuse of dominance provisions to a non-notifiable takeover by a telecommunications operator and issues interim measures (Proximus / EDPnet)

The Belgian Competition Authority (BCA) continued its quixotic quest to stop telecommunications operator Proximus from acquiring the assets of near-bankrupt broadband communications service provider EDPnet. Its competition college issued a standstill and hold-separate order requiring Proximus (...)

European Court of Justice The EU General Court dismisses an action brought by a BigTech firm against a Commission decision seeking the disclosure of documents identified by means of search terms on the grounds that the decision is consistent with the principle of proportionality (Meta)

Competition: The action brought by Meta Platforms Ireland (Facebook group) against a Commission request seeking disclosure of documents identified by means of search terms is dismissed* The General Court finds that Meta Platforms Ireland has not successfully demonstrated that the request to (...)

Articles

Phillip Landolt Modernised EC Competition Law in International Arbitration

This section selects books on themes related to competition laws and economics. This compilation does not attempt to be exhaustive but rather a survey of themes important in the area. The survey usually covers publication over the last three months after publication of the latest issue of (...)

Andreas Heinemann Competition law in need for speed

The increasing complexity of competition law has considerably protracted procedures, seriously jeopardizing the goals of competition policy. The shortcomings are particularly pernicious in the digital economy but are not limited to a specific economic sector. The time has come to tackle the (...)

Laurence Idot, Guillaume Daieff, Isabelle De Silva, Linda Arcelin, Odile Mathilde Boudou, Jean-Louis Fourgoux, Yann Utzschneider, Anouk Clamens, Christophe Lemaire DDADUE bill: Simple adaptation or reform of French competition law?

This set of articles is dedicated to the changes made to the French competition law by the DDADUE bill of December 3, 2020. Both the law on restrictive competition practices and the law on anti-competitive practices are affected by the necessary transposition of EU directives (directives (...)

Enrico Camilleri, Fayrouze Masmi-Dazi Temporal application of the rules for transposing the “damages” directive (3rd Private Enforcement Conference: The current state of private enforcement in the EU and France - Paris Court of Appeal, March 28th, 2019)

Damages claims for anticompetitive conduct after the Directive 2014/104/EU: Is it (still) worth talking about a private law remedy? Enrico Camilleri Professor, University of Palermo Directive 2014/2014/EU puts the private law remedy of non-contractual liability as the pivot of the entire (...)

Adrien Giraud, Guillaume Blanc Interim measures in France: A really enviable model?

The Commissioner for Competition, Margrethe Vestager, considers tougher enforcement with respect to interim measures and eyes the French regime with interest. It is now established that the French Competition Authority enjoys wide powers to adopt decisions ordering interim measures. This study (...)

Jacques Steenbergen For effective and fair precautionary measures

Efficient and equitable interim relief procedures are in the interest of the authorities as well as of their stakeholders. Their efficiency depends in the first place on the balancing of the prima facie test in order to protect both the victims of infringements in case an infringement is (...)

Jean-Yves Art Interim relief in EU competition law: A matter of relevance

Infringement or commitment decision are regularly used by EU jurisdictions to remedy a competition infringement. However, interim measures could sometimes offer a better solution. The Google case is a good example where the possibility of ordering interim measures to remedy the presumptively (...)

Nigel Parr, Steven Vaz United Kingdom: Overview of the new competition regime

This article outlines the key changes made to the UK competition regime following the enactment of the Enterprise and Regulatory Reform Act 2013, which provided for the merger of the Office of Fair Trading and Competition Commission to form the new Competition and Markets Authority. The (...)

Events

Virginie Beaumeunier, Alvaro Ramos, Olivier Guersent, Antoni Vassileff, Laurence Idot, Michael Grenfell 11th New Frontiers of Antitrust Conference #2 Improving the effectiveness and the agility of competition law enforcement

2nd Webinar of the « 11th New Frontiers of Antitrust Conference » organised by Concurrences, in partnership with Advolis Orfis and Qualcomm, with Virginie Beaumeunier (Director General, DGCCRF), Olivier Guersent (Director General, DG COMP - European Commission), Michael Grenfell (Executive Director - Enforcement, UK Competition and Markets Authority), Laurence Idot (Emeritus Professor, University Paris II Panthéon-Assas | President, Concurrences Review Scientific Committee), Alvaro Ramos (Vice President - Head of Global Antitrust, Qualcomm) and Antoni Vassileff (Partner, Advolis Orfis).

Alan Ryan, Alvaro Ramos, Andreas Mundt, Anneleen Straetemans, Antoine Chapsal, Antoine Winckler, Carles Esteva Mosso, Cristina Caffarra, David Snyder, Delphine Gény-Stephann, Florian Schaefer, Frederic Jenny, Guillaume Loriot, Isabelle De Silva, Jacques Steenbergen, Jacques-Philippe Gunther, Jorge Padilla, Laurence Idot, Mark Powell, Morten Toft, Walid Chaiehloudj, Wouter Wils New frontiers of Antitrust 2018

Annual Concurrences Paris conference organised at the Ministry for the Economy and Finance with the support of Analysis Group, Cleary Gottlieb, Compass Lexecon, Freshfields, Latham & Watkins, Qualcomm, White & Case (Panel Sponsors), Clifford Chance, Dechert, Deloitte, EE&MC, Gide, Willkie Farr & Gallagher (Social Event Sponsors), and MLex, PaRR (Media Sponsors).

Books

Assimakis Komninos, Jacquelyn MacLennan Ian Forrester - A Scot Without Borders Liber Amicorum Vol. I Interim orders against healthcare professionals in disciplinary proceedings (in the United Kingdom)

207 Ian S. Forrester | A Scot without Borders - Liber Amicorum - Volume I Part III Human Rights Intellectual Property Other 209 Ian S. Forrester | A Scot without Borders - Liber Amicorum - Volume I Interim orders against healthcare professionals in disciplinary proceedings (in the United (...)
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