The legal framework allowing the European Commission to take interim measures to protect competition pending a decision is too restrictive to be used regularly.
In an interview with the Financial Times dated Monday 3 July, Margrethe Vestager, the Commissioner for Competition, revealed that the European Commission was only able to take a handful of protective measures to safeguard competition in the European Union. The Commission’s words should be taken in the context of the many years of investigations that the institution took to conclude the existence of the abuse of dominant position that earned Google a fine of more than €2 billion on Tuesday 27 June (see EUROPE 11817).
In this context, interim measures should be taken to mean that measures are set in place to end a fundamentally anti-competitive business practice before the Commission’s final decision is taken on whether to sanction the practice. Looking at the example of Google, if the Commission had implemented interim measures, it could have ordered the company to suspend the practices that led to the fine.
The only option currently open to the institution can be found in Regulation 1/2003 on the implementation of the competition rules provided for in articles 101 and 102 of the Treaty on the Functioning of the European Union (TFEU). More specifically, article 8 of this regulation governs this type of specific measure.
For instance, two conditions must be met for an interim measure to be taken. Firstly, there must be a prima facie finding of an infringement, which must be likely (rather than certain) with regard to the case-law of the General Court of the EU. The institution must then raise an emergency case on the grounds that there could be serious and irreparable harm to competition, which the Commission would be unable to remedy after its final decision was announced.
This emergency condition means that the article is very hard to justify if it is challenged before the General Court. As the Commission is acting ex officio, the plaintiff company is not involved in the procedure and the decision to take interim measures is therefore relatively rare.
Conversely, as Vestager stated in her interview, the national competition authorities use similar instruments much more frequently, like the French competition authority, to which a complaint may be brought by any other company whose request is considered eligible. As this is more relaxed than the prerequisite of a prima facie finding of an infringement referred to in article 8 of Regulation 1/2003, it is easier to take additional steps to protect competition on the French market. Allowing the Commission to make interim measure decisions more routinely would therefore require Regulation 1/2003 to be revised. (Original version in French by Lucas Tripoteau)