COMPETITION • EUROPEAN LAW • PROCEDURE
When the infringement of competition rules is clear, it may, when requested by a third party affected by the behavior, be necessary to paralyze its effects specifically by adopting interim measures in the course of the proceedings at the request of a third party victim. Article 8 of Regulation No 1/2003 provides: “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”. The decision applies for a specified period of time and may be renewed if necessary. The admissibility of an application for interim measures is subject to the fulfillment of two cumulative conditions: a prima facie infringement and serious and irreparable damage. The measures are provisional in that they cannot prejudge the final decision or neutralize in advance its effects.
In order for interim measures to be granted, the practices concerned must prima facie constitute a breach of the competition rules in respect of which a penalty could be imposed by a decision of the Commission. A prima facie infringement must be found, not a “clear and flagrant infringement”. It must be shown that there is particular likelihood of the existence of an infringement. Exceeding, at first sight, the limits allowed by the provisions of EU law, or the existence of serious doubts may establish the likelihood of the prima facie infringement. Such is the case of an undertaking in a dominant position offering prices below its production costs in order to eliminate a competitor, the limitation of a product range in order to maintain price levels or the refusal by an undertaking in a dominant position to grant a license for the use of its copyright.
Furthermore, interim measures can be taken only in cases of proven urgency in order to prevent the occurrence of a situation likely to cause serious and irreparable damage to the party applying for their adoption or intolerable damage to the public interest. The condition relating to urgency is not an autonomous condition but a component of the condition relating to the risk of a serious and irreparable damage. The purpose of interim measures is the preventing of any serious and irreparable damage to the claimant’s interests before any ruling on the main action can be handed down. The damage is irreparable when it cannot be remedied by any decision to be adopted by the Commission upon the conclusion of the administrative procedure. Such is the case when the undertaking might disappear from the market or when the conduct in question leads to a significant competitive disadvantage that might produce a long-lasting effect on the competitor’s position in the market concerned.
Lastly, the measures must be restricted to what is required and must not create any more significant harm than that they are intended to prevent. The Commission cannot, in a decision relating to interim measures, order what it cannot explicitly impose in a final decision. It may only adopt measures limited to returning to the previous situation until a final decision is given. Those measures must not cause the undertaking subject to them a serious and irreparable damage. The scope of the measures must therefore be reduced when they are not proportionate to the objective to be achieved.