ECN recommendation on interim measures

The European Competition Network recently published, alongside 7 other recommendations on the different aspects of the enforcement of European competition law, a recommendation on the power to adopt interim measures.

Interim measures can be an important tool for competition authorities. In the first place because it can prevent, while an investigation is on-going, that irreparable damage is caused to the competitive process. Secondly it can avoid that the power to take decisions at the conclusion of competition enforcement proceedings becomes ineffectual.

In general, most jurisdictions, as is the case in Belgium, already provide for an explicit legal basis which permits the national competition authority to adopt interim measures. To ensure the effectiveness of the interim measure tool it is desirable that all ECN jurisdictions provide for an explicit legal basis and moreover ensure that all Authorities are able to adopt interim measures where the following cumulative requirements are met:

due to the risk of serious and irreparable harm to competition
there are grounds to suspect that an infringement has occurred.

These are just minimal requirements. This does not exclude the use of wider criteria for the grant of interim measures. Hence this recommendation goes without prejudice to the legal frameworks of those ECN jurisdictions which already provide interim measures which go beyond the scope of the present recommendation.

It should be emphasised that interim measures, by their nature, are temporary and protective. Therefore they must be restricted to what is necessary in the circumstances of the case. It is important that the duration of the interim measures is effective and efficient to avoid any serious and irreparable harm, but they should only be valid until the conclusion of the proceedings or the adaptation of the decision of the merits of the case by an Authority or until a higher instance annuls the decision. This means that insofar it is appropriate the interim measures can always be renewed.

To provide in an effective tool it is necessary that the enforcement systems are sufficiently flexible and that there are effective sanctions in addition to efficient means to compel compliance with decisions ordering interim measures. In 2013 the Belgium Competition Council published two decisions concerning interim measures and with the implementation of the Belgian Act of April 3th concerning the inclusion of Book IV "Protection of Competition" and Book V "Competition and market prices" in the Code of Economic Law, it is expected that more decisions will follow.