On 16 October 2019, for the first time in many years, the European Commission granted injunctive relief (known as “interim measures”) against a company that is being investigated for infringing European competition law. This is an important development, because it shows that the Commission is testing whether this long-unused tool is fit for purpose in fast moving, dynamic situations (often in tech markets) where there is a perceived need to act more quickly than has been the case to reduce the risk that the behaviour being investigated will cause irreparable harm.
The interim measures decision against Broadcom may presage not only a rebirth of the imposition of interim measures in European antitrust investigations but also a change of tack to European antitrust enforcement, especially with regard to tech regulation.
The last time the Commission imposed interim measures was 18 years ago in IMS Health (Case COMP D3/38.044 NDC Health/IMS Health). Those measures were overturned by the European Court of Justice as a result of doubts about the Commission’s legal assessment and the fact that there was no risk of serious and irreparable harm to IMS Health (Case T-184/01 R IMS Health Inc. v Commission). The event was sufficiently scarring to the Commission that it was disinclined to consider interim measures in antitrust cases due to the high bar set to impose them, namely only “in cases of urgency due to the risk of serious and irreparable damage to competition,” and only if the Commission is able to demonstrate a “prima facie finding of infringement” (Article 8 of Regulation 1/2003). If the Commission’s Broadcom interim measures decision survives the European Courts, we expect that disinclination to morph into inclination, especially when it comes to regulating tech.
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