On 15 January 2025, the European Commission (Commission) announced that it is seeking interim measures in its investigation into potential competition restrictions on transatlantic routes to and from several airports within the European Economic Area (EEA). This marks the second time in over two decades that the Commission seeks to use its interim measure powers.

The Commission’s rare use of interim measures contrasts sharply with the practice of national competition authorities, as last year’s report on this topic shows (Commission Report – see here). The Report resulted from the Commission’s commitment, as part of the ECN+ Directive (2019/1), to analyse ways to simplify the adoption of interim measures within the European Competition Network (ECN), aiming to enable competition authorities to address developments in fast-moving markets more effectively. 

According to the Commission Report, the French and Belgian competition authorities have been the most active in adopting interim measures, with 20 and 18 decisions respectively between 1 May 2004 and 1 June 2024.[1] In these jurisdictions, interim measures are subject to less stringent procedural and substantive legal requirements than proceedings on the merits, making them an attractive tool.[2]

This article discusses the Commission’s limited use of interim measures and sets out the practices of the French and Belgian competition authorities, outlining the associated risks and opportunities for companies.

EU-level

Procedure and Conditions

Article 8 of Regulation 1/2003 empowers the Commission to adopt interim measures in cases of urgency due to the risk of serious and irreparable damage to competition.[3] These measures are based on a prima facie finding of an infringement and apply only for a specified time, pending the outcome of the investigation on the merits.[4]

Unlike in many national jurisdictions, private parties cannot seize the Commission to request interim measures; it can only impose such measures on its own initiative (ex officio). 

Broadcom – Interim measures, but only after a thorough investigation

The Commission used its powers for the first time since the entry into force of Regulation 1/2003 in 2019, when it imposed interim measures on Broadcom, a global market leader for chipsets for TV set-top boxes and modems.

Although interim measures are intended to allow authorities to act in urgent situations, it took the Commission a full year before deciding it had gathered sufficient evidence of a prima facie infringement that would lead to serious and irreparable harm for competitors, without the imposition of interim measures.

According to the Commission, Broadcom was at first sight engaged in abusive behaviour by imposing (quasi-) exclusivity purchasing obligations coupled with exclusivity rebates in several supply contracts. Since many tenders were due to be launched by broadcasting and telecoms providers in the coming years, irreparable damage was deemed very likely. The Commission therefore ordered Broadcom to: (i) suspend the anticompetitive provisions in its agreements with six customers; and (ii) refrain from including similar provisions in future agreements. The measures were imposed for a period of three years or until a final decision on the merits.

Following the interim measures, Broadcom offered commitments in the investigation on the merits, which the Commission accepted in October 2020. As part of the commitments, Broadcom undertook not to impose any minimum purchase obligations in the EEA during a period of seven years.

Lufthansa – Commitment Negotiations through Interim Measures?

The Commission recently announced that interim measures are warranted to safeguard competition on the airline route between Frankfurt and New York. 

The case dates back to 2013, when the Commission accepted commitments from several airlines to address concerns that a cooperation between them might restrict competition for premium passengers on the Frankfurt-New York route. The commitments included obligations to make slots and feed traffic available to competitors and were in force for ten years.

The commitments caused Lufthansa to conclude several agreements with Condor enabling the latter to access the Frankfurt-New York route and to expand its operations on that route. Following the expiry of the commitments in 2024, Lufthansa terminated those agreements, causing concerns that Condor may no longer be able to continue its operations on the Frankfurt-New York route and be forced to definitively exit. According to the Commission, this would likely lead to further deterioration of competition in the market. To prevent serious and irreparable damage to competition from occurring in the market for the provision of air transport services on the Frankfurt-New York route, the Commission is considering imposing interim measures, including reinstating access to Condor.

The case is still ongoing.

Belgium

In 1991, the predecessor of the Belgian Competition Authority (BCA) was among the first in Europe to gain the explicit power to impose interim measures. Over the years, the mechanism has grown in popularity and the BCA now regularly imposes interim measures.

Procedure and Conditions

The interim measures procedure is initiated by a reasoned request to the President of the BCA.[5] While such requests are generally brought by a market player or stakeholder, interim measures can be requested by the BCA on its own initiative (via the Prosecutor General), as happened recently in the Proximus/EDPnet case (see below), or by the federal Minister of Economy or the minister competent for a certain sector.

When adopting interim measures, the BCA must verify whether the following conditions are fulfilled:

i. There must be a prima facie infringement of competition law, which means that it is not manifestly unreasonable to consider the facts an infringement.^[6] This is a relatively low threshold in practice. The BCA has clarified that both restrictions of competition ‘by object’ and ‘by effect’ can lead to interim measures.[7]

ii. The alleged infringement must risk causing serious and imminent damage that is difficult to repair to the undertakings affected, or there must be an alleged harm to the general economic interest. 

The requirement that damage must be ‘difficult to repair’ means that the damage must be irreparable in practice: mere financial damage or loss of a business opportunity are in principle not considered ‘difficult to repair’. Conversely, damage will be considered ‘difficult to repair’ if the behaviour prevents parties from competing in the market (so-called “foreclosure”), if it leads to a business interruption or if it would cause bankruptcy.[8] 

iii. The prima facie infringement of competition law must be the cause of the damage alleged.

iv. The request must be urgent, meaning that the interim measures must be capable of removing or limiting the harm in a timely manner. Logically, there is no urgency if the damage has already occurred.

v. The authority must balance the interests at stake, which involves verifying whether the damage claimed outweighs the potential harm to the defendant if the investigation on the merits would eventually not lead to the finding of an infringement.^[9] This also requires that the measures are proportional.

The tight procedural framework generally allows for an interim measures decision to be taken within two months following the request. 

Interim measures are typically limited in time to ensure their proportionality and are often coupled with significant periodic penalty payments to ensure compliance. 

A Recent Example: Mitigating the Effects of a Towercast Investigation

As suggested by the Commission Report, the BCA’s track record of interim measures is impressive. The BCA has imposed various interim measures in the sports sector (for example on the Belgian Colombophile Federation – see here) and in the telecom sector. While interim measures are typically adopted for practices like refusals to deal or collective boycotts, the BCA recently applied them in a novel context: the acquisition of EDPnet by Proximus, which fell outside the scope of merger control rules.

Background – Only a few days after the much anticipated judgment of the Court of Justice of the European Union in Towercast, which confirmed that national competition authorities can investigate transactions that fall below merger control thresholds under antitrust rules, the BCA opened an investigation into Proximus’ acquisition of near-bankrupt broadband communications service provider EDPnet under the prohibition of abuse of dominance.[10] Since the acquisition did not trigger a Belgian or EU merger filing, the BCA’s investigation marked the first[11] application of the Towercast case law by a national competition authority.

The BCA’s prompt investigation into the transaction, which was expected to be closed relatively smoothly due to the lack of any filing requirement, led to significant ‘deal uncertainty’ on the Belgian telecom market. In an attempt to remedy the uncertainty created by the investigation, the BCA’s Prosecutor General decided to use, for the first time, his power to request interim measures.[12] These measures aimed to ensure the continuity of EDPnet’s activities while maintaining its operational and commercial independence from Proximus pending the outcome of the investigation on the merits.

Prima facie infringement of competition law – According to the Prosecutor General, Proximus was likely dominant in both the wholesale and retail broadband internet markets. He argued that Proximus appeared to have abused its dominant position since the acquisition of EDPnet allowed Proximus to: (i) safeguard its dominant position on the wholesale market; (ii) eliminate its sole competitor on the wholesale market; (iii) eliminate the most important alternative operator on the retail market; and (iv) impede the entry and development of a fourth mobile operator, Citymesh/DIGI. The BCA’s Competition College was not convinced by every alleged abuse but found the Prosecutor General’s claims sufficient to establish a prima facie infringement.

Harm to the general economic interest – The Competition College found that the prima facie infringement caused harm to the general economic interest as Proximus’ acquisition of its sole competitor on the wholesale market increased customers’ dependence on Proximus and would affect the structure of the downstream market. Additionally, the reduction in competitive pressure on Proximus’ brands, such as Mobile Vikings and Scarlet, could result in higher prices for EDPnet customers.

Urgency – Proximus challenged the urgency by arguing that the alleged injury was self-inflicted by the Prosecutor General, as he only requested interim measures on 12 April 2023 despite being informed of Proximus’ intention to acquire EDPnet in early March 2023. However, the Competition College disagreed and found that the Prosecutor General had acted swiftly by initiating the investigation on the merits the day after the court’s approval of the acquisition and by requesting interim measures three weeks later.

General economic interest outweighs potential harm to Proximus – When balancing the interests at stake, the Competition College held that most of the interim measures requested by the Prosecutor General were already included in Proximus’ acquisition plans. The duration and scope of the interim measures were considered limited to what was necessary to achieve the objective of preventing EDPnet’s integration within Proximus.

Interim measures – Consequently, while emphasising the aim of preventing the ‘irreversibility’ of the acquisition, the Competition College obliged Proximus to:

1. maintain EDPnet's viability, market value and ability to compete;
2. keep its activities and those of EDPnet entirely separate – under the supervision of a hold-separate manager;
3. create a “firewall” to prevent the spillover of EDPnet's confidential information; and
4. appoint an independent monitoring trustee to verify Proximus’ compliance with the interim measures.

The interim measures were imposed for a duration of 15 months or until the decision to terminate the investigation on the merits. As Proximus decided to divest EDPnet to Citymesh a couple of months later, the investigation was closed without a decision on the merits, rendering the interim measures obsolete.

France

In 1986, the French Competition Authority (FCA) became the first competition authority in the EU to be granted the power to impose interim measures at a national level.^[13]

In a press release regarding the imposition of interim measures against Google concerning its online advertising platform, Ads, the FCA stated: “Within the European network of competition authorities, France stands out by the existence of this procedure, which it does not hesitate (like the Belgian authority) to use when it considers that the conditions are met. In ordering interim measures, the Autorité may avoid, during the duration of the investigation, that any practice likely to be anticompetitive will cause serious harm to competition or to the company which is the victim of it. Its effect is thus similar to that of an interim injunction issued by the judge pending the decision on the merits of the case”. [14]

There is no exhaustive list of the types of interim measures the FCA can implement. The FCA has the authority to suspend the practice in question or restore the situation to its state before the reported practices occurred. It can impose any interim measures it considers necessary, even if they are not specifically requested by the applicant. In some instances, decisions are made quite rapidly, typically within three to four months after the case is brought to the FCA.

While interim measures are often requested, they are rarely granted. According to the FCA's 2023 annual report, only 4 out of 53 requests for interim measures were approved between 2016 and 2023.

Procedure and Conditions

According to the French Commercial Code, the interim measures procedure can be initiated at the request of the Minister of the Economy or any concerned market participant. Additionally, since the transposition of the ECN+ Directive, the FCA also has the power to take any interim measures it deems necessary on its own initiative, although it has exercised this power only once so far.[15]

Formal requirements

Requests for interim measures must be made as an accessory to a claim on the merits and submitted in a separate document. If the action on the merits is deemed inadmissible, the FCA will also reject the request for interim measures. Interestingly, many of the above-mentioned decisions refusing to grant interim measures result from the inadmissibility of the claim on the merits. Applications for interim measures can be made at any stage of the procedure and must be submitted in the same manner as a complaint on the merits.

Substantive requirements

Under French law, the standard of proof required for the FCA to adopt interim measures is similar to that in Belgium:

i. The claimant must demonstrate the cumulative existence of (i) serious and (ii) immediate damage to the economy, the sector concerned, consumer interests, or, where appropriate, to itself. 

• Seriousness of the damage: the financial situation of the victim may justify a finding of “serious damage”. However, mere allegations of lost earnings are insufficient. The severity of the damage caused, rather than the practices themselves, is decisive. Even if the claimant is not significantly affected, the FCA can impose interim measures if the practices harm the economy, the sector, or consumers. 

The FCA adopts a more flexible interpretation of serious damage when practices affect a new market entrant, as illustrated by various decisions from the FCA and the Paris Court of Appeal.[16] 

• Immediacy of the damage: interim measures are intended to prevent imminent damage or the continuation of ongoing damage. 

ii. The facts under investigation on the merits must, based on the evidence submitted, appear to constitute an anticompetitive practice. Like the BCA, the FCA does not need to definitively establish or strongly presume such an anticompetitive practice. Interim measures can be ordered if the facts, which will be further examined in proceedings on the merits, seem likely to indicate an anticompetitive practice. The French Supreme Court (Cour de Cassation) held that the FCA does not need to firmly believe in a competition rules infringement to impose interim measures, unlike the required test for the Commission.[17]

iii. A causal link between the facts complained of and the infringement must exist. 

iv. The interim measures sought must be proportionate to the nature of the infringement and strictly limited to what is necessary to remedy the urgency.

Interim Measure Mainly Granted for Potential Abuses of Dominance or Vertical Practices 

In practice, interim measures are primarily granted in cases of unilateral conduct involving abuses of dominance, as claimants are typically aware of these practices and their potential harm. This is confirmed by the Commission Report, which indicates that the prohibition of abuse of a dominant position is the most frequently used legal basis for interim measures decisions by national competition authorities within the ECN.

Unsurprisingly, tech giants have frequently faced interim measures proceedings. There has been a renewed interest in using interim measures within the digital economy, with the FCA imposing them on tech giants twice in less than three years. This trend might result from the use of interim measures as a tool in the FCA’s competition enforcement strategy toward dominant actors in such markets.

A prime example is the interim measures imposed in the Meta / Adloox case. [18] Following a complaint lodged in October 2022 by Adloox regarding practices implemented by Meta in the online ad verification sector, the FCA ordered Meta to create and publish new criteria for viewability and brand safety partnerships that are objective, transparent, non-discriminatory, and proportionate. Additionally, the FCA issued an injunction to expedite Adloox's admission into these partnerships based on the new FRAND criteria. 

This decision highlights the usefulness of interim measures in rapidly evolving sectors with significant network effects, where situations can quickly become irreversible. 

This decision is the latest in which the FCA has taken interim measures.

Key takeaways

Interim measures allow authorities to act decisively and quickly in cases requiring swift intervention. As this presents both opportunities and risks for companies, it is important to keep the following in mind:

1. Alternative (or complementary) to court proceedings – Interim measures procedures before a competition authority provide a viable alternative to or complement summary proceedings before the courts. While the conditions and exact timeframes may differ slightly, parties can expect a timely interim solution. By approaching a competition authority, parties can be sure that the case will be dealt with by competition law experts. However, parties should be aware that they risk losing some control over the case when approaching a competition authority: while a judge loses jurisdiction over a case if the application is withdrawn, a competition authority can typically continue the case ex officio, on its own initiative, even if the complaint is withdrawn.
2. Forewarned is forearmed – Interim measures are gaining popularity and are increasingly used as a means to exert pressure in commercial negotiations between market players. Companies can prepare against such tactics by assessing their compliance with competition law upfront. This includes evaluating cooperation agreements, tender processes and refusals to negotiate on reasonable terms. Documenting these analyses in advance can help modify practices to mitigate risk and counter competition law arguments early on.
3. Focus on fast-moving markets – According to the Commission Report, interim measures are particularly suitable to address competition law issues in dynamic markets. While the Commission Report does not specify examples, companies in the digital, tech or Fast-Moving Consumer Goods industries should be vigilant about interim measures procedures.
4. Speed is crucial – The fast-paced nature of interim measures procedures often leaves very little time to come up with supportive evidence to counter allegations. Prompt availability of key personnel is therefore key to ensure an effective defence. Companies in data-intensive industries should moreover ensure robust and accessible data management systems. This includes having clear protocols for data retrieval and analysis, with up-to-date information readily available. Implementing automated systems can streamline data processing, reducing the time needed to gather essential information during urgent interim measures procedures.

If you need more information or further guidance in this area, please contact Baptist Vleeshouwers and David Wouters in Brussels or Thomas Oster and Matthieu de Calbiac in Paris.

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[1] These numbers are up to date as of February 2025.

[2] There are differences between the procedural requirements of national competition authorities to adopt interim measures. This results from differences in their national enforcement systems, the structure of the national competition authority, and procedural requirements which are not harmonised at EU level. For example, Austria has a judicial enforcement system, meaning that the national administrative competition authority must apply for interim measures to the court that acts as the national judicial competition authority. 

[3] The conditions of Article 8 of Regulation 1/2003 essentially mirror those established by the Court of Justice of the European Union in Camera Care and Ford.

[4] Article 8 (1) and (2) of Regulation 1/2003.

[5]Article IV.72, §1 of the Belgian Code of Economic Law.

[6] While Article IV.71 of the Belgian Code of Economic Law does not mention this condition, it is settled decisional practice and case law and is explicitly mentioned in Article 11 of the ECN+ Directive (2019/1). Infringements of competition law include both restrictions by object and by effect.

[7] BCA, 8 January 2020, No. 20-VM-03, Telenet/Proximus and Orange, paras 49 and 88.

[8] BCA, 28 September 2018, No. 18-VM-33, Lisa Nooren and Henk Nooren Handelsstal, para. 178.

[9] Article IV.73, §2 of the Belgian Code of Economic Law.

[10] Article 102 of the Treaty on the Functioning of the European Union. The BCA acted with unprecedented speed as it announced the initiation of the investigation the day after the judgment of the enterprise court of Ghent, Dendermonde section, of 21 March 2023, which approved the acquisition as part of the judicial reorganisation.

[11] The BCA has in the meantime opened a second Towercast investigation – see Belgian Article.

[12] Article IV.72, §1, first paragraph of the Belgian Code of Economic Law. 

[13] See Commission Report, Section 2 and Article 12 of French Ordinance N°. 86-1243 of December 1, 1986, relating to the freedom of prices and competition.

[14] FCA, Decision 19-MC-01 of 3 January 2019 regarding a request for interim measures from Amadeus

[15] FCA, Decision N°. 22-D-11 of June 7, 2022, concerning a request for interim measures submitted by the investigation services in the sector of service provision for operators of public, judicial, or voluntary auctions of movable property; However, no interim measures were adopted in that case.

[16] For instance, Decision N°. 16-MC-01, May 2, 2016, confirmed by the Paris Court of Appeal, July 28, 2016, N°. 2016/11253.

[17]French Supreme Court, Commercial section, 8 November 2005, 04-16.857.

[18] FCA, Decision No. 23-MC-01 of May 4, 2023, concerning a request for interim measures by Adloox.