Commission Seeks Interim Measures For The First Time In 18 Years

On 26 June 2019, the European Commission announced that it has opened a formal investigation to determine whether US chipmaker, Broadcom, is abusing its allegedly dominant position in the markets for modem and TV chipsets through its imposition of exclusivity requirements on customers (amongst other alleged breaches of competition law). In parallel, the Commission issued a Statement of Objections notifying Broadcom of its intention to impose an interim measures order restraining its allegedly exclusionary practices pending conclusion of the investigation.

This is the first time in nearly two decades that such interim measures have been pursued by the Commission. It also comes at a time when the Commission is coming under pressure to ensure competition law enforcement is timely and effective, particularly in respect of fast-moving digital markets.

Part of the challenge has been to determine whether existing enforcement tools are adequate for dealing with the issues arising with digitisation. The fact that the Commission turned here to an existing but much under-used power therefore marks this out as an interesting test case.

European Commission interim measures regime in antitrust cases

Under Article 8(1) of Regulation 1/2003, which codified precedent first set out in the 1980 European Court of Justice Camera Care v European Commission case, the Commission has the power to order interim measures on the basis of a prima facie finding of infringement where there is an urgent need to respond to a risk of serious and irreparable damage to competition. Broadcom marks the first time since the IMS Health case in 2001 (and the first time since the passing of Regulation 1/2003) that the Commission has sought to rely on these powers.

The Commission in IMS Health ordered IMS, which at the time was the leading supplier of pharmaceutical sales data, to license the use of its copyrighted data collection system to its competitors in Germany. IMS appealed to the Court of First Instance (now the General Court), which issued a temporary order suspending the interim measures pending the Commission's final decision. Two competitors of IMS unsuccessfully appealed the Court of First Instance's order to suspend interim measures to the Court of Justice. The Commission eventually withdrew the order in 2003, following from a substantive ruling in favour of IMS Health by a German court.

In its Statement of Objections issued to Broadcom last month, the Commission set...

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