Increasing interim measure use stirs consequences debate

Johan Ysewyn spoke with PaRR about interim measures in antitrust cases in Europe.

Mr. Ysewyn is skeptical of the French measures, saying it appears to be a policy matter that has been “dressed up” in competition law concepts.

He warns that the Belgians swift approach should not be held as an example as there is insufficient time for a “decent debate on whether there is a prima facie infringement.” He adds, “The current threshold is defined as a negative: is it extremely unreasonable for the authority to conclude there is an infringement which creates serious and irreparable harm?” He characterized the authority as being trigger-happy and relatively loose with its standard of proof in this respect, as it grants most of the requests.

He says the general trend of applying interim measures is fed by the legal community and businesses, as authorities use the tool when asked by complainants. The more lawyers and companies hear of successful interim measures, the more prone they may be to seek them when faced with a competition problem.

Mr. Ysewyn adds, “If your request for measures gets rejected you are in a worse position as complainant psychologically in the main case, because you already lost once.”