Competition authorities to use interim powers in fast moving markets?
Published on 12th Dec 2014
Businesses active in tech, media and comms markets might expect increased use by competition regulators of interim measures in investigations relating to innovative markets.
The idea behind interim measures is that they enable a competition authority to deal quickly, albeit on a temporary basis, with the suspected anti-competitive behaviour whilst the underlying investigation into the parties’ conduct continues. As competition investigations can take several years to run their course, the absence of interim measures would enable potentially anticompetitive conduct to continue to distort competition.
The French competition authority in particular is championing this approach after successfully imposing interim measures in France. In September 2014, the Authority ordered GDF Suez to grant competitors access to certain customer data, which will enable those competitors to identify and publicise more competitive prices. In July 2014, the Authority suspended the French National Rugby League’s agreement granting Pay-TV provider Canal-Plus the exclusive right to air certain matches.
Interim measures in a competition investigation have also been used in the Pay TV sector in the UK, albeit these took the form of an interim remedy while the main remedy was being appealed through the courts.
In practice, interim measures can only be imposed where the regulator has a high degree of confidence that a competition breach has occurred and that the harm is continuing. This is driven by the fact that interim measures can be challenged in the courts, which parties are increasingly willing to do.
For complainants, interim relief may be of particular importance in fast moving markets, where their competitive position may otherwise be harmed by the often lengthy investigation process. For defendants, a trend towards interim measures may raise the strategic question of whether to offer interim undertakings proactively, in the hope of avoiding a more far-reaching remedy.