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Interim Measures for Competition Law Concerns: Recent EU Case and the Irish Perspective
On 26 June 2019, the EU Commission opened a formal investigation to determine whether US chip-making company, Broadcom, is abusing its alleged dominant position in breach of EU competition law and, simultaneously, notified Broadcom of its intention to impose an interim order to cease its allegedly unlawful conduct prior to the conclusion of the investigation. This was the first time in nearly twenty years that the Commission has pursued interim measures.
The granting of interim relief for competition breaches is equally unusual at Irish level. We are aware of the Irish High court having granted interim relief for anti-competitive behaviour in only one case previously, which was nearly 20 years and an unreported judgment. In Leanort Ltd, Hytherm (Ireland) Ltd and Hytherm Ltd v Southern Chemicals Ltd, Aircell Ltd (Irish Journal for EU law, 1992, 1(1), 143-151), the court granted an interim injunction restraining the defendants from selling or offering for sale expanded polystyrene panels in the State or Northern Ireland at unreasonably low prices until the trial of the Action or until a further order was made.
Interim orders in respect of conduct raising competition law concerns may be granted in Ireland under section 14 of the Competition Act 2002, (“the 2002 Act”). This section states that both ‘the Authority’ (ie the Competition and Consumer Protection Commission (“CCPC”)) and ‘any person’ who suffers as a consequence of an anti-competitive offence under the 2002 Act may seek interim orders from the Irish courts during the course of litigation. In particular, sections 14(1) and 14A(1) give jurisdiction to the Irish courts to grant interim injunctions, interlocutory injunctions and injunctions for definite or indefinite duration. In order to obtain interim orders from an Irish court, it is generally necessary to demonstrate that the following conditions of the ‘Campus Oil Test’ for injunctive relief is met:
(1) there is a stateable case on the substantive issue in dispute;
(2) damages would not be an adequate remedy; and
(3) the “balance of convenience” is in favour of granting the injunction.
It will be interesting to see whether the investigation of Broadcom may reignite the use of interim measures in competition law actions at EU and Irish level in the years to come, noting that interim measures may be sought for merger control as well as behavioural competition law conduct, including for example where the CCPC becomes aware that a merger is about to be consummated without first being approved by it.