REPORT FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT on the legal framework for and the use of interim measures by national competition authorities
Date: 2024-09-05
Institutions: Directorate-General for Competition, European Commission
Subjects: EU Member State, EU competition policy, competition, competition law, national competent authority, restriction on competition, sanction (EU), single market

EN 

  EN 

   EUROPEAN COMMISSION  Brussels, 5.9.2024  COM(2024) 394 final  REPORT FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN PARLIAMENT on the legal framework for and the use of interim measures by national competition authorities  
 
 
REPORT FROM THE COMMISSION TO THE COUNCIL AND THE EUROPEAN 
PARLIAMENT 

on the legal framework for and the use of interim measures by national competition 
authorities 

1. 

INTRODUCTION: BACKGROUND AND SCOPE OF THE REPORT 

EU antitrust rules prohibit agreements and concerted practices between undertakings that restrict 
competition (Article 101 of the Treaty on the Functioning of the European Union (‘TFEU’)) and 
abusive  conduct  by  undertakings  that  hold  a  dominant  position  on  the  market  (Article  102 
TFEU). The  European  Commission  (‘the Commission’)  and the competition  authorities of the 
Member  States  (‘national  competition  authorities’)  are  co-enforcers  of  EU  antitrust  rules 
pursuant  to Articles  4,  5  and  10  of  Council  Regulation  (EC)  No  1/20031. Article  3  of  Council 
Regulation (EC) No 1/2003 requires national competition authorities to apply EU antitrust rules 
when an agreement or abuse may affect trade between Member States. The Commission and the 
national competition authorities cooperate within the European Competition Network (‘ECN’) to 
enforce these antitrust rules. 

Interim measures can be a powerful tool for competition authorities to ensure that competition on 
the market  is  preserved  or restored  while  an  antitrust  investigation is  on-going.  Such measures 
aim  to  prevent  further  damage  to  competition  from  occurring  during  ongoing  proceedings. 
Interim measures could, for instance, order an undertaking to supply a certain product or service 
or to stop a certain behaviour while the antitrust investigation is ongoing.  

The Commission’s power to impose interim measures in antitrust proceedings is provided for in 
Article 8 of Council Regulation (EC) No Regulation 1/2003, which is set out below.  

1.  In  cases  of  urgency  due  to  the  risk  of  serious  and  irreparable  damage  to  competition,  the 
Commission, acting on its own initiative may by decision, on the basis of a prima facie finding of 
infringement, order interim measures.  

2. A Decision under paragraph 1 shall apply for a specified period of time and may be renewed 
in so far as this is necessary and appropriate.  

On  11  December  2018,  the  European  Parliament  and  the  Council  adopted  Directive  (EU) 
2019/12  (‘the  ECN+  Directive’)  to  make  national  competition  authorities  more  effective 
enforcers  of  EU  antitrust  rules,  in  part  by  ensuring  that  they  have:  (i)  basic  guarantees  of 

1  

2  

Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition 
laid down in Articles 81 and 82 of the Treaty, OJ 4.1.2003, L1/1. 
Directive (EU) 2019/1 of the European Parliament and of the Council of 11 December 2018 to empower the 
competition  authorities  of  the  Member  States  to  be  more  effective  enforcers  and  to  ensure  the  proper 
functioning of the internal market, OJ 14.1.2019, L11/3. 

1 

 
 
 
 
 
independence  and  resources;  (ii)  core  investigative,  decision-making  and  fining  powers;  (iii) 
leniency programmes; and (iv) mechanisms for mutual assistance. 

Article  11  of  the  ECN+  Directive  requires  Member  States  to  grant  their  national  competition 
authorities the power to impose interim measures. The wording of the article is set out below. 

1.  Member  States  shall  ensure  that  national  competition  authorities  are  empowered  to  act  on 
their own initiative to order by decision the imposition of interim measures on undertakings and 
associations of undertakings, at least in cases where there is urgency due to the risk of serious 
and irreparable harm to competition, on the basis of a prima facie finding of an infringement of 
Article 101 or Article 102 TFEU. Such a decision shall be proportionate and shall apply either 
for a specified time period, which may be renewed in so far as that is necessary and appropriate, 
or  until  the  final  decision  is  taken.  The  national  competition  authorities  shall  inform  the 
European Competition Network of the imposition of those interim measures. 

2.  Member  States  shall  ensure  that  the  legality,  including  the  proportionality,  of  the  interim 
measures referred to in paragraph 1 can be reviewed in expedited appeal procedures.  

Recital 38 of the ECN+ Directive clarifies that interim measures are an important tool to avoid 
market  developments  that  could  be  very  difficult  to  reverse  by  a  decision  taken  by  a  national 
competition  authority  at  the  end  of  the  proceedings.  It  also  underlines  that  Member  States  are 
free  to  provide  national  competition  authorities  with  more  extensive  powers  to  impose  interim 
measures and that Member States should create the conditions necessary to ensure that national 
competition  authorities  can  make  use  of  interim  measures  in  practice.  Member  States  were 
obliged to transpose the ECN+ Directive by 4 February 2021. 

In  a  declaration  attached  to  the  ECN+  Directive,  the  Commission  committed  to  ‘undertake  an 
analysis  of  whether  there  are  means  to  simplify  the  adoption  of  interim  measures  within  the 
European  Competition  Network’,  this  ‘with  a  view  to  enabling  competition  authorities  to  deal 
more effectively with developments in fast-moving markets’.  

It was initially envisaged to present the results of this analysis in a report to the Council and the 
European Parliament within 2 years from the deadline for transposition of the ECN+ Directive, 
meaning  by  4  February  2023.  However,  in  June  2022,  the  Commission  launched  a  process  to 
evaluate Council Regulation (EC) No 1/2003 and Commission Regulation (EC) 773/2004. The 
report  was  therefore  postponed  so  that  it  could  be  presented  together  with  the  results  of  the 
evaluation  of  the  Commission’s  power  to  adopt  interim  measures  in  antitrust  proceedings  as 
provided in Article 8 of Council Regulation (EC) No 1/2003. Postponing the report also allowed 
for a more comprehensive analysis, as most Member States have in the meantime completed the 
transposition process of the ECN+ Directive3. 

The  present  report  focuses  on  the  legal  framework  for  –  and  use  of  –  interim  measures  by 
national  competition  authorities.  It  is  based  on  a  comparative  assessment  of:  (i)  the  relevant 

3  

All  Member  States,  except  Estonia,  have  in  the meantime  transposed  the  ECN+  Directive.  The  analysis  in 
this  report  covers  Estonia,  but  does  not  yet  reflect  any  possible  legislative  changes  to  the  power  to  adopt 
interim measures following the transposition of the ECN+ Directive. 

2 

 
 
 
 
 
legislative texts of the Member States; (ii) the quantitative data which the national competition 
authorities  have  provided  as  part  of  the  evaluation  process  of  Council  Regulation  (EC)  No 
1/2003 and Commission Regulation (EC) 773/2004 and complemented as part of this analysis; 
and (iii) the qualitative feedback from national competition authorities collected by means of a 
request for information4.  

This report begins by providing an overview of: (i) the introduction dates of the power to impose 
interim measures for infringement of EU antitrust rules in the different Member States; and (ii) 
the  legislative  changes  that  were  brought  to  that  power  by  the  transposition  of  the  ECN+ 
Directive.  The  report  then  presents  the  differences  between  the  legislative  frameworks  of  the 
Member States in  terms  of the substantive  legal  test that must be met before imposing interim 
measures and the procedural requirements for these measures. Finally, it analyses the actual use 
of  this  enforcement  tool  by  national  competition  authorities  and  their  experiences.  The  report 
finishes with some preliminary conclusions. 

2.  THE POWER TO ADOPT INTERIM MEASURES IN THE MEMBER STATES 

All 27 national competition authorities of the ECN have the power to impose interim measures 
for  infringements  of  EU  antitrust  rules  and/or  their  equivalent  provisions  under  national 
competition  law.  This  power  forms  part  of  the  national  competition  authorities’  standard 
antitrust-enforcement toolbox included in their respective national competition laws.  

Overview of the introduction of the power to impose interim measures 

Before the Commission’s power to impose interim measures was codified in Council Regulation 
(EC)  No  1/20035,  11  national  competition  authorities  already  had  this  power:  France  (1986), 
Cyprus (1989), Spain  (1989), Belgium  (1991), Finland (1992), Sweden (1993), Greece  (1995), 
Malta (1995), Hungary (1997), Lithuania (1999) and Austria (2002). 

In addition, 13 national  competition authorities obtained such powers at the same time or after 
the  adoption  of  Council  Regulation  (EC)  No  1/2003:  Croatia  (2003),  Portugal  (2003),  Czechia 
(2004), Latvia (2004), ²Luxembourg (2004), Poland (2004), Germany (2005), Romania (2005), 
Italy (2006), Bulgaria (2008), Slovenia (2008), Denmark (2013) and Estonia (2013). 

As an underlying grounds for the introduction of the power to adopt interim measures, national 
competition  authorities  generally  refer  to  the  need  to  be  able  to  intervene  more  swiftly  and  to 
preserve a situation or restore competition pending an antitrust investigation. For those national 
competition  authorities  that  received  this  power  after  the  adoption  of  Council  Regulation  (EC) 
No  1/2003,  the  desire  to  align  their  enforcement  powers  with  those  of  the  Commission  and/or 
other national competition authorities was an additional motivating factor. 

4  

5  

In mid-November 2023, the Commission sent an informal request for information to all national competition 
authorities  regarding  the  introduction,  legal  basis  and  experience  with  interim  measures  in  their  respective 
Member States. All the national competition authorities submitted a response to this request. 
Council Regulation (EEC) No 17 of 6 February 1962 was the first regulation implementing Articles 85 and 
86 of the Treaty (OJ 21.2.1962, 204). It did not expressly provide for the power to adopt interim measures, 
but this power was  acknowledged by the European Court of Justice (see Order of the  Court of 17 January 
1980, Camera Care Ltd v Commission, Case 792/79 R, EU:C:1980:18, at para. 18). 

3 

 
 
 
Two  Member  States  introduced  the  power  to  adopt  interim  measures  recently,  as  part  of  the 
transposition  process  of  the  ECN+  Directive:  the  Netherlands  (2021)  and  Ireland  (20226).  In 
Slovakia, the national competition authority was already able to rely on a more general power to 
impose  interim  measures  based  on  its  national  administrative  code,  but  it  was  only  with  the 
transposition  of  the  ECN+  Directive  (in  2021)  that  the  power  to  adopt  interim  measures  was 
introduced to Slovakia’s national competition law. 

Legislative changes introduced following the ECN+ Directive 

Although  most  national  competition  authorities  already  had  the  power  to  impose  interim 
measures  before  the  ECN+  Directive,  the  transposition  of  the  Directive  required  certain 
legislative changes. The transposition process was also used by some Member States to introduce 
changes  that  went  beyond  the  requirements  of  the  ECN+  Directive.  Most  of  the  legislative 
changes make it easier for national competition authorities to adopt interim measures following 
the transposition of the ECN+ Directive in their Member States.  

As  part  of  their  transposition  of  the  ECN+  Directive,  France  and  Luxembourg  introduced  the 
possibility for the national competition authority to adopt interim measures on its own initiative 
(ex officio), as required by the Directive. As a result of Lithuania’s transposition, the Lithuanian 
competition authority no longer needs a court’s permission to impose interim measures. As part 
of  its  transposition,  Germany  introduced  a  less  stringent  legal  test  for  interim  measures,  no 
longer  requiring  proof  of  ‘irreparable  harm’  to  competition.  Similarly,  Bulgaria  no  longer 
requires ‘sufficient evidence’ of an infringement, prima facie evidence being sufficient according 
to the Directive. The Swedish national competition authority now has the possibility to impose 
structural remedies as interim measures7. In its transposition, Italy introduced the power to renew 
or  extend  the  duration  of  interim  measures,  which  was  not  formally  possible  before.  Portugal 
introduced a specific reference to the requirement of a prima facie finding of an infringement of 
EU antitrust rules as a basis for imposing interim measures, and no longer requires the national 
competition authority to adopt a decision in the main proceedings within 180 days following the 
imposition  of  interim  measures.  And  Finland  increased  the  time  period  during  which  interim 
measures can be imposed to up to 12 months (and the decision can be renewed)8. 

For  Finland,  Luxembourg  and  Slovakia,  the  alignment  with  the  substantive  legal  test  of  the 
ECN+ Directive resulted in a higher threshold for the  national  competition authorities to adopt 
interim measures than the substantive legal test applied before. In Poland, the requirement of the 
ECN+ Directive to adopt a statement of objections (‘SO’) before taking an infringement decision 

6  

7 

8  

The act that introduced this new power for the Irish competition  authority was adopted in 2022 and entered 
into force in 2023. 
This is an indirect consequence  of the transposition of the ECN+ Directive. In Sweden, the power to adopt 
interim measures is linked to the power to impose remedies. In accordance with Article 10(1) of the ECN+ 
Directive, national competition authorities should be able to impose ‘any behavioural or structural remedies’. 
The  Swedish competition authority’s power to impose remedies has been extended to also cover structural 
remedies, which has thus also extended its power to impose interim measures. 
Before the transposition of the ECN+ Directive in Finland, interim measures imposed by the Finnish NCA 
would only remain valid for a period of 90 days.  

4 

 
 
 
has  introduced  an  additional  procedural  step  for  the  adoption  of  interim  measures9.  In  its 
transposition,  Greece  abolished  the  possibility  for  the  Minister  of  Development  to  request 
interim  measures  and  introduced  a  12-month  deadline  to  adopt  the  decision  in  the  main 
proceedings  following  the  imposition  of  interim  measures  (extendable  once  by  a  further  12 
months). 

Finally,  other  legislative  changes  in  the  Member  States:  (i)  brought  clarifications  on  both  the 
requirement to observe the proportionality principle and the need for expedited appeals under the 
Directive;  and  (ii)  introduced  the  obligation  to  notify  the  ECN  of  the  adoption  of  interim 
measures. 

3.  LEGAL TEST AND PROCEDURE: MORE HARMONISATION BUT DIFFERENCES REMAIN 

The ECN+ Directive has to some extent harmonised the national competition authorities’ power 
to impose interim measures. Article 11 of the ECN+ Directive requires Member States to grant 
their national competition authorities the power to adopt interim measures at their own initiative 
(ex  officio).  As  a  minimum,  Article  11  states  that  this  power  should  apply  in  cases  where  a 
national competition authority has made ‘a prima facie finding of an infringement of EU antitrust 
rules’  and  where  there  is  ‘a  risk  of  serious  and  irreparable  harm  to  competition’. This  being  a 
minimum  harmonisation  requirement,  Member  States  can  opt  for  a  less  stringent  substantive 
legal  test.  The  Directive  also  prescribes  that  any  interim  measures  must:  (i)  uphold  the 
proportionality principle; (ii) be of a temporary character; and (iii) be capable of being reviewed 
in expedited appeal proceedings. It also requires all national competition authorities to notify the 
adoption of interim measures to the ECN.  

The power to initiate the adoption of interim measures 

All  national  competition  authorities  now  have  the  power  to  impose  or  initiate  the  adoption  of 
interim  measures  at  their  own  initiative  (ex  officio).  Before  the  transposition  of  the  ECN+ 
Directive, the national competition authorities of France and Luxembourg only had the power to 
adopt  interim  measures  upon the request  of a party. While no  national  competition  authority is 
any  longer  dependent  on  the  request  of  a  party  to  adopt  interim  measures,  11  national 
competition  authorities  also  provide  for  an  explicit  power  to  adopt  interim  measures  at  the 
request  of  parties  (Austria,  Belgium,  Bulgaria,  Cyprus,  Czechia,  France,  Italy,  Luxembourg, 
Portugal,  Romania,  and  Spain).  However,  other  national  competition  authorities  have  also 
indicated  that,  in  practice,  they  often  act  following  a  request  from  a  third  party.  The  only 

9  

Article  3(3)  of  the  ECN+  Directive  states  that  ‘Member  States  shall  ensure  that,  prior  to  taking  [an 
infringement decision], national competition authorities adopt a statement of objections’. In Poland, there are 
two  kinds  of  formal  proceedings:  preliminary  proceedings  (without  parties  to  the  proceedings,  and  thus 
without access to the file) and infringement proceedings (with parties to the proceedings, having access to the 
file). The adoption of the SO has been introduced at the  time  of opening formal infringement proceedings. 
Because interim measures can only be adopted following the opening of such proceedings, the transposition 
of  Article  3(3) has  resulted  in  an  additional  procedural  step  for  the  adoption  of  interim measures,  as  more 
information needs to be communicated to undertakings at the time the infringement proceedings are opened.  

5 

 
 
 
difference appears to be that these national competition authorities are not required to follow up 
on such requests.  

The substantive legal test 

15  national  competition  authorities  have  opted  for  the  substantive  legal  test  of  the  ECN+ 
Directive, which is the same as the test that applies to the Commission when it imposes interim 
measures  under Article  8 of  Council  Regulation (EC) No 1/2003. They need to  show  ‘urgency 
due  to  the  risk  of  serious  and  irreparable  harm  to  competition’  (Bulgaria,  Croatia,  Cyprus, 
Estonia, Finland, Greece, Ireland, Italy, Latvia, Luxembourg, Malta, the Netherlands, Romania, 
Slovakia, and Sweden). 

12  national  competition  authorities  have  a  less  stringent  substantive  legal  test.  In  Poland, 
Portugal  and  Slovenia,  the  harm  should  be  merely  ‘difficult  to  repair’.  In  Denmark,  the  harm 
should be ‘serious’ without even the condition of irreparability.  

Other  national  competition  authorities,  besides  not  necessarily  being  required  to  show 
‘irreparable’  harm,  can  also  show  harm  to  other  undertakings  or  more  general  interests.  For 
example, the Belgian competition authority must show ‘serious, imminent and difficult to repair 
damage to the undertakings whose interests are affected by such infringements’ or ‘harm to the 
general economic interest’. The French competition authority must show ‘serious and immediate 
harm  to  the  general  economy,  to  the  sector  concerned,  to  the  interests  of  consumers  or,  where 
applicable,  to  the  complainant  undertaking’.  The  German  competition  authority  can  rely  more 
broadly on the need to ‘protect competition’ or can take action if there is ‘an imminent threat of 
serious  harm  to  another  undertaking’.  The  Hungarian  competition  authority  can  adopt  interim 
measures  if  it  is  ‘urgently  needed  to  protect  the  legal  or  economic  interests  of  the  concerned 
parties  and  the  development,  maintenance  or  improvement  of  competition  is  threatened’.  The 
Lithuanian  competition  authority  must  show  ‘material  damage  or  irreparable  consequences  for 
the interests of undertakings or the public’. 

For other national competition authorities, the test is instead linked to preserving the outcome of 
the proceedings. The Czech  competition  authority can adopt  interim  measures if it considers it 
‘necessary to  provisionally  regulate the situation of the parties or if there are concerns that the 
execution of a decision could be jeopardised’. The Spanish competition authority must show that 
the interim measures are necessary to ensure ‘the effectiveness of the decision that will be issued 
in due course’.  

In Austria,  prima  facie  evidence  of  an  infringement  is  sufficient  grounds  for  adopting  interim 
measures, irrespective of the harm. 

When  it  comes  to  the  finding  of  an  infringement,  most  national  competition  authorities  must 
demonstrate prima facie evidence of an infringement to be able to adopt interim measures. The 
national laws of France and Slovenia seem to provide for a lighter requirement: in both Member 
States  interim  measures  can  be  adopted  if  it  can  be  shown  that  there  is  ‘a  likelihood’  of  an 
infringement of EU antitrust rules.  

6 

 
 
Procedural requirements 

There  are  differences  between  the  procedural  requirements  of  national  competition  authorities 
when  it  comes  to  the  adoption  of  interim  measures.  This  is  mainly  due  to  differences  in  their 
national enforcement systems, the structure of the national competition authority, and procedural 
requirements which are not harmonised at EU level. By way of example, Austria and Malta have 
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 
authority10. Member States also differ in terms of whether the  same proceedings as those for a 
decision on the merits are to be followed for the adoption of interim measures, or whether there 
are  certain  procedural  particularities  that  allow  the  national  competition  authority  to  act  more 
swiftly. 

16  national  competition  authorities  have  procedural  particularities  when  adopting  interim 
measures  compared  with  their  proceedings  for  a  decision  on  the  merits.  Most  of  these 
particularities relate to a certain limitation to the rights of defence of the undertaking concerned. 
In  Italy,  the national  competition  authority  can, exceptionally and in  cases of extreme urgency, 
impose provisional interim measures without hearing the undertaking concerned (inaudita altera 
parte)11.  Similarly,  the  Bulgarian  competition  authority  does  not  need  to  allow  for  written 
observations from the undertaking or organise a hearing, and there is no access to the file. The 
Swedish  competition  authority  also  indicated  that  there  is  no  need  to  hear  the  undertaking 
concerned, although in practice there is always some dialogue, and that access to the file can be 
refused. 

In Finland and Germany, the right to be heard of the undertaking concerned can be limited due to 
the  urgency  of  the  proceedings.  In  Germany,  this  means  that  the  right  to  be  heard  would  be 
limited  to  an  oral  hearing  as  an  exception  to  the  normal  written  procedure.  The  Portuguese 
competition authority can postpone both the access to the file and the hearing of the parties until 
after the adoption of the interim measures. In Lithuania and Poland, there is no hearing.  

Other  procedural  particularities  relate  to  procedural  deadlines.  In  Czechia,  an  application  for 
interim measures by a third party must be decided within 10 days. In Romania, the undertaking 
has 15 days to respond to the notification of the intention of the competition authority to adopt 
interim measures, and the national competition authority must adopt the decision within another 
15 days.  In Belgium,  the hearing is  organised within  1 month, and the decision on the interim 
measures must be taken within 1 month from the hearing12. In Spain, the investigative body has 2 
months  to  submit  a  report  to  the  board,  while  the  undertaking  has  5  days  to  submit  written 

10  

11  

12  

In  accordance  with  Article  2(3)  of  the  ECN+  Directive,  ‘national  judicial  competition  authority’  means  a 
judicial authority designated by a Member State to carry out some of the functions of a national competition 
authority. 
The measures are of a provisional nature and are subject to confirmation after the parties have been granted 
the opportunity to respond to the allegations. 
The  time  limit  for  the  hearing  can  be  extended  by  2  additional  weeks;  and  the  decision  period  may  be 
suspended  for  8  working  days  in  total  to  allow  the  parties  to  submit  their  observations  if  the  envisaged 
interim measures depart from the request for interim measures.  

7 

 
 
 
observations,  and  the  board  subsequently  has  3  months  to  adopt  a  decision.  In  Malta,  the 
undertaking  has  8  days  to  file  a  reply  to  the  national  competition  authority’s  application  to 
impose  interim  measures,  and  the  court  must  decide  ‘with  urgency’  and  can  organise  only  one 
hearing.  

In  other  Member  States,  certain  parts  of  the  proceedings  can  be  shortened.  The  Portuguese 
competition authority can grant shorter time periods to the parties to present their views (e.g. 5 
days instead of 30 days). This is also the case in Lithuania (i.e. a minimum of 7 days instead of a 
minimum of 14 days). In Denmark, there is a shorter deadline for the hearing.  

The French competition authority follows an indicative timetable of 90 days from the beginning 
of the investigation until the hearing. The proceedings are  also predominantly oral. The parties 
can submit written observations, but the investigative body only presents its views orally at the 
hearing.  For  certain  more  straightforward  cases,  the  process  can  be  limited  to  a  hearing,  or  a 
direct request to the board to reject the application.  

In  Greece,  the  national  competition  authority  can  adopt  an  interlocutory  injunction  (i.e.  a 
temporary order), after summoning the undertaking concerned to a hearing, which is valid until 
the  adoption  of  the  final  interim-measures  decision.  The  interim  measures  must  be  brought 
before  the  decision-making  body  within  30  days,  otherwise  the  interlocutory  injunction 
automatically expires. 

The below overview of the national competition authorities’ powers to adopt interim measures is 
based  on  legislative  texts  and  the  explanations  of  national  competition  authorities.  It  indicates 
which  Member  States  (i)  have  a  less  stringent  substantive  legal  test  for  imposing  interim 
measures, as compared to the test included in Article 11 of the ECN+ Directive and Article 8 of 
Council  Regulation  (EC)  No  Regulation  1/2003  and/or  (ii)  have  less  stringent  procedural 
requirements for the adoption of interim measures, as compared to the proceedings on the merits. 

Table  1:  Overview  of  the  substantive  legal  test  and  procedural  requirements  for  the  adoption  of 
interim measures 

Member State 

Less stringent substantive legal test  

Less stringent procedural requirements 

Austria 

Belgium 

Bulgaria 

Croatia 

Cyprus 

Czechia 

Denmark 

Estonia 

Finland 

France 

Germany 

   

   

   

   

   

   

8 

   

   

   

   

   

   

   

 
 
 
 
 
 
 
 
 
 
 
Greece 

Hungary 

Ireland 

Italy 

Latvia 

Lithuania 

Luxembourg 

Malta 

Netherlands 

Poland 

Portugal 

Romania 

Slovakia 

Slovenia 

Spain 

Sweden 

   

   

   

   

   

   

   

   

   

   

   

   

   

   

   

4.  THE USE OF INTERIM MEASURES IN THE ECN 

As  part  of  the  evaluation  of  Council  Regulation  (EC)  No  1/2003  and  Commission  Regulation 
(EC)  773/2004,  data  was  collected  on  the  decisions  adopted  by  the  national  competition 
authorities  between  the  time  these  Regulations  entered  into  force  in  May  2004  and  up  until 
December 2022. These data have been complemented by the national competition authorities and 
considered  together  with  the  notifications  of  interim-measures  decisions  the  Commission 
received for the period between January 2023 and June 2024. This shows that, between 1 May 
2004  and  1  June  2024,  a  total  of  95  decisions  imposing  interim  measures  were  adopted  by  16 
national  competition  authorities  (Austria,  Belgium,  Croatia,  Cyprus,  Czechia,  France,  Greece, 
Italy,  Latvia,  Luxembourg,  Malta,  Poland,  Portugal,  Slovakia,  Spain  and  Sweden)13.  These 
include decisions imposing interim measures for infringements of EU antitrust rules, as well as 
interim measures for infringements of equivalent provisions under national competition law.  

Of these 95 decisions imposing interim measures, more than half were adopted by three national 
competition  authorities:  the  French  competition  authority  adopted  20  decisions  during  this 
period;  the  Belgian  competition  authority  adopted  18;  and  the  Italian  competition  authority 
adopted 14. Of the remaining 13 national competition authorities that adopted interim measures 

13  

The  total  number  of  decisions  imposing  interim  measures,  as  well  as  the  individual  number  for  certain 
Member States included in Table 2, differ from the data  included in  the evaluation of Council Regulations 
(EC) No 1/2003 and Commission Regulation (EC) 773/2004, both because the data have been complemented 
by some national competition authorities  as part of this analysis, and because an additional time period has 
been taken into account (i.e. the period between 1 January 2023 and 1 June 2024). 

9 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
in the relevant period, 8 national competition authorities adopted interim measures on more than 
one occasion: Croatia, Cyprus, Greece, Malta, Poland, Portugal, Spain and Sweden.  

Table 2: The number of interim measures adopted in the ECN between 1 May 2004 and 1 June 2024 

Member State 

Number of interim measures decisions  

France  

Belgium 

Italy  

Spain 

Greece 

Cyprus 

Sweden  

Poland  

Croatia  

Malta 

Portugal 

Austria 

Czechia 

Latvia  

Luxembourg 

Slovakia 

20 

18 

14 

8 

7 

6 

6 

5 

2 

2 

2 

1 

1 

1 

1 

1 

These  numbers  do  not  reflect  in  full  the  experience  national  competition  authorities  have 
developed  over  the  years  with  interim  measures.  Some  national  competition  authorities  issued 
interim  measures  before  May  200414.  The  numbers  also  do  not  reflect  cases  where  national 
competition  authorities  considered  –  but  ultimately  rejected  –  requests  for  interim  measures; 
cases  where  they  considered  interim  measures  but  they  ultimately  have  not  imposed  them, 
because the parties offered commitments; and cases where they imposed interim measures, but 
those interim measures were not upheld under appeal.  

When comparing these data, it can be observed that 9 of the 11 national competition authorities 
that have already adopted more than one decision imposing interim measures have less stringent 
procedural requirements than for their proceedings on the merits (Belgium, France, Greece, Italy, 
Malta,  Poland,  Portugal,  Spain, Sweden).  For  France  and  Belgium,  which  are  the  two  national 
competition authorities that adopted most interim-measures decisions, and Poland, Portugal and 
Spain, this is coupled with a less stringent legal test. 

14  

For example, the Finnish competition authority issued a decision imposing interim measures in 1993. 

10 

 
 
 
 
 
 
 
 
When looking at the number of decisions adopted per year during the period from May 2004 to 
June  2024,  it  can  be  observed  that  the  national  competition  authorities  adopted,  on  average,  5 
decisions imposing interim measures per year. The chart below shows that the number has varied 
per year, but there is no overall increasing or decreasing trend.  

Chart 1: The number of interim measure decisions by national competition authorities of the ECN 
per year 

Number of interim measures decisions per year

12

10

8

6

4

2

0

5.  EXPERIENCE WITH THE TOOL: USEFULNESS AND SUITABLE CASES  

National  competition  authorities  also  provided  qualitative  feedback  on  their  experience  with 
interim measures. The great majority of the responding national competition authorities had an 
overall  positive  experience  with  interim  measures  and  said  that  they  consider  them  a  useful 
enforcement tool15. These national competition authorities underlined the importance of: (i) their 
ability, via interim measures, to either preserve the structure of a market until a decision in the 
main proceedings is adopted, or to restore competition on the market in the short term; (ii) the 
deterrent effect of interim measures; and (iii) the suitability of interim measures to address issues 
arising  in  fast-moving markets.  As one of them  explained ‘they can be used to  prevent  serious 
and  irreparable  damage  to  competition  which  could  otherwise  not  be  prevented  through  other 
available tools’. 

15  

14  national  competition  authorities  responded  to  a  question  asking  for  their  overall  views  on  interim 
measures and 13 responded saying that they considered them useful. 

11 

 
 
 
 
 
 
One  national  competition  authority  did  not  speak  favourably  of  this  enforcement  tool,  and 
instead mentioned the challenges related to proving both a prima facie infringement and urgency 
for  the  imposition  of  interim  measures.  This  national  competition  authority  prefers  instead  to 
swiftly proceed with the proceedings that lead to the adoption of a decision on the merits of the 
case.  

When asked about the impact of interim measures on the proceedings on the merits (i.e. whether 
interim measures increase or decrease the total duration of proceedings, or whether they increase 
the  chance  of  reaching  a  settlement  with  the  parties  involved  or  the  parties  offering 
commitments),  national  competition  authorities  had  diverging  views16.  Most  national 
competition  authorities,  all  of  which  have  adopted  at  least  one  decision  imposing  interim 
measures,  consider  that  the  use  of  this  enforcement  tool  may  decrease  the  total  length  of 
proceedings, some of which may end with commitments offered by the parties to the proceedings 
to solve the antitrust concerns identified. Some national competition authorities argued that the 
impact  of  interim  measures  on  the  length  on  the  main  proceedings  can  vary,  from  shortening 
proceedings to  prolonging  them, depending  on both: (i) the specific circumstances  of the case; 
and, most importantly (ii) whether the decision imposing interim measures is ultimately upheld 
by the review court.  

Many examples of cases show that interim measures are a versatile tool, although far from being 
suitable for all antitrust investigations. They can be useful in investigations into both potentially 
anti-competitive agreements and potential abuses of a dominant position. The chart below shows 
that, of the 95 decisions adopted by national competition authorities, most of the decisions based 
on EU antitrust rules were related to potential abuses of a dominant position (Article 102 TFEU). 

Chart 2: The legal basis of the interim measure decisions by national competition authorities in the 
ECN 

Legal basis for the adoption of interim measures decisions

13%

35%

38%

14%

Article 101 TFEU

Article 102 TFEU

Articles 101 and 102 TFEU

National antitrust rules

16  

9 national competition authorities responded to the question. 

12 

 
 
 
 
 
 
The most common practices for which interim measures were imposed include refusal to supply 
(where  a  dominant  undertaking  refuses  to  supply  a  product  or  service  to  a  downstream 
competitor), and collective boycott (where a group of competitors agrees to exclude or hinder an 
actual  or  potential  competitor).  National  competition  authorities  point  out  that  it  is  often  cases 
involving  a  more  straightforward  theory  of  harm  that  are  particularly  suitable  for  the  use  of 
interim  measures.  Although  some  national  competition  authorities  indicate  that  cases  in  the 
digital  sector  may  be  particularly  suitable  for  the  use  of  interim  measures,  the  examples  show 
that  interim  measures  have  been  imposed  across  different  sectors,  from  telecoms  to  basic 
industries and from broadcasting to the agricultural sector. 

The interim measures that have been adopted by national competition authorities vary depending 
on  the  specific  circumstances  of  the  case.  They  typically  take  the  form  of  an  obligation  to 
suspend  an  agreement,  or  certain  of  its  clauses,  to  (re)start  the  supply  of  a  certain  product  or 
service or to change the conditions under which access is granted to a certain facility or resource. 

The below  examples  provided by the three national  competition  authorities that have used this 
tool most extensively illustrate the versatility of interim measures. 

Obliging Google to negotiate remuneration with news publishers  

In 2019, the French competition authority issued interim measures obliging Google to negotiate 
with  news  publishers  the  remuneration  for  showing  their  copyright-protected  content,  such  as 
photos or short extracts of their articles17. At that time, a new legislative rule was about to come 
into force that gave news publishers the right to allow or forbid the showing of their content by 
digital  platforms.  Google’s  intention  was  to  simply  stop  showing  any  such  content  on  its 
websites, including Google Search, unless news publishers gave Google the authorisation to use 
such content free of charge. The French competition authority acted on a complaint from news 
publishers  who  believed  that  this  approach  could  amount  to  an  abuse  of  Google’s  dominant 
position, because Google refused to engage in negotiations about the fair remuneration to be paid 
for  the  use  of  such  copyright-protected  content.  The  French  competition  authority  therefore 
ordered  interim  measures  to  ensure  that  Google  negotiate  in  good  faith  with  news  publishers 
until a decision was taken on the merits of the case, subsequently imposing a fine on Google for 
not  complying  with  the  said  measures.  The  proceedings  on  the  merits  concluded  with 
commitments being proposed by Google and accepted by the French competition authority. 

Allowing third party broadcasters to show football events 

In 2023, the Italian competition authority imposed interim measures on two broadcasters banning 
certain  contractual  clauses  between  them  that  aimed  to  ensure  that  only  them,  but  no  other 
broadcaster,  would  have  the  right  to  show  certain  football  competitions18.  With  the  interim 
measures,  the  Italian  competition  authority  intervened  to  ensure  that  other  broadcasters  of 

17  

18  

Décision 19-MC-01 du 31 janvier 2019. 
I857 - ACCORDO TIM-DAZN SERIE A 2021/2024. 

13 

 
 
 
 
 
 
 
 
 
 
sporting events could negotiate for the right to also show the football competitions in question. 
The interim measures  made it possible to  see football matches  on channels  other than those of 
the  two  broadcasters.  After  having  investigated  the  merits  of  the  case,  the  Italian  competition 
authority imposed fines on the two broadcasters who concluded the agreement. The decision of 
the authority was upheld on appeal.  

Preserving competition in the market for internet broadband 

In 2023, the Belgian competition authority imposed interim measures on Proximus as part of an 
investigation into a potential abuse of a dominant position19. Proximus acquired EDPnet, one of 
its  direct  competitors  in  the  wholesale  and  retail  markets  for  fixed  broadband  internet.  The 
Belgian  competition  authority  believed  that  this  acquisition  could  have  an  adverse  effect  on 
competition. It therefore imposed interim measures on Proximus to ensure both the continuity of 
the  operations  of  EDPnet  and  EDPnet’s  operational  and  commercial  independence  from 
Proximus  for  the  duration  of  the  investigation  into  the  proceedings  on  the  merits.  Proximus 
ultimately decided to  resell  EDPnet  to  the new entrant  in  the Belgian telecom  sector, allowing 
the Belgian competition authority to conclude its investigation. 

6.  CONCLUSIONS 

By  now  all  national  competition  authorities  of  the  ECN  have  the  power  to  adopt  interim 
measures for infringements of EU antitrust rules.  

While  most  national  competition  authorities  already  had  this  power  before  the  transposition  of 
the  ECN+  Directive,  the  Directive  has  led  to  more  harmonisation,  by  allowing  national 
competition authorities to: (i) issue interim measures ex officio, meaning on the initiative of the 
national  competition  authority  without  the  prior  request  of  a  third  party;  (ii)  base  such  interim 
measures on the finding of a prima facie infringement; and (iii) renew the interim measures until 
the adoption of the decision on the merits of the case. Some differences remain, both in terms of 
the substantive legal test to be applied and procedural requirements across Member States.  

The actual use of interim measures varies greatly among national competition authorities. Most 
national  competition  authorities  that  adopted  more  than  one  decision  have  certain  procedural 
particularities that allow them to act more swiftly than in proceedings on the merits, sometimes 
in combination with a less stringent substantive legal test. Thus, it appears that more streamlined 
proceedings,  possibly  in  combination  with  a  less  stringent  substantive  legal  test  for  imposing 
interim measures leads to greater use of this enforcement tool.  

At  the  same  time,  there  are  also  national  competition  authorities  that  despite  less  stringent 
proceedings  and  substantive  legal  test  have  not  adopted  decisions  imposing  interim  measures. 
Thus, it  also  appears  to  be  a strategic choice  of  national  competition  authorities  to  use  interim 
measures.  

19  

Décision n° ABC-2023-RPR-17 du 21 juin 2023 dans l’affaire n° CONC-RPR-23/0002. 

14