EU: Vestager announces “interim measures”

Margrethe Vestager announced a new methoc for the EU’s competition enforcer to crack down on technology groups by dusting off a powerful weapon, reported the Financial Times.

The investigation unveiled on Wednesday, June 26, by Ms Vestager into US chip manufacturer Broadcom seeks to overcome what she has come to see as one of the major challenges to competition policy in fast-moving technological markets, the years that can pass before an antitrust measure can be implemented. In the intervening period, the dominance of a deep-pocketed company over its rivals can be cemented, regardless of the outcome of a case.

“The technology cases the European Commission has recently pursued have all been for naught, as the decisions have come too late to have any real effect in the market,” said Thomas Vinje of Clifford Chance, who represented complainants in a case against Google for illegally favoring its shopping service, and also worked with Spotify in its recent complaint against Apple for allegedly abusing its power over the App Store to give Apple Music an advantage.

Ms Vestager is seeking to use interim measures “to order Broadcom to halt its behaviour while our investigation proceeds, to avoid any risk of serious and irreparable harm to competition.”

Interim measures were first established in EU competition law in 1980. But they have remained dormant since 2001, when a European court set a high legal threshold for their use. Now, however, Ms Vestager is building on similar efforts made by French competition authorities in some domestic antitrust cases.

“If this [EU] test case works, then we can expect a number of future unilateral conduct investigations in digital and high-tech sectors to incorporate interim measures,” said Ioannis Kokkoris, antitrust expert and professor of law and economics at Queen Mary University of London.