ARTICLE
23 September 2019

Interim Measures For Competition Law Concerns - Recent EU Case And The Irish Perspective

M
Matheson

Contributor

Established in 1825 in Dublin, Ireland and with offices in Cork, London, New York, Palo Alto and San Francisco, more than 700 people work across Matheson’s six offices, including 96 partners and tax principals and over 470 legal and tax professionals. Matheson services the legal needs of internationally focused companies and financial institutions doing business in and from Ireland. Our clients include over half of the world’s 50 largest banks, 6 of the world’s 10 largest asset managers, 7 of the top 10 global technology brands and we have advised the majority of the Fortune 100.
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 ...
European Union Antitrust/Competition Law

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. damages would not be an adequate remedy; and
  2. 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.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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