An entirely new type of administrative decisions has been available since the effective of Council Regulation 1/2003,211 which enables the Commission to adopt an interim measure
22(5) European Competition Law Review 156, p162.
206 Joseph A. Schumpeter, Capitalism, Socialism and Democracy (Taylor & Francis e-Library edition, George Allen
& Unwin, 2003), p85.
207 David S. Evans and Richard Schmalansee, ‘Some Economic Aspects of Antitrust Analysis in Dynamically
Competitive Industries’ (2002) 2 Innovation Policy and the Economy 1, p17.
208 Josef Drexl, ‘The Relationship between the Legal Exclusivity and Economic Market Power’ in Inge Govaere and
Hanns Ullrich (eds.), Intellectual Property, Market Power and the Public Interest (P.I.E. Peter Lang, 2008) 13, pp.21-22.
209 Christian Ahlborn, Vincenzo Denicolò, Damien Geradin and A Jorge Padilla, ‘DG Comp’s Discussion Paper on
Article 82: Implications of the proposed Framework and Antitrust Rules for Dynamically Competitive Industries’, available at http://ec.europa.eu/competition/antitrust/art82/057.pdf, last visited on 20 July 2014, p22; David S. Evans and Richard Schmalansee, ‘Some Economic Aspects of Antitrust Analysis in Dynamically Competitive Industries’ (2002) 2 Innovation Policy and the Economy 1, p18.
210 David S. Evans and Richard Schmalansee, ‘Some Economic Aspects of Antitrust Analysis in Dynamically
Competitive Industries’ (2002) 2 Innovation Policy and the Economy 1, pp.18, 20 and 34.
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when a case is still ongoing. The Commission, acting on its own initiative, may adopt such decision only if the following requirements are met: (1) it is “urgent due to the risk of serious and irreparable damage to competition”; (2) there is “a prima facie finding of infringement”.212
The same article provides that “[i]nterim measures must be for a limited period of time and may be renewed in so far as is necessary and appropriate”.213 The form of the remedies in an interim
decision is in general the same as that would be adopted in an infringement decision. Normally behavioural remedies would be applied. In IMS Health, the Commission requested the holder of 1860 brick structure to negotiate a copyright license with its competitor in the interim decision.214 It might not be effortless to interpret the condition which requires the appearance
of urgency due to the risk of serious and irreparable damage to competition. While the evaluation of a serious harm depends on a case-by case basis analysis, it is clearly ruled by the General Court in La Cinq215 that to assess whether there is an irreparable damage, what the Commission need to consider is whether the damage will “no longer be remedied by the decision to be adopted by the Commission upon the conclusion of the administrative procedure”, but not beyond what is necessary to assess whether the damage “cannot be remedied by any subsequent decision” which includes the decision of EU Courts or Member States’ courts.216 For the question whether there is a clear causal relationship between urgency
and serious and irreparable damage, or in other words whether or not urgency and serious and
irreparable damage are cumulative requirements, the General Court has given its answer in IMS Health that “if a risk of serious and irreparable harm exists, urgency is inevitably
simultaneously established”.217 IMS Health is also a case where the Commission and the Court
had dispute on interpreting serious and irreparable damage in practice. The interim decision issued by the Commission was based on the finding that there was a high risk that the competitors would be eliminated from the market.218 However, the president of the General
Court on the contrary concluded that the risk was not as high as estimated by the Commission and thus suspended the decision. It is worth noting that the order from the president of the General Court put forward a balancing approach, which put both the possible harm to the incumbent and the harm to the competitors on the scale. The grant of an interim measure,
down in Article 81 and 82 of the Treaty (hereinafter ‘Regulation 1/2003’), [2003] OJ L1/1.
212 ibid, Art. 8(1). 213 ibid, Art. 8(2).
214 COMP D3/38.044 IMS Health, supra note 66, Art. 2.
215 Judgment of 24 January 1992 La Cinq SA v. Commission, T-44/90, ECR, ECLI:EU:T:1992:5. 216 Ibid, Para 79-80.
217 Judgment of 26 October 2001, IMS Health v Commission, T-184/01 R, ECR, ECLI:EU:T:2001:259, Order of the
President of the General Court, supra note 67, Para 54.
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according to the order, should only be possible under the circumstance that the irreparable detriment to the effective competition in the absence of such interim measure, namely the elimination of all other competitors in the market, clearly outweighs the potential damage to the dominant undertaking when such an interim decision is granted.219 There might be two reasons
to explain why refusal to license cases may not be the appropriate cases to adopt interim measures. Firstly, interim decision is an administrative measure which by its nature is inclined to protect the short term interests of the specific victim or the competitive conditions from being irreparably damaged, while in refusal to license cases the long term interests – such as the incentive of the accused undertaking and other undertakings to innovate and to invest, the long term consumer welfare – shall also be taken into consideration. Secondly, the balancing test put forward by the president of the General Court in IMS Health requires the Commission to decide whether the possible harm to the incumbent outweigh the harm to the competitors when imposing an interim measure, which normally is a compulsory license order in a refusal to license case, while in practice such a comparison would be difficult, or even impossible to make until the end of the whole assessment that however leads to the final decision of the Commission. In the foregoing analysis, theoretically and practically, interim measure might not be the proper choice for the Commission in the refusal to license cases where the competition authority would normally be at pains for several years like in Microsoft case to conduct the assessment and make a decision based on all relevant circumstances.