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Interim measures: the Administrative Tribunal confirms a decision of the President of the Competition Council rejecting a request for interim measures

Apr 14, 2021 - Newsflashes

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By a judgment rendered on March 24, 2021 [1], the Administrative Tribunal confirmed a decision rendered by the President of the Competition Council (hereinafter the “President”) rejecting a request for interim measures against the company Amazon Services Europe S.à r.l. [2].

This request for interim measures is part of a main proceeding initiated on the basis of the Articles prohibiting the abuse of a dominant position [3].

The Administrative Tribunal thus points out that four cumulative conditions must be met in order to pronounce the grant of interim measures:

  1. A main proceeding must have been initiated;
  2. A request for interim measures must have been made;
  3. A prima facie violation of competition law must have been established; and
  4. The denounced practice must cause serious and irreparable harm to public economic order or to the plaintiff.

Concerning the fourth condition, the Administrative Tribunal clarified that “the required infringement may relate either to public economic order or to the situation of the applicant himself, while the criteria of the seriousness of the infringement, its irreparable nature, as well as the necessary existence of a causal link between the denounced practice and the infringement invoked are cumulative criteria” [4].

This judgment confirms the difficulty in obtaining interim measures under the current Competition Act of 23 October 2011 due to the difficulty in fulfilling the four cumulative conditions mentioned above.

It is thus to be hoped that Bill n° 7479, organizing the National Competition Authority and repealing the Competition Act of 23 October 2011, will be amended in order to insert less restrictive conditions and make effective these interim measures in competition law.

Finally, in its decision rendered on July 3, 2019, the Competition Council endorsed the criteria implemented by the French Competition Authority in order to characterize a situation of economic dependence “although the notion of abusive exploitation of a situation of economic dependence is not directly transposable into Luxembourgish law”. This concept of economic dependence should therefore also be introduced into Luxembourgish competition law [5].

  • [1] Judgment of the Administrative Tribunal, 1st chamber, March 24, 2021, number 43612.
  • [2] Decision of the President of the Competition Council, July 3, 2019, Amazon Services Europe S.à r.l., 2019-MC-01.
  • [3] Article 5 of the Competition Act of 23 October 2011, Article 102 of the Treaty on the Functioning of the European Union.
  • [4] Judgment of the Administrative Tribunal, 1st chamber, March 24, 2021, number 43612, page 22.
  • [5] Decision of the President of the Competition Council, July 3, 2019, Amazon Services Europe S.à r.l., 2019-MC-01, point 28.

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This publication is for general guidance only and does not constitute definitive legal advice.