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Request for Interim Measures: New Rejection by the President of the Competition Council

On 17 December 2020, the President of the Competition Council (hereinafter the “President of the Council”) rendered a decision rejecting a request for interim measures requested by the laboratory Bionext S.A. against the Laboratoire National de Santé (hereinafter the “LNS”).

This request for interim measures was part of a main proceeding initiated by Bionext S.A. in relation to several potential abuses of dominant position that allegedly took place in the context of the Covid-19 health crisis.

The President of the Council thus reminded the conditions for granting interim measures. These conditions are cumulative:

A main proceeding must have been initiated;

The plaintiff must have made an express request for interim measures;

A prima facie violation of competition law must have been established;

The denounced practice must cause serious and irreparable harm to the plaintiff or to the public economic order.

In this decision, the President of the Council provided an in-depth analysis of the condition relating to a prima facie violation of competition law.

As the main proceeding concerns possible abuses of a dominant position, the President of the Council had to determine whether the LNS holds a dominant position, which necessarily implies a summary definition of the markets concerned, and to assess whether the practices concerned could, at first sight, constitute abuses.

It should be reminded that abuses of a dominant position are prohibited by Article 5 of the Competition Act of 23 October 2011 (hereinafter the “Competition Act”) and Article 102 of the Treaty on the Functioning of the European Union.

As the condition concerning a prima facie violation of competition law was not established, interim measures were not granted.

This decision thus confirms the ineffectiveness of this instrument under the current Competition Act.

Indeed, since the Competition Act of 17 May 2004, first competition act, only four decisions were rendered on interim measures. Of these decisions, three of them refused to grant interim measures. Only one decision of 22 January 2008 pronounced such measures in the context of a main proceeding concerning abuses of dominant position. However, the administrative Tribunal annulled this decision.

This inefficiency is due to the conditions for granting interim measures, which are particularly difficult to meet. It is therefore to be hoped that these conditions will soon be reviewed in order to make this instrument operational.

For further information and/or any advice on competition issues, feel free to contact our competition team:

Gabriel BLESER, Partner

Giulia JAEGER, Counsel

Clémence PATTE, Associate

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

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