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Request for interim measures: new rejection by the President of the Competition Council

On December 17, 2020, the Chairman of the Competition Council (hereinafter the "Chairman of the Council") issued a decision by which he rejected a request for interim measures requested by the Bionext SA laboratory against the National Laboratory of Health.

This request for precautionary measures is part of a substantive procedure initiated by the Bionext SA laboratory due to several abuses of a dominant position that would have taken place in the context of the health crisis linked to Covid-19.

The Chairman of the Board thus recalls the conditions to which requests for interim measures are subject. These are cumulative and four in number:

Proceedings on the merits must have been initiated;

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

A prima facie violation of competition law must be able to be established;

The practice complained of must cause serious and irreparable damage to the complainant company or to economic public order.

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

In the context of an abuse of a dominant position, the Chairman of the Board therefore had to find a dominant position on the part of the company concerned by the complaint, thus necessarily implying a summary definition of the markets concerned, and behavior likely to constitute an abuse within the meaning of article 5 of the law of October 23, 2011 on competition and article 102 of the Treaty on the functioning of the European Union.

As the Chairman of the Board was unable to establish the existence of a prima facie violation of competition law, the request for interim measures was therefore rejected.

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

Indeed, since the law of May 17, 2004 relating to competition, the first law on competition, until today only four decisions have been rendered in terms of interim measures. Of these four decisions, three of them refused the granting of interim measures. Only a decision of January 22, 2008 came to pronounce such measures within the framework of a procedure on the merits for abuse of dominant position. However, this decision was subsequently overturned by the Administrative Court.

This ineffectiveness is due to the conditions for granting precautionary measures which are particularly difficult to fulfill. It is therefore to be hoped that these conditions will soon be subject to an attenuation in order to make this instrument finally operational.

Our competition team is at your disposal if you need assistance or advice on competition law:

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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