Interim Measures by the Bundeskartellamt

1. Introduction

Interim measures are temporary measures imposed by the Bundeskartellamt, Germany’s Federal Cartel Office, to prevent competitive harm from continuing or becoming irreversible while a full competition-law investigation is still pending.

They are particularly important where waiting for a final infringement decision would itself allow the suspected conduct to:

eliminate competitors;

cause irreversible customer switching;

destroy access to an important input or platform;

entrench a dominant position;

distort an emerging digital market; or

make an eventual remedy ineffective.

Under German competition law, the principal statutory basis is Section 32a of the German Competition Act (GWB). It gives the Bundeskartellamt a mechanism to intervene rapidly in appropriate cases rather than waiting for completion of the ordinary infringement procedure.

The concept is closely connected with EU competition law, especially Article 8 of Regulation 1/2003, which permits the European Commission to adopt interim measures where there is prima facie infringement and urgency because of a risk of serious and irreparable damage to competition.

2. Statutory Basis: Section 32a GWB

Section 32a GWB is the central German provision concerning interim measures in competition proceedings.

The basic structure requires the authority to be satisfied, in substance, that:

there is a prima facie infringement of competition law; and

urgent intervention is necessary because of the risk of serious and irreparable damage to competition.

The provision is therefore not designed to replace the final infringement decision.

Instead, it operates as a temporary protective mechanism.

The basic logic

The Bundeskartellamt effectively asks:

“Is there sufficiently strong preliminary evidence of unlawful conduct, and would waiting for the final decision allow competitive harm that could not realistically be repaired later?”

If both conditions are sufficiently established, interim intervention can be justified.

3. Prima Facie Infringement

The first major requirement is the existence of a sufficiently convincing preliminary case.

The Bundeskartellamt does not necessarily have to establish the infringement with the same evidentiary completeness required for the final decision.

Nevertheless, mere suspicion is insufficient.

There must be a substantial evidentiary basis indicating that the conduct potentially violates competition law.

For example:

Article 101 TFEU / Section 1 GWB cartel conduct;

Article 102 TFEU / Sections 19 or 20 GWB abuse;

exclusionary conduct by a dominant platform;

discriminatory access conditions;

refusal to supply;

self-preferencing;

exploitative conduct;

tying or bundling; or

anticompetitive contractual restrictions.

This creates a lower temporal threshold than the final merits determination, but not an absence of legal scrutiny.

4. Serious and Irreparable Damage to Competition

The second requirement is the distinctive feature of interim measures.

The authority must have reason to believe that delaying intervention would produce serious and irreparable competitive damage.

Examples include:

A. Exit of competitors

If a dominant platform's conduct could force a small but strategically important competitor out of the market before the investigation concludes, an interim measure may preserve competitive conditions.

B. Loss of network effects

Digital markets can exhibit strong network effects.

Once users, advertisers, developers or merchants move to a dominant ecosystem, reversing the migration may be extremely difficult.

C. Data accumulation

A platform may continuously accumulate:

user data;

transaction data;

behavioural information;

advertising data;

AI-training data.

If the resulting data advantage becomes entrenched, damages awarded years later may not recreate the lost competitive opportunity.

D. Innovation foreclosure

A nascent technology may disappear before the authority reaches a final decision.

The harm is potentially irreversible because the competing technology, investment and entrepreneurial capability may never return.

5. Interim Measures Are Not Final Remedies

This distinction is essential.

Thus, an interim measure should generally be proportionate to the immediate competitive threat.

6. Procedural Character

Interim measures reflect a tension between two competing considerations.

First

The authority must act quickly enough to protect competition.

Second

The undertaking must not be subjected to a quasi-final sanction merely because the authority has formed a preliminary view.

Therefore, interim proceedings require careful balancing of:

evidentiary strength;

urgency;

proportionality;

duration;

competitive harm;

business autonomy;

procedural fairness.

7. Relationship With Sections 19 and 20 GWB

Interim measures become particularly significant in cases involving digital ecosystems and dominant undertakings.

Section 19 GWB addresses abusive conduct by dominant undertakings.

Section 20 GWB extends certain protections to undertakings possessing particular forms of market power even where traditional dominance may not yet be established.

This is important because modern digital competition problems frequently arise before conventional dominance becomes fully entrenched.

For example, a powerful digital intermediary may:

control access to customers;

possess a critical dataset;

operate an important infrastructure;

control interoperability;

determine ranking;

impose contractual conditions.

A rapid interim response may therefore be important where waiting for a lengthy dominance investigation would allow the market structure to change permanently.

8. Interim Measures and Digital Markets

Digital markets provide a particularly strong rationale for interim intervention.

Consider a hypothetical dominant app store.

Suppose it suddenly prohibits rival payment systems.

A final infringement proceeding could take considerable time.

During that period:

rival payment providers lose users;

developers redesign their systems around the dominant payment system;

consumers become accustomed to the dominant system;

rivals lose transaction data;

switching costs increase;

the platform's ecosystem becomes more entrenched.

Even if the authority ultimately prohibits the conduct, the competitive market existing before the conduct may no longer be recoverable.

This is precisely the type of irreversibility problem that interim measures are designed to address.

9. Proportionality

An interim measure should generally be no broader than necessary.

Possible measures include:

suspending a particular contractual restriction;

requiring continued access to an essential interface;

prohibiting discriminatory treatment;

preventing termination of a competitor;

maintaining interoperability;

suspending implementation of a particular policy;

preserving access to customers or infrastructure.

The authority must avoid transforming an interim measure into an unnecessarily extensive regulation of the undertaking's entire business model.

10. Duration

The temporary character of an interim measure is fundamental.

It normally exists only for as long as necessary to prevent the identified competitive harm while the underlying investigation proceeds.

This distinguishes the mechanism from a final structural or behavioural remedy.

The duration should therefore be connected to:

the ongoing investigation;

the continuing risk;

the urgency;

the proportionality of intervention.

11. Relationship With EU Competition Law

German interim measures should be understood against the background of EU competition law.

Article 8 Regulation 1/2003

The European Commission can adopt interim measures where:

there is a prima facie finding of infringement; and

there is urgency because of the risk of serious and irreparable damage to competition.

The German approach under Section 32a GWB broadly reflects the same underlying principle.

The common idea is:

Competition law must sometimes preserve the market before it can finally determine the merits.

12. Important Case Laws

Because German interim-measure jurisprudence is relatively specialized, several important cases from EU competition law provide useful doctrinal guidance alongside German competition cases.

1. Hilti AG v Commission

Case 53/87, Hilti AG v Commission

Hilti concerned abusive conduct involving a dominant undertaking in the nail-gun and related products market.

The case is important for interim-measure analysis because it illustrates how dominance and exclusionary conduct can affect the structure of competition rather than merely individual competitors.

Relevance

It supports the proposition that competition law can intervene where a dominant undertaking uses its market position to restrict competitive opportunities for rivals.

For interim measures, this is particularly relevant where exclusionary conduct is capable of producing irreversible market effects.

2. Commercial Solvents v Commission

Joined Cases 6/73 and 7/73, Istituto Chemioterapico Italiano S.p.A. and Commercial Solvents Corporation v Commission

Commercial Solvents is a foundational refusal-to-supply case.

A dominant undertaking attempted to restrict the supply of an important input to a downstream competitor.

Importance for interim measures

The case demonstrates the competitive significance of maintaining access to an essential input.

If access is terminated and the downstream rival exits the market, a later final decision may come too late.

Thus, refusal-to-supply situations are classic candidates for considering urgent intervention.

3. United Brands v Commission

Case 27/76, United Brands Company v Commission

United Brands established important principles concerning dominance and abusive conduct.

The Court considered, among other matters, exclusionary and discriminatory conduct by a dominant undertaking.

Interim-measure relevance

The case illustrates why competition authorities must consider:

market power;

dependency;

discriminatory treatment;

commercial exclusion; and

effects on competitive structure.

In a modern platform market, comparable concerns can arise where a dominant intermediary selectively restricts access to its ecosystem.

4. Hoffmann-La Roche v Commission

Case 85/76, Hoffmann-La Roche & Co. AG v Commission

This is one of the leading EU cases on abuse of dominance and loyalty-inducing arrangements.

The Court emphasized the special responsibility of dominant undertakings not to impair genuine undistorted competition.

Interim-measure relevance

Where loyalty arrangements rapidly foreclose competitors, waiting for a final decision can allow the dominant undertaking to establish entrenched customer relationships.

Therefore, the case supplies an important substantive foundation for understanding why rapid protective intervention may sometimes be justified.

5. Bronner v Mediaprint

Case C-7/97, Oscar Bronner GmbH & Co. KG v Mediaprint

Bronner is the leading EU authority concerning refusal of access to an infrastructure under the essential-facilities doctrine.

The Court established stringent conditions for requiring a dominant undertaking to provide access to an infrastructure.

Relevance

Bronner is especially important for interim measures because a competition authority must distinguish between:

legitimate business autonomy; and

circumstances in which denial of access threatens competition.

An interim access obligation therefore requires a sufficiently strong preliminary legal basis.

6. IMS Health

Case C-418/01, IMS Health GmbH & Co. OHG v NDC Health GmbH & Co. KG

IMS Health dealt with access to a commercially important information structure protected by intellectual-property rights.

The Court considered circumstances in which refusal to license could constitute abuse.

Interim-measure relevance

The case is particularly relevant to modern digital markets involving:

datasets;

APIs;

interoperability;

proprietary standards;

digital infrastructure.

If a dominant undertaking controls a critical digital resource, an interim measure could potentially preserve competitive access while the legality of the refusal is investigated.

7. Microsoft v Commission

Case T-201/04, Microsoft Corp. v Commission

Microsoft is one of the most important EU cases involving technological interoperability and leveraging of market power.

The case concerned Microsoft's refusal to provide interoperability information and the tying of products.

Relevance to interim measures

Microsoft demonstrates why technological exclusion can produce structural consequences.

In digital markets, technical restrictions can cause competitors to lose:

users;

developers;

compatibility;

data;

distribution opportunities.

Once ecosystem dependence becomes entrenched, later intervention may be less effective.

8. Google Shopping

Google Search (Shopping) litigation involving the European Commission and EU courts.

The case concerned Google's treatment of its comparison-shopping service within its general search results.

Interim-measure relevance

Although the proceedings were not themselves a Section 32a GWB interim-measure case, the litigation is highly relevant to the logic of urgent intervention in digital markets.

Ranking practices can rapidly alter:

traffic;

visibility;

customer acquisition;

competitor viability.

This illustrates why digital competition authorities increasingly consider whether waiting for a final decision could allow competitive harm to become self-reinforcing.

9. Qualcomm

The Qualcomm litigation before the EU institutions provides another important illustration of competition enforcement involving technology markets, exclusionary incentives and rapidly evolving ecosystems.

Its importance for interim measures lies less in a direct Section 32a ruling and more in demonstrating the difficulties of assessing competitive effects in highly dynamic technology markets.

Where markets evolve rapidly, delay can materially affect the competitive position of firms before the legal process concludes.

10. Facebook / Meta – Bundeskartellamt

The Facebook data case of the Bundeskartellamt is particularly important for understanding modern German competition enforcement.

The Bundeskartellamt investigated Facebook's combination of data collected from different sources and its relationship with Facebook's dominant position.

The case demonstrates the increasing willingness of German competition law to examine:

data concentration;

ecosystem power;

user dependency;

cross-service data combination;

digital market power.

Although this case is principally associated with the substantive abuse proceeding rather than being a classic Section 32a interim-measure decision, it is highly relevant to the policy environment in which rapid competition intervention may become necessary.

13. The Bundeskartellamt's Digital-Market Powers

Interim measures have become especially important following Germany's strengthened digital competition framework.

Section 19a GWB enables the Bundeskartellamt to identify undertakings of paramount significance across markets and subsequently address specified types of potentially abusive conduct.

This creates an important relationship:

Market power → Section 19a designation → investigation of prohibited conduct → possible rapid intervention

The combination is particularly significant for companies operating:

search engines;

marketplaces;

operating systems;

advertising ecosystems;

social networks;

cloud infrastructures;

digital payment systems.

14. Interim Measures and Ecosystem Competition

Traditional competition law frequently examines a particular relevant market.

Digital ecosystems create a more complicated problem.

A company may simultaneously control:

the operating system;

app distribution;

payments;

advertising;

identity;

cloud infrastructure;

user data;

AI services.

A seemingly minor contractual restriction in one layer may therefore reinforce power throughout the ecosystem.

Interim measures can help prevent ecosystem foreclosure while the authority evaluates the broader competitive consequences.

15. Interim Measures and Self-Preferencing

Consider a dominant platform that ranks its own service above competing services.

If competitors lose visibility immediately, the resulting effects may include:

reduced traffic;

loss of customers;

loss of data;

lower investment;

reduced innovation;

eventual exit.

The longer the conduct continues, the greater the feedback loop.

An interim measure could theoretically require the platform to maintain neutral treatment pending the final investigation.

The legal challenge is establishing the necessary preliminary infringement and urgency without prejudging the final case.

16. Interim Measures and Data Access

Data can generate particularly difficult irreversibility problems.

Suppose a dominant undertaking prevents competitors from accessing a commercially important dataset.

During a multi-year investigation:

the dominant firm continues improving its algorithms;

competitors lose training data;

consumers remain locked into the incumbent;

network effects grow;

the data advantage becomes cumulative.

A later access remedy may not fully restore the competitive position that existed when the investigation began.

Therefore, data-related exclusion can strengthen the practical case for timely interim intervention.

17. Interim Measures and AI Markets

The doctrine is increasingly relevant to AI competition.

Potential scenarios include a dominant AI ecosystem controlling:

foundation models;

cloud computing;

GPUs;

data;

developer APIs;

model marketplaces;

distribution channels.

Suppose an integrated undertaking suddenly restricts competitors' access to an essential API or cloud-based AI infrastructure.

If rivals are forced out during the investigation, restoring competition later may be extremely difficult.

Interim measures could therefore become an important instrument for preserving competition in rapidly evolving AI markets.

18. Interim Measures and Merger Situations

Interim intervention is also conceptually important where corporate transactions or integration steps threaten to change competitive conditions before a competition authority completes its assessment.

The authority must distinguish between:

ordinary merger-control mechanisms;

interim measures concerning potentially unlawful conduct; and

measures designed to preserve the effectiveness of competition proceedings.

The objective is the same at a structural level: prevent irreversible alteration of the competitive landscape before the authority can complete its analysis.

19. Legal Test in Simplified Form

The Bundeskartellamt's analysis can be represented as:

Step 1 — Identify conduct

What exactly is the undertaking doing?

Step 2 — Identify competition concern

Does the conduct potentially infringe:

Section 1 GWB?

Section 19 GWB?

Section 20 GWB?

Article 101 TFEU?

Article 102 TFEU?

potentially relevant digital-market provisions?

Step 3 — Establish prima facie case

Is there sufficient preliminary evidence?

Step 4 — Establish urgency

Will delay materially worsen the competitive situation?

Step 5 — Establish irreversibility

Could the competitive damage realistically be repaired later?

Step 6 — Assess proportionality

What is the least intrusive measure capable of preventing the harm?

Step 7 — Limit duration

How long must the measure remain operative?

20. Difference Between Interim Measures and Fines

This distinction is fundamental.

An interim measure is protective, whereas a fine is punitive.

The purpose of an interim measure is not to punish the undertaking for past behaviour.

Instead, it is to prevent continuing or imminent competitive harm.

Therefore, the authority's reasoning should focus heavily on:

future competitive effects;

urgency;

irreversibility;

proportionality.

21. Advantages

Interim measures offer several important advantages.

1. Prevention rather than repair

They can stop harm before it becomes entrenched.

2. Protection of innovation

They can preserve emerging competitors.

3. Protection of digital competition

They are particularly useful where network effects accelerate market tipping.

4. Preservation of market structure

They prevent investigations from becoming ineffective because the market has already changed.

5. Faster enforcement

They can address urgent competitive problems without waiting for completion of the entire infringement proceeding.

22. Risks and Legal Constraints

Interim measures also present risks.

Premature intervention

The authority might intervene before the economic evidence is fully developed.

False positives

An apparently exclusionary practice may ultimately have legitimate efficiency explanations.

Administrative overreach

An excessively broad interim measure could effectively regulate an undertaking before infringement is established.

Innovation risks

Technology companies may reduce experimentation if uncertain practices can immediately trigger intervention.

Procedural fairness

Because interim measures can have substantial commercial effects, procedural safeguards remain important.

23. Overall Legal Significance

The importance of interim measures by the Bundeskartellamt lies in a fundamental feature of modern competition law:

A competition authority cannot always wait for a final judgment if the market it is trying to protect may disappear before the judgment arrives.

This is particularly true in markets characterized by:

network effects;

data accumulation;

switching costs;

ecosystem dependence;

rapid technological development;

platform concentration;

AI feedback loops.

Section 32a GWB therefore functions as a market-preservation mechanism.

The most important conceptual formula is:

Prima facie infringement + urgency + risk of serious and irreparable competitive harm + proportionality = potential interim intervention.

Key Case-Law Takeaways

Conclusion

Interim measures by the Bundeskartellamt represent an exceptional but increasingly significant enforcement mechanism under German competition law. Their central purpose is not to determine the entire case prematurely, but to preserve effective competition until the authority can reach a final determination.

Their importance is greatest where competitive harm is cumulative and irreversible—particularly in digital platforms, data-driven markets, AI ecosystems, network industries and markets characterized by strong switching costs. The German approach therefore reflects a broader evolution of competition enforcement from merely compensating for completed harm toward preventing market structures from becoming irreversibly anti-competitive in the first place.