EU antitrust - Article 101 TFEU

Article 101(1) TFEU prohibits agreements and concerted practices between two or more undertakings (or associations of undertakings) which may affect trade between EU Member States and which have as their object or effect the prevention, restriction or distortion of competition within the internal market. In particular, the Article 101(1) TFEU prohibition focuses on arrangements which:

  1. directly or indirectly fix purchase or selling prices or any other trading conditions

  2. limit or control production, markets, technical development or investment

  3. share markets or sources of supply

  4. apply dissimilar conditions to equivalent transactions with other trading parties, thereby placing them at a competitive disadvantage, or

  5. make the conclusion of contracts subject to tie-in of supplementary obligations unconnected with the subject matter of the contract

See Practice Note: Article 101(1) TFEU—the prohibition on restrictive agreements.

Where an agreement is determined by the Commission, national competition authorities (NCAs) or courts to have a restrictive ‘object’ or shown to produce appreciably restrictive effects within the meaning of Article 101(1) TFEU, the agreement will be illegal under Article 101(2) TFEU unless the contracting parties can

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Automated decision-making and DSARs: right to access means a right to explainability (CK v Magistrat Der Stadt Wiendun & Bradstreet Austria GMBH)

Information Law analysis: The Court of Justice provided several clarifications around the scope of data subject access requests (DSARs) in the context of automated decision-making. The court held the determining factor for whether information constitutes ‘meaningful information about the logic involved’ under Article 15(1)(h) of the EU’s General Data Protection Regulation, Regulation (EU) 2016/679 (EU GDPR) is whether the information enables the data subject to understand the logic involved in automated decision-making involving their personal data. The court also held disclosure by controllers should be underpinned by the principles of transparency, which requires information to be clear, accessible and intelligible, both in terms of content and form, from the perspective of data subjects. In the context of automated decision-making this doesn’t necessarily mean providing the exact algorithm, if it doesn’t help the data subject’s understanding of the ‘how’. The court confirmed DSARs do not mandate the disclosure of trade secrets, but this can only be decided by the relevant supervisory authority or competent court, after assessing all relevant information provided to them by a controller. The protection of trade secrets cannot be used as a blanket excuse by businesses to withhold certain information from individuals making a request under Article 15(1)(h) of the EU GDPR. Written by Marija Nonkovic, associate at Kemp IT Law LLP.

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