EU antitrust procedure

Investigation process

The European Commission (Commission) investigates evidence or allegations of anti-competitive behaviour contrary to Articles 101 or 102 TFEU by companies that has an impact in more than one EU country.

Investigations can generally start in one of four ways:

  1. a party involved in any wrongdoing blowing the whistle

  2. a complaint from a third party

  3. the Commission receiving general market intelligence suggesting a breach of competition law, and

  4. the Commission discovering alleged breaches of competition law during a sector inquiry

The European Commission (the Commission) has broad investigative powers to review suspected anti-competitive conduct. Among others, the Commission has the power to conduct unannounced inspections at the premises of any undertaking located in the EEA. See Practice Note: European Commission’s powers of inspection (dawn raids).

Investigations follow a set process and ensure companies under investigation have the opportunity to defend themselves. See Practice Note: Rights of defence in European Commission competition proceedings. Investigations can take several years to complete.

For detailed information on the investigation process, see Practice Note: EU investigation process. For a flowchart setting

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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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