European Union: Cartels and Leniency

• case law developments on dawn raids and fine calculations;

• the European Court of Justice (CJEU)’s approval of the extradition of an individual guilty of a cartel infringement in Romano Pisciotti;³ and

• policy developments regarding the relationship between data protection and antitrust regulation.

Implementing the Damages Directive: an update

Since June 2017, four additional EU member states at the time of writing have implemented the Damages Directive: Croatia, Cyprus, Malta and Latvia. As of early March 2018, implementation of the Directive was still pending in only Greece and Portugal, with the Commission pursuing these states for a failure to implement. In addition, at the time of writing the Commission is continuing to review whether Bulgaria’s legislative changes implementing the Directive are sufficient, but has closed its previously instituted proceedings against 18 member states for delay in implementation, following confirmation that the Directive has now been validly implemented in such states.⁴

In addition to the above practical developments, there have been two key updates at the court level related to the Damages Directive. The first is the preliminary request from Portugal querying the interpretation of the Directive, in Cogeco Communications⁵ filed with the CJEU in December 2017. The request relates to a damages claim brought in February 2015 against premium sports TV channels for abuses of dominance, which the defendants allege was raised after expiry of the applicable limitation period. The referring court has therefore asked for clarification on whether the rules in the Damages Directive related to limitation periods and the effect of decisions by national competition authorities are applicable to the case, given that:

• Portugal has not yet implemented the Directive; and

• the damages claim was filed prior to expiry of the implementation deadline for such Directive.

This is the first preliminary request related to the Damages Directive, and will be instructive as to the scope of its applicability to conduct taking place prior to its implementation by member states.

In addition, a further pending preliminary request from the Finnish courts⁶ may shed more light on the applicability of the Damages Directive, even though it is not directly related to its scope or interpretation. The reference relates to the establishment of liability for the parent entities of those directly involved in a cartel infringement when it comes to private damages claims, given closure of the business units directly involved in the infringement. In other words, the court seeks guidance on whether such liability can also be imposed in the context of damages claims and, if so, whether it should be established under national laws or EU competition rules. The outcome in this case will therefore also be key to determining the scope of applicability of the Damages Directive in future, particularly when it comes to cartel participants whose directly involved subsidiaries are no longer in existence by the time a private damages claim is brought.

There have also been developments in evidence disclosure in follow-on proceedings in the United Kingdom, a jurisdiction traditionally regarded as a prime private damages claims location due to the breadth of its permitted disclosures. The UK High Court in December 2017, for example, ordered DAF Trucks (addressee to the Commission’s Trucks settlement decision)⁷ to disclose information from the Commission’s case file both in relation to DAF Trucks itself and other participants. This was ordered to be disclosed into a confidentiality ring, and redacted for privilege, confidentiality and leniency material. Detailed disclosure discussions were also held between the parties to a cartel damages claim relating to the Commission’s Power Cables decision⁸ (BritNed and ABB),⁹ as well as in UK proceedings between Servier and the UK government¹⁰ as regards damages claims following the Commission’s Perindopril decision.¹¹ These proceedings together indicate that the scope of disclosure will continue to be a source of contention in private damages claims.

The future for damages actions: collective damages claims

The Damages Directive did not cover collective damages claims; however, in April 2018, the Commission proposed introducing a new scheme which allows qualified entities (non-profit consumer organisations monitored by a public authority and meeting specific eligibility criteria) to launch representative collective-redress actions on behalf of consumer groups across all EU member states. Such actions could be raised for compensation, replacement, repair or otherwise, in relation to large scale consumer scandals such as Dieselgate. This was proposed as part of the Commission’s broader consumer protection initiative, aimed at:

• strengthening consumer rights online (in particular, through enhancing transparency);

• giving consumers tools to enforce their rights and obtain compensation;

• introducing effective penalties for breaches of consumer law and strengthening related sanctioning powers of national authorities;

• tackling dual quality of consumer products; and

• developing improved operating conditions for businesses.

Although the proposal has been welcomed by multiple consumer groups, there have been some calls for it to be wider in scope. The proposal also does not specifically relate to the question of competition law enforcement – commissioner Vestager herself has suggested that the scheme would not necessarily integrate competition law breaches or include protection mechanisms for victims of cartel infringements. However, the specific approach is yet to be confirmed, particularly whether, in any case, collective claims for competition breaches will be encouraged as a result.

Case law and decisional developments in settlement

Within the last year, the Commission has adopted four settlement decisions, taking the total number to 28 as of May 2018.¹² This shows that the settlement procedure continues to form a key part of the Commission’s enforcement action against cartels. At the court level, the General Court’s judgment in Icap in November 2017¹³ has shed new light on the Commission’s operation of the settlement procedure going forward including in hybrid cases. Related pending court appeals are also likely to be instructive on this point.

In Icap, an interdealer broker and provider of post-trade services was found liable as facilitator of the Japanese Yen (JPY) LIBOR cartel by the Commission in February 2015,¹⁴ by circulating spreadsheets of quotes related to JPY LIBOR rates and providing price and volume information to directly participating banks, as well as other financial institutions and members of the JPY LIBOR panel. This decision, issued under the ordinary contested procedure, followed a settlement decision issued in the same case in December 2013 against five banks and one other broker.¹⁵ In its judgment, the General Court partially annulled the Commission’s decision; whilst one of the six infringements was annulled in its entirety due to the Commission’s failure to produce adequate evidence of Icap’s knowledge of such infringement, and four of the infringements were annulled in part due to a lack of sufficient evidence as to their duration, the fine imposed on Icap was annulled in full due to insufficient reasoning (see further below).

The judgment is instructive on a number of general cartel issues, including confirming:

• the possibility for third-party facilitators to be liable for cartel infringements on markets other than those in which they participate (upholding AC Treuhand);¹⁶

• the evidential standard of proof as regards facilitator infringements, including awareness or reasonable foreseeability of such infringements;¹⁷

• the distinction between single and continuous and single and repeated infringements;¹⁸ and

• the ‘by object’ standard as espoused in Cartes Bancaires¹⁹ – on this point: the court also upheld the position in Dole²⁰ and T-Mobile²¹ that there is no need to establish a causal link between exchanges of pricing information and actual market prices, nor evidence of actual anticompetitive effects on the market due to such exchanges, in order to establish a ‘by object’ infringement.²²

As regards settlement, the court made a key procedural finding which, though limited in terms of practical impact, led to a suggestion to the Commission as regards its operation of hybrid settlement cases (ie, those involving both settling and non-settling parties).

Icap argued that the Commission had breached its presumption of innocence and the principle of good administration by issuing the 2013 settlement decision prior to the contested decision against Icap. The General Court agreed, noting that Icap’s withdrawal from the settlement procedure meant it was not provided with the necessary opportunity to present its views prior to the adoption of the settlement decision in which the Commission had effectively (though not formally) found its involvement in the six infringements in question. However, the practical consequences of such a finding were negligible; despite acknowledging that Icap’s presumption of innocence had been breached, the General Court held that such a finding could not impact the legality of the 2015 contested decision against Icap, given the ‘separate and independent nature’ of the proceedings giving rise to this decision and the 2013 settlement decision.²³

Nonetheless, the General Court arguably reined in the Commission’s approach in hybrid settlements. It suggested that the Commission could not rely solely on the need for efficiency in its settlement procedures when operating a hybrid settlement (by, for example, choosing to refer to the conduct of non-settling parties in settlement decisions in order to establish the liability of settling parties), and noted more generally that the Commission should operate the settlement procedure consistently with the presumption of innocence. In the court’s view, this obligation also applied in hybrid cases where, if the Commission finds that it is unable to determine the liability of settling parties without taking a view on the conduct of non-settling parties, it must take ‘necessary measures’ allowing for the non-settling parties’ presumption of innocence to be upheld – for example, by adopting contested and settlement decisions on the same date.²⁴ The principle of good administration was theoretically (though not on the facts themselves) capable of being infringed on the basis that the Commission’s settlement decision finding could vitiate the contested decision due to the Commission’s lack of objective impartiality, but only where the contested decision would have otherwise differed in content.²⁵

Significantly, the judgment calls into question the Commission’s consistent practice of adopting settlement decisions prior to contested decisions in the same hybrid settlement case (which has happened in all such cases except the first one in Animal Feed Phosphates,²⁶ where the Commission adopted both such decisions on the same date). Whether the Commission will take on the court’s guidance in Icap in its future hybrid settlement cases is yet to be seen. However, further illustration of the court’s views on the Commission’s obligations in this regard will likely arise out of pleas raised by non-settling parties appealing contested decisions in hybrid cases, claiming breaches of the presumption of innocence due to a ‘staggered’ operation of the hybrid settlement procedure (each of which are still pending at the time of writing).²⁷

Leniency: practical, legislative and case law developments

In March 2017, the Commission introduced two mechanisms aimed at encouraging leniency and self-reporting of the involvement of companies in cartel behaviour.

The first was the Commission’s online anonymous whistleblower tool, introduced as a method of improving the Commission’s methods for cartel detection and deterrence. Although formal reports on the tool’s application have not yet been issued, deputy director general for antitrust at the Directorate-General for Competition (DG Comp), Cecilio Madero Villarejo, noted in February 2018 that the team had been positively surprised with the number of inputs from current and former employees of companies participating in cartel infringements through the anonymous tool.

The second of the Commission’s 2017 proposals (namely the draft ECN+ Directive proposed on 22 March 2017 to empower national competition authorities and ensure they have the appropriate competition enforcement tools)²⁸ has continued to progress in the last year. In particular, the European Parliament’s economic affairs committee accepted the proposal in February 2018, member state representatives reportedly approved the proposal at the end of March 2018, and final phase trilateral talks between the Commission, the European Council and the European Parliament to finalise the text of the proposal took place on 17 April and 14 May 2018. The first of these talks reportedly focused on fine impositions and the handling of whistleblowers and the latter reportedly led to common ground being reached on the content of the proposed directive, though with some questions still remaining on the whistleblower and marker programmes given the differences in national approaches. The European Parliament and the Council reached a provisional political agreement on the final wording of the proposal on 30 May 2018, with their formal approval of the final legal text expected by the end of 2018. As a result, the Commission’s originally anticipated timeline of full implementation of the ECN+ Directive by the end of 2019 may be met.

There have also been case law developments on the evidential weight to be attached to leniency statements and the necessary level of corroboration when they are adduced as evidence of infringements in Commission proceedings. This follows the January 2017 CJEU ruling in Keramag Keramische Werke, where the CJEU found that the General Court had incorrectly dismissed certain of the Commission’s evidence on the basis that one leniency statement could not corroborate another. The CJEU on the contrary found that there was no rule in EU law providing that one leniency statement could not corroborate another,²⁹ referring the case back to the General Court for review. The General Court hearing following this took place in February 2018, and focused around the interpretation of leniency statements from two applicants; while the claimants alleged these were insufficient to prove one aspect of the infringement given substantial inconsistencies and therefore the need for a high degree of corroboration, the Commission asserted that the statements in question referred in the same way to a price increase agreed by the participants and therefore were sufficiently precise to be considered as evidence of the infringement. The final judgment will therefore be instructive on the treatment of leniency statements in court proceedings, and the extent to which they require corroboration to allow for an infringement finding.³⁰

Challenging ‘fishing expeditions’ and protecting confidential information: recent developments in dawn raids

There have also been developments at the court level in relation to dawn raids. The first is the October 2017 hearing in České dráhy,³¹ where the Czech Republic’s rail operator claimed the Commission had unlawfully set out on a ‘fishing expedition’ when conducting inspections in April and June 2016, seemingly drawing on the CJEU’s 2015 findings in Deutsche Bahn.³² In the applicant’s view, the Commission’s eventual seizure of multiple phones and around 8,000 pages of documents was an excessively broad exercise of its investigative powers, particularly since the national authority had inspected the applicant in 2012 in relation to at least one overlapping conduct (such conduct was the same in the Commission’s inspection decision as in the Czech case). According to the applicant, the Commission therefore lacked the ability to cast such a wide net in its investigative powers, and failed to provide adequate reasons for its approach in the inspection decision. In response, the Commission argued that the inspection decision necessarily had to be of a wide scope, since the entirety of the applicant’s business strategy had to be investigated to determine the pricing abuse. Although related specifically to an article 102 Treaty on the Functioning of the European Union infringement, the eventual judgment may in any case be instructive on the net of Commission inspection decisions more generally and the applicability of the CJEU’s approach in Deutsche Bahn going forward.

The second key case law development is the April 2018 General Court judgment in Alcogroup and Alcodis,³³ which related to an allegation of the Commission illegally reviewing confidential and legally privileged material during an inspection related to a cartel infringement,³⁴ contrary to a previous agreement between the Commission and the applicant that such documents would not be consulted or would be consulted only in the presence of a lawyer. The breadth of the applicant’s appeal at General Court level, however, and its request to block the Commission’s investigation meant the appeal was rejected as inadmissible; the court confirmed that Alcogroup could sue the Commission for damages if it considered that officials had breached lawyer–client confidentiality rules during the inspection, but clarified that Alcogroup’s allegations could not allow for the Commission’s investigation to be blocked. This highlights that allegations of irregularities in the Commission’s inspection procedures should therefore be limited in terms of their practical request, as a broadening of the case by requiring termination of the investigation is unlikely to be accepted by the courts.

Calculating and explaining cartel fines: recent court judgments

In two recent CJEU judgments, parties’ challenges to the scope of fines for cartel infringements have been rejected. This appears to illustrate the courts’ general support for the Commission’s discretionary approach to setting fines, even when exercised broadly to impose deterrent fine amounts.

The first is Global Steel Wire,³⁵ where the arguments of parties in the same corporate group that they should be treated separately due to a lack of economic integration between them, such that the parent company could not be held liable for the conduct of its subsidiary, were rejected. The second is in Kühne + Nagel International,³⁶ where the CJEU upheld the Commission’s use of an entire product market as the basis for establishing the value of sales, given that such value need not be limited to those sales actually affected by the infringement (but also those indirectly affected). On the facts, the CJEU therefore held that it was acceptable for the General Court to accept the Commission basing its value of sales calculation on the value of sales associated with freight forwarding services provided generally as a package on the trade routes concerned, and not solely the value of sales made in the provision of the specific services forming the infringement.

The General Court in Icap, by contrast, did annul the fines imposed in full due to a lack of sufficient reasoning. The court confirmed that, particularly when relying on its discretion to depart from its fining methodology in line with point 37 of the Fine Guidelines,³⁷ the Commission must provide a detailed explanation of its fine calculation. In particular, it must address the relevance, assessment and weighting of factors considered in its fine calculation (such as gravity, duration and the nature of a party’s involvement). On this basis, a simple ‘general assurance’ that such factors are reflected in the basic fine amount, or generic fining information provided during ‘exploratory and informal’ discussions or outlined by the Commission during the written phase of the General Court proceedings, are insufficient and fail to satisfy the Commission’s reasoning obligations when it comes to the fine. In particular, the Commission was required to specify its reasoning in such a way as to allow:

• Icap to understand the calculation; and

• the court to review the justification for the Commission’s methodology.³⁸

Even though this portion of the judgment has been challenged by the Commission in its appeal of the General Court judgment to the CJEU,³⁹ the judgment nonetheless serves as a reminder of the Commission’s obligation to provide detailed explanations for its fine assessment, despite its underlying discretion. It remains to be seen, however, whether such an approach is limited only to the instances in which the Commission relies on point 37 of its guidelines, and therefore whether this provision in the guidelines imposes a greater explanatory obligation on the Commission.

Cartel infringements and fundamental rights: extradition approval in Pisciotti

Upholding the Advocate-General Opinion issued in November 2017, the CJEU handed down its preliminary ruling in Pisciotti in April 2018, confirming that the German government acted legally when extraditing an Italian citizen to the United States to stand trial for his involvement in the Marine Hose cartel. This, in the CJEU’s view, applied despite Pisciotti’s arguments that he had been discriminated against, on the basis that a German national in the same position would not have been extradited (due to protections in national law where German nationals were prevented from being extradited in the same circumstances – in Pisciotti’s case, from Frankfurt airport to the United States).

In particular, the CJEU found that:

• general principles of non-discrimination and free movement of member state nationals did not deny Germany the ability to treat its own nationals differently from those of other member states and that, more generally, EU member states were not required to extend a prohibition on the extradition of their own citizens to every European citizen in their territory; and

• traditional free movement rules that would otherwise mean Pisciotti’s extradition was illegal could be restricted by the legitimate objective of ensuring foreigners did not escape prosecution (provided such objective could not be attained by less restrictive means).

The only obligation Germany was required to comply with for such finding to be made was to notify the authorities in the home state of Pisciotti (as a citizen subject to an extradition request by a third-party state), of the extradition request in order to give the home state the opportunity to seek surrender of Pisciotti pursuant to a European arrest warrant.⁴⁰ This obligation had been complied with on the facts, meaning Pisciotti’s extradition could be upheld.

The manner in which such ruling will be dealt with by the Berlin Regional Court who referred the question, and the practical impacts of this, remain to be seen. Nonetheless, it appears that the CJEU is generally supportive of extradition for cartel infringements (even to states outside the European Union), provided the measures in question are proportionate and that procedural obligations are complied with. This approach contrasts with the European Union’s more general stance against enforcing criminal penalties on individuals for cartel infringements.

Developments in algorithms and cartel enforcement

Following the Commission’s May 2017 report after its e-commerce sector inquiry⁴¹ and commissioner Vestager’s March 2017 speech in which she highlighted that, while there is no need to be suspicious of everyone using an automated pricing system for example, the Commission should be vigilant as such systems may be used in ways that lead to more effective cartels,⁴² the possibility for algorithms to fall within the scope of the Commission’s future cartel enforcement strategy has been upheld. Director-general for DG Comp, Johannes Laitenberger, clarified in October 2017 that the Commission is still ‘monitoring potential antitrust issues related to algorithms’, warning that companies cannot ‘hide behind’ such algorithms when using them as a means to engage in anticompetitive behaviour. He also stated that the configuration and use by companies of such algorithms could be sufficient to hold them liable for the subsequent illegal behaviour taking place as a result.⁴³ Furthermore, DG Comp policy director Cyril Ritter noted in April 2018 that the phenomenon of automated price-matching is on the Commission’s ‘radar’, and has potentially even been noted in ongoing cases.⁴⁴ In May 2018, commissioner Vestager has also noted that algorithms may even be used as a tool of cartel detection, rather than simply as a subject of cartel enforcement, and therefore as a means to identify companies that use software to fix prices or engage in other abusive pricing conduct.⁴⁵

The June 2017 Commission report emphasising the possibility of algorithms encouraging both vertical and horizontal restrictions discussed at the Organisation for Economic Co-operation and Development (OECD) roundtable on algorithms and collusion later that month⁴⁶ has been followed by a September 2017 OECD report. In this report, the OECD queries whether traditional legal concepts of ‘agreement’ and ‘tacit collusion’ should be revised to capture algorithm-based behaviour.⁴⁷ This, together with the Commission’s establishment in March 2018 of an expert group on artificial intelligence (including a focus on ensuring algorithmic transparency generally, though not specifically in relation to conduct affecting competition),⁴⁸ shows that the relationship between algorithms and cartel enforcement is very much part of the Commission’s key practical concerns for the near future.

New frontiers: antitrust regulation and data privacy

Finally, the recent introduction and practical application of the General Data Protection Regulation⁴⁹ has meant attention has been targeted towards data privacy and accompanying competition law measures. Within the antitrust sphere, the question of privacy as a competition parameter has been applied most recently in the abuse of dominance context, where Germany’s Federal Cartel Office commenced an investigation in December 2017 against Facebook alleging abuse of its market power by making the use of its social network conditional on the unlimited collection of user data from other sources, and subsequent linking of such data to user accounts.

However, there is still potential for privacy to be regarded as a competition parameter that may be harmed by anticompetitive behaviour, including within the cartel context. Ritter, for example, noted in April 2018 that, generally, data could be regarded as an output, input or currency when it comes to competition and that, within the cartel context specifically, competition enforcement actions could be built on anticompetitive agreements related to privacy where such agreements lead to the degradation of privacy and can amount to a ‘cartel on quality’.⁵⁰ The possibility for this going forward, and for data privacy to play a bigger role in competition enforcement more generally (as well as the question of whether such approach blurs the boundaries between competition and privacy regulation), is likely to be a key feature in competition policy developments in the upcoming year.

Notes

¹ Case AT.39824 Trucks, decision of 19 July 2016.

² Directive 2014/104/EU of the European Parliament and of the Council of 26 November 2014 on certain rules governing actions for damages under national law for infringements of the competition law provisions of the member states and of the European Union (Damages Directive).

³ Case C-191/16 P Romano Psciotti v Bundesrepublik Deutschland, judgment of 10 April 2018, EU:C:2018:222 (Pisciotti).

⁴ The 18 member states are: Austria, Belgium, Cyprus, Croatia, the Czech Republic, Estonia, France, Germany, Ireland, Italy, Latvia, Malta, the Netherlands, Poland, Romania, Slovenia, Spain and the United Kingdom.

⁵ Case C-637/17 P Cogeco Communications (pending).

⁶ Case C-724/17 P Skanska Industrial Solutions and Others (pending).

⁷ Case AT.39824 Trucks, decision of 19 July 2016.

⁸ Case AT.39610 Power Cables, decision of 2 April 2014.

⁹ HC-2015-000268 BritNed Development Ltd v ABB AB & Another.

¹⁰ HC-2011-000064 The Secretary of State for Health & Another v Servier Laboratories Ltd & others.

¹¹ Case AT.39612 Perindopril (Servier), decision of 9 July 2014.

¹² See the decisions in Cases AT.39881 Occupant Safety Systems, decision of 22 November 2017; AT.40009 Maritime Car Carriers, decision of 21 February 2018; AT.39920 Braking Systems, decision of 21 February 2018; and AT.40113 Spark Plugs, decision of 21 February 2018.

¹³ Case T-180/15 Icap plc v Commission, judgment of 10 November 2017, EU:T:2017:795 (Icap). Note that the Commission has appealed the judgment to the CJEU, which is pending (discussed further below in relation to fine calculations).

¹⁴ Case AT.39861 Yen Interest Rate Derivatives, decision of 4 February 2015.

¹⁵ Case AT.39861 Yen Interest Rate Derivatives, decision of 4 December 2013.

¹⁶ Case C-194/14 P AC-Treuhand AG v Commission, judgment of 22 October 2015, EU:C:2015:717. See Icap, paragraph 103.

¹⁷ Icap, paragraphs 115 to 116, 130, 139, 142, 145 and 163.

¹⁸ Icap, paragraphs 222 to 224.

¹⁹ Case C-67/13 P CB v Commission, judgment of 11 September 2014, EU:C:2014:2204.

²⁰ Case C-286/13 Dole Food and Dole Fresh Fruit Europe v Commission, judgment of 19 March 2015, EU:C:2015:184.

²¹ Case C-8/08 T-Mobile Netherlands and Others v Commission, judgment of 4 June 2009, EU:C:2009:343.

²² Icap, paragraphs 47 to 57.

²³ Icap, paragraphs 263 and 269.

²⁴ Icap, paragraph 268.

²⁵ Icap, paragraphs 270 to 278.

²⁶ Case AT.38866 Animal Feed Phosphates, decisions of 20 July 2010.

²⁷ See pending Cases: T-105/17 HSBC Holdings and Others v Commission, T-106/17 JPMorgan Chase and Others v Commission and T-113/17 Credit Agricole and Crédit Agricole Corporate and Investment Bank v Commission (all appealing Case AT.39914 Euro Interest Rate Derivatives, decision of 7 December 2016); T-433/16 Pometon v Commission (appealing Case AT.39792 Steel Abrasives, decision of 25 May 2016); and T-799/17 Scania and Others v Commission (appealing Case AT.39824 Trucks, decision of 27 September 2017).

²⁸ Proposal for a directive of the European Parliament and of the Council to empower the competition authorities of the member states to be more effective enforcers and to ensure the proper functioning of the internal market, COM/2017/142 final, available at: http://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52017PC0142&from=EN.

²⁹ Case C-613/13 P Commission v Keramag Keramische Werke GmbH and Others, Judgment of 26 January 2017, EU:C:2017:49.

³⁰ Joined Cases T-379/10 RENV and T-381/10 RENV, Keramag Keramische Werke GmbH and Sanitec Europe Oy v Commission (pending). See also paragraphs 15 and 19 of the hearing report published on 27 February 2018.

³¹ Joined Cases T-325/16 and T-621/16 Cˇeské dráhy v Commission (pending).

³² Case C-583/13 P Deutsche Bahn AG and Others v Commission and Others, judgment of 18 June 2015, EU:C:2015:404.

³³ Case T-274/15 Alcogroup and Alcodis v Commission, judgment of 10 April 2018, EU:T:2018:179.

³⁴ The documentary evidence that would be considered to fall within this category of material was outlined in Case C-550/07 P Akzo Nobel Chemicals Ltd and Another v Commission, judgment of 14 September 2010, EU:C:2010:512.

³⁵ Joined Cases C-454/16 P to C-456/16 P and C-458/16 P Global Steel Wire SA and Others v Commission, judgment of 26 October 2017, EU:C:2017:818.

³⁶ Case C-261/16 P Kühne + Nagel International AG and Others v Commission, judgment of 1 February 2018, EU:C:2018:56. See also related judgments handed down on the same date in Cases: C-264/16 P Deutsche Bahn AG and Others v Commission, EU:C:2018:60; C-263/16 P Schenker Ltd v Commission, EU:C:2018:58; and C-271/16 P Panalpina World Transport (Holding) and Others v Commission, EU:C:2018:59

³⁷ OJ C 210, 1.09.2006, pp 2–5.

³⁸ Icap, paragraphs 289 to 296.

³⁹ Case C-39/18 P Commission v Icap and Others (pending).

⁴⁰ Pisciotti, paragraphs 43 to 56.

⁴¹ See the Final Report on the e-commerce sector inquiry, adopted by the Commission on 10 May 2017, available at: http://ec.europa.eu/competition/antitrust/sector_inquiry_final_report_en.pdf.

⁴² See commissioner Vestager’s speech of 16 March 2017, available at: https://ec.europa.eu/commission/commissioners/2014-2019/vestager/announcements/bundeskartellamt-18th-conference-competition-berlin-16-march-2017_en.

⁴³ See Johannes Laitenberger’s speech of 19 October 2017, available at: http://ec.europa.eu/competition/speeches/text/sp2017_18_en.pdf.

⁴⁴ See Ritter’s views at the American Bar Association Antitrust Law 2018 Spring Meeting (Washington, DC), reported by MLex on 11 April 2018.

⁴⁵ See commissioner Vestager’s comments at a conference by the Belgian Competition Authority, reported by Reuters on 4 May 2018.

⁴⁶ See the report dated 14 June 2017 and entitled ‘Algorithms and Collusion – Note from the European Union’ submitted to the Organisation for Economic Co-operation and Development, available at: www.oecd.org/officialdocuments/publicdisplaydocumentpdf/?cote=DAF/COMP/WD(2017)12&docLanguage=En.

⁴⁷ OECD (2017), Algorithms and Collusion: Competition Policy in the Digital Age, available at: www.oecd.org/competition/algorithms-collusion-competition-policy-in-the-digital-age.htm.

⁴⁸ See the Commission’s press release on ‘A European approach for Artificial Intelligence, the way forward – Questions and Answers’ available at: https://ec.europa.eu/digital-single-market/en/news/european-approach-artificial-intelligence-way-forward-questions-and-answers.

⁴⁹ Regulation 2016/679.

⁵⁰ See Ritter’s views at the American Bar Association Antitrust Law 2018 Spring Meeting (Washington, DC), reported by GCR on 12 April 2018.