Article 106(1) TFEU ready for duty again; the CJEU’s judgment in the DEI case

Jose Manuel Panero Rivas
MA in Economics for Competition Law, King’s College London, LL.M in European Law, College of Europe, Bruges

On 17 July 2014 the Court of Justice (CJEU) delivered its much awaited judgment in the DEI case.[1] This was a very important case for the future of Article 106(1) TFEU, and the CJEU’s judgment certainly met expectations.

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Commission Proposal for a Directive on actions for damages revealed – tout pour le peuple, rien par le peuple?*

Jose Manuel Panero Rivas

MA and PGD in Economics for Competition Law, King’s College London; LL.M in European Law, College of Europe

 

On 11 June 2013, the Commission issued its much expected[1] Proposal for a Directive concerning damages claims by victims of antitrust violations (‘the Proposal’).[2] This post aims to examine what the Commission has finally done in an area in which it has never felt too comfortable. The obvious reason for this is that, contrary to what happens with the vast majority of its legislative proposals, depending on its content the Directive could have a potentially detrimental impact on the crown jewel: public enforcement by the Commission of EU competition Rules.[3]

This is a controverted area of EU competition law. Therefore, rather than aseptically describe what the content of the Proposal is, this post rather begins with an explanation of several elements the Commission considered when drafting the Proposal. This will be followed by a description of the solution retained by this institution.

A final word of caution in this introduction: this is a long-waited and matured legislative proposal. However, it is still for the Council and the Parliament to intervene in the legislative procedure. At this stage it is still unclear if amendments will be introduced by any of the two institutions. Nevertheless, what is already known is that some Member States have distinguished themselves by putting spokes in the wheels of this project, in a perceived defence of ‘their’ large corporations potentially exposed to this kind of actions – although one may think they should also consider the interests of, at least domestic, consumers.

 

(i)                 Some background elements for understanding the Proposal

It is worth recalling that the right of compensation for parties suffering the consequences of infringements of EU competition rules is well established in the case law of the Court of Justice of the European Union (‘CJEU’).[4] Nevertheless, absent any EU rule governing this type of actions, it has been for the legal systems of the Member States to lay down detailed rules governing these claims. The limits of this autonomy were identified by the Court when proclaiming the principle of effectiveness (the national rules should not make the exercise of the rights excessively difficult or practically impossible) and the principle of equivalence (the rules may not be less favourable than those governing damages actions for breaches of similar rights conferred by domestic law).[5]

However, the Commission has always been reluctant to introduce US-type actions for damages in the toolbox of competition law enforcement mechanisms.[6] It is no secret that the star tool for the Commission with regard to its fight against cartels is its leniency programme. However, the incentives for an undertaking to apply for leniency (thereby escaping without a fine a prisoner’s dilemma-type situation) could be drastically reduced if the applicant could be subject to follow-on actions for damages by affected.[7] This incentive could be further reduced if the documents which the leniency applicant provided to the Commission could subsequently be requested by a national court, as is now permitted in accordance with the Pfleiderer case law,[8] in order to prove the existence of an infringement. In other words: one might expect that if actions for damages were to be made available to affected parties by a participant in a cartel which applies for leniency – as the principle of compensation of the harm suffered would require – then less applications for leniency would be made. Also companies would perceive less pressure to apply for leniency as they might consider that other undertakings would also be less likely to reveal the existence of the practice.

Determining what the actual damage suffered by a customer of those practices infringing antitrust rules is another essential element of actions for damages, but it is not an easy task.[9] One reason for that is that some of the overcharges incurred could have been passed on to final consumers or other downstream actors in the supply chain. However, it is not uncommon that those indirect purchasers could face procedural hurdles for claiming compensation from the damage they actually suffered. It is also worth noting that the actual damage for some types of antitrust infringements are far from being evident, consider for instance certain infringements of Article 102 TFEU or even infringements of Article 101 TFEU which, despite being classified as infringements “by object”, do not have an actual impact on prices or output.[10]

 

(ii)               Main elements of the Proposal

Bearing in mind the above, the Commission issued its Proposal, which contains the following key elements:

  1. It contains the principle of full compensation. In Article 2, the Proposal states that ‘full compensation shall place anyone who has suffered harm in the position in which that person would have been, had the infringement not been committed. It shall therefore include compensation for actual loss and for loss of profit, and payment of interest from the time the harm occurred until the compensation in respect of that has actually been paid’.
  2. In Article 5, the Proposal establishes the rules on disclosure of evidence, which should allow affected parties to obtain the necessary evidence for presenting their case to a court when the claimant presents reasonably available facts and evidence showing plausible grounds for suspecting it has suffered harm from an infringement of antitrust rules. However, Article 6 offers absolute protection to leniency and settlement applications (for both leniency corporate statements and settlement submissions), also limiting access to other kind of documents needed for the purposes of public enforcement of competition rules.
  3. In Article 11, the Proposal establishes the joint and several liability of participants in collective infringements of competition rules (typically cartels). However, this Article makes an exception for leniency applicants having received immunity, which could only be forced to compensate damages caused by other participants in the infringement after the injured parties have shown they are unable to obtain full compensation from the other undertakings involved in the prohibited practice.
  4. The Proposal expressly recognises the possibility for infringing undertakings to invoke a passing-on defence (Article 12.1 of the Proposal) except in those cases in which it is legally impossible for indirect purchasers to claim compensation for their harm (Article 12.2 of the Proposal). However, this also establishes that indirect affected parties (those suffering harm because of the passing-on of the extra costs) should have at their disposal effective mechanisms of redress (Article 13 of the Proposal).
  5. On quantification of harm, Article 16 establishes the rebuttable presumption that, in case of cartel infringements, it shall be presumed that the infringement caused harm.

 

(iii)             A foreseeable long and winding road until its adoption

The Proposal is now in the hands of the Parliament and the Council. Although the Proposal is a mature piece of legislation, the first reactions of these two institutions suggest that the Proposal is not likely to remain untouched in its final wording and that it will face a rocky ride in the course of the ordinary legislative procedure.

First reactions from various different actors within the Parliament suggest inter alia that (i) collective redress mechanisms should be part of the proposal; (ii) there should be changes in the rules concerning discovery of evidence (with contradictory views with regards to the direction in which the change should go); and (iii) limitation periods – five years in the wording of the Proposal – should be shortened. However, the final vote on the issue is scheduled for 5 December 2013.[11]

At its turn, the Council seems to seek a tightened of disclosure rules, and also a shortening of the limitation period (to three years). It also seems to water down the possible fines a national court could impose to defendants in case they refuse to comply with disclosure orders or destroy evidence (provided by Article 8 of the Proposal).[12]

Apparently, the Council is even contesting the legal basis used by the Commission. The Proposal has used a dual legal basis, namely Articles 103 and 114 TFEU. However, it seems that the Council – against the opinion of the Commission – is trying to avoid the use of Article 114 TFEU. In practical terms, this would mean depriving the Parliament from exercising effective legislative powers with regards to the Proposal.[13]

 

(iv)              Conclusion

The Proposal shows a complex equilibrium. The Commission has tried to genuinely foster actions for damages in the antitrust field while at the same time avoiding undermining a key element of its public enforcement of antitrust rules as is its successful leniency policy.

It is not for this post to determine if the Commission has been too zealous in its protection of public enforcement of competition rules or not.  It is neither for this author to consider if, given the direct impact of the issue on a key competence of the Commission, this institution is the most appropriate actor to issue the Proposal (although, in any event, no other possible actor could have started the legislative procedure). However, the first reactions from the Council seem to point out that Member States would like an even less litigation-friendly environment than the one envisaged by the Proposal. At its turn, voices in the Parliament are claiming for the introduction of collective redress mechanisms. It is worth recalling that the Proposal enters into a field (actions for damages) in which there are significant divergences between Member States. It is possible that its content (for instance with regard to joint and several liability or passing-on defence) could potentially shock well-established principles of civil or commercial statutes or judicial practices in certain Member States.

The final Directive would be a major piece of legislation for EU antitrust policy. Because of the compensation to be awarded under it, it is also of vital importance for undertakings and consumers. Finally this is likely to have an impact on general EU law concerning judicial procedures in Member States. Time will tell what the final result is and if the Directive has the ability to close the gap between antitrust and civil and commercial law rules in several Member States, which may have the impression that competition rules are from Venus while tort liability is from Mars.

 

*’Everything for the people, nothing by the people’. As the learned readers of this blog know, this motto corresponds to the age of Enlightened absolutism having been attributed to some of the European kings of the 18th century.


[1] Precedent works from the Commission in the field include (1) the European Commission, White Paper on Damages Actions for Breach of the EC Antitrust Rules, COM (2008) 165; and (2) the Commission Staff Working Paper Accompanying the White Paper on Damages Actions for Breach of the EC Antitrust Rules, SEC (2008) 404.

[2] Proposal for a Directive of the European Parliament and of the Council 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, COM(2013) 404, 11.6.2013. But the Proposal does not come alone. The documents issued by the Commission on 11 June 2013 are the following: (i) Proposal for a Directive of the European Parliament and of the Council 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, COM(2013) 404, 11.6.2013 (‘the Proposal’); (ii) Communication from the Commission on quantifying harm in actions for damages based on breaches of Article 101 or 102 of the Treaty on the Functioning of the European Union, C(2013) 3440, 11.6.2013 (‘the Communication’); (iii) Commission Staff Working Document – Practical Guide on Quantifying Harm in Actions for damages based on breaches of Article 101 or 102 of the Treaty on the Functioning of the European Union, SWD(2013) 205, 11.6.2013 (‘the SWD’); (iv) the Impact Assessment Report, SWD(2013) 203 final, 11.6.2013 (the ‘RIA’); (v) Executive Summary of the Impact Assessment Report, SWD(2013) 204 final, 11.6.2013; (vi) a Frequently Asked Questions document; and (vii) a Citizens summary.

[3]  See W.P.J.Wils, “Should Private Antitrust Enforcement be Encouraged?” in W.P.J. Wils, Principles of European Antitrust Enforcement, 2005 pp.111-127.

[4] See Case C-453/99 Courage and Crehan [2001] ECR I-6297; Joined Cases C-295 to298/04 Manfredi [2006] ECR I-6619; and Case C-360/09 Pfleiderer [2011] ECR I-5161.

[5] See Case C-453/99 Courage and Crehan [2001] ECR I-6297; and Joined Cases C-295 to 298/04 Manfredi [2006] ECR I-6619.

[6] Section 4 of the Clayton Act empowers private parties injured by violations of the Act to sue for treble  damages. For a comparison of several aspects of both systems (including the role played in the US by actions for damages and the interface between the different tools) see J. Panero Rivas Criminalisation of EU Competition Law enforcement: the long and winding road in Derecho de la Competencia Europeo y Español, vol  Dykinson Vol XI, 2013, pp. 139-185.

[7] Nonetheless, it is worth noting that those parties, independently from subsequent decisions of the participant in the cartel, have effectively suffered the harm.

[8] Case C-360/09 Pleiderer [2011] ECR I-5161. In that case, the CJEU stated that, in absence of EU Law, it is for the national court to decide on the basis of national law and on a case-by-case basis whether to allow the disclosure of documents, including leniency documents.

[9] On that issue see S. Bishop and M. Walker, The Economics of EC Competition Law: Concepts, Application and Measurement, Sweet & Maxwell, 2010, pp. 699 to 721.

[10] A good example could be information sharing practices that are traditionally considered infringements of Article 101 TFEU by object but whose impact on prices in not evident.

[11] MLex Lawmakers face scrap over ‘group claims’ in damages law, 17 October 2013.

[12] MLex EU States may seek tighter disclosure rules in draft damages law. 10 October 2013. For the initial position of the different Member States see MLex EU Governments size up draft damages claims-law, 3 September 2013.

[13] MLex Legal advice casts doubt on EU damage-claim law, 31 October 2013.

 

Competition Policy, Globalisation & The International Competition Network: A comment to Almunia’s speech at the twelfth annual conference of the International Competition Network

Robert Miklós Babirad

J.D. Masters Diploma candidate in EU Law, King’s College London; Post Graduate Diploma in EU Law (Merit); Member of the New York Bar

 

1          Introduction

On April 24, 2013, Mr Joaquín Almunia, Vice President of the European Commission responsible for Competition Policy delivered a speech entitled “The Evolutionary Pressure of Globalisation on Competition Control”[1] at the twelfth annual conference of the International Competition Network (ICN) in Warsaw, Poland.  Mr. Almunia’s speech reflects his view of the International Competition Network’s critical role in fostering open global markets, promoting the exchange of information between competition agencies worldwide and establishing greater convergence with regard to global competition practices.[2]

Although the speech calls for greater convergence and open markets, there is a failure to sufficiently evaluate underlying national policy concerns, which have led to what Mr. Almunia views as national “trade barriers” and “misguided regulations.”[3]  The speech does not effectively demonstrate that his views with regard to global competition practices will sufficiently address difficulties concerning convergence, existing practices, and the disclosure of information on a global level in competition cases.

The term “policy” is used in this article to refer to a potentially diverse array of external objectives that may need to be reflected in any consideration regarding disclosure and its prospective limits with regard to competition cases by global competition authorities.  Policy may embody broad “non-economic objectives” and their consideration may be necessitated in applying the competition rules as has been suggested by Dr. Townley.[4]  The concept of policy could also be directly related to objectives similar to those suggested under the Treaty such as providing for “an area of freedom, security and justice without internal frontiers,” protecting the environment, and the encouraging of development that is of a sustainable nature.[5]  Policy concerns may also reflect, but are not limited to the protection afforded to certain interests from disclosure under the Transparency Regulation such as those of a commercial nature, the “privacy and integrity of the individual,” relations between countries, and concerns relating to national defence.[6]

This article will begin by briefly discussing the role of the International Competition Network.  Changes to competition policy will then be presented, particularly with regard to globalisation.  The challenges presently being faced by the ICN and both EU as well as global competition agencies will then be addressed and evaluated as well as Mr. Almunia’s position with regard to the best practices for global competition. The article will conclude by suggesting that it may be difficult to refer to national “obstacles,” “practical gaps” and regulations as “misguided” or flawed without a more critical evaluation of existing practices and concerns involving competition related objectives both within the EU and abroad, particularly if better compromises and more effective global competition practices are to be subsequently formulated.[7]

 

2          The International Competition Network

Mr. Almunia’s speech calls for continued investment and a renewal of commitment with regard to the International Competition Network.[8]  The ICN operates as a network of an informal nature with the objective of promoting the enforcement of antitrust on a global scale in order to increase effectiveness as well as efficiency with regard to businesses as well as consumers.[9]  The focus of the ICN is concentrated upon competition law and has established frameworks for analysis, tools relating to “best practices” with regard to competition, and various recommendations that have been put forth to enhance cooperation between competition agencies from differing jurisdictions.[10]  The ICN has the objective of enhancing convergence as well as cooperation when necessary, and minimising the danger of enforcement that is less than optimal as well as outcomes that are inconsistent with regard to competition.[11]

Mr. Almunia refers to the guidance provided by the ICN as “very useful” and its success as representative of the expanding relevance on a global scale of competition law’s enforcement.[12]  It is noted that the enforcement of competition law must also be cognisant of the challenges presently being encountered by the world’s societies and economies.[13]  However, the speech does not sufficiently provide instructive guidance as to how competition law enforcement may be implemented in a manner that demonstrates that it is effectively cognisant of and responsive to these challenges.  The speech notes that the ICN is closely connected with globalisation in that its objective in being created was to foster a spirit of cooperation between various global competition agencies, which would also encompass those agencies from developing and emerging nations.[14]  Encouraging cooperation between the world’s competition agencies is a positive objective of the ICN and its recognition by Mr. Almunia’s speech is instructive.

 

3          Changes to Competition Policy

Changes to the instruments and priorities of competition policy are noted and particularly that of a growth in liberalisation, expansion of the service industry, network industry privatisation, changes in technology, growth of the digital economy and a critical impact on traditional industry, because of the growing importance of climate change as well as the development of strategies to counteract its effects.[15]  However, the change of greatest importance in Mr. Almunia’s view is that of a global expansion of integration with regard to economics.[16]

Mr. Almunia notes that globalisation’s greatest effect may be seen with regard to critical, new economic players on the global level.[17]  An important point is made with regard to the close links now present between “new trading partners and competitors” as well as concerning the shared interests and investments resulting from this global economic interaction.[18]  The speech notes that a benefit of globalisation has been more affordable goods in the global marketplace as well as the extrication of millions of individuals from poverty.[19]  It is also stated that an increase in global trade has developed international cooperation, confidence and the expansion of growth.[20]  These positive attributes of globalisation are importantly noted.  However, it is not clarified as to how globalisation’s positive attributes may be reconciled with those which are negative in a manner that would enable it to be effectively used as a tool in the eventual resolution of the global financial crisis.

 

4          Challenges

Mr. Almunia does acknowledge that globalisation has brought difficulties and challenges, and suggests that an evaluation of both its positive and negative aspects should occur.[21]  However, he fails to engage in this sort of balanced evaluation in his speech.  An important statement is made in suggesting that the European Union reflects an effort at globalisation’s management and is “the only workable experiment in regional integration.”[22]  In Mr. Almunia’s view, the European Union has itself become a project, which amongst its various other objectives and goals, also embodies that of globalisation’s management, but there is a lack of elaboration upon this theory in the speech.[23]  Additionally, he suggests that the ICN is also demonstrative of this effort being directed at globalisation’s management.[24]

It is acknowledged that an increasing amount of competition cases concern undertakings, which are conducting business on a global level.[25]  It is therefore suggested that greater exchanges on a multilateral and bilateral level must occur for the facilitating of competition control under conditions that are optimal.[26]  Exchanging information regarding competition on a global level becomes increasingly important under these conditions, but concerns regarding the scope of disclosure, degree of convergence, and relevant policy considerations, which will be inherently different based upon the competition agency at issue, fail to be sufficiently accounted for or assessed.  It is suggested that international competition agencies must continue to work together and effectively exchange information.[27]  However, international competition agencies have had difficulties with regard to information of a confidential nature being exchanged where signed waivers are unavailable. [28]  Additionally, restrictions or the exemption of particular agencies may be present even where a signed waiver is available.[29]

Another obstacle to the exchange of information between global competition authorities cited is that of “blocking statutes.”[30]  These statutes require national undertakings to secure approval prior to responding to the requesting of information by foreign competition agencies.[31] Additionally, in some situations national law also prohibits a voluntary response by these undertakings.[32]  Mr. Almunia calls for continued efforts in improving confidential information being exchanged between global competition authorities, but does not discuss the necessary protection or confidentiality, which must also be afforded and subsequently balanced against any interest in disclosure.  It is stated that the ICN has a critical position in overcoming these obstacles to what are in Mr. Almunia’s view, better global competition practices.[33]  The speech advocates the importance of “open markets, vibrant competition, and a global level playing field,” but this view may not be an accurate representation of the present situation nor actual practices either within the EU or abroad.[34]

Under the EU’s competition system, “obstacles” are also present that would prevent disclosure and convergence with regard to other global competition authorities as well as within the EU itself, differing from the position otherwise advocated by Mr. Almunia’s speech.  Article 339 TFEU provides an example by prohibiting Union officials from releasing information, which is found to be protected by “the obligation of professional secrecy” and particularly “information about undertakings, their business relations or their cost components.”  Under the Transparency Regulation, the EU’s institutions may refuse to release documents in competition related matters where disclosure would hinder the protecting of “the public interest” or the “privacy and the integrity of the individual.”[35]  Additionally, refusal of access to documents may occur where the “commercial interests of a natural or legal person, including intellectual property” may be endangered.[36]

Access to documents concerning competition cases continues to be a source of difficulty within the EU, although this is not acknowledged in Mr. Almunia’s speech.  An example is that of EnBW Energie Baden-Württemberg AG, a company impacted by the prohibited anti-competitive conduct of a cartel, which sought access under the Transparency Regulation to Commission documents relating to the cartel’s activities.[37]  Access to the documents was refused by the Commission under the Transparency Regulation’s exceptions permitting non-disclosure.[38]  One of the grounds on which the General Court annulled the Commission’s decision denying access, was due to a failure by the Commission regarding its duty to “undertake a concrete, individual examination of the documents covered by the request” in applying the Transparency Regulation’s exceptions permitting non-disclosure.[39]  The case is presently being appealed,[40] which reflects the continuing difficulties still present with regard to interpreting the scope and limits of information disclosure even under the EU’s competition system.

The Court of Justice of the European Union (CJEU) also held in Pfleiderer AG v Bundeskartellamt[41] that an individual “adversely affected by an infringement of European Competition law and is seeking to obtain damages from being granted access to documents relating to a leniency procedure involving the perpetrator of that infringement” will not be prevented from doing so under Regulation 1/2003 or the EU’s law with regard to cartels.[42]  However, ambiguity is also created by the Court’s judgment with regard to accessing this information, because the individual EU Member State tribunals and courts will be the arbiters of this access and deciding based upon each Member State’s respective national law, “the conditions under which such access must be permitted or refused by weighing the interests protected by European Union law.”[43]

It is also interesting to note the statement of Alexander Italianer, Director-General for Competition in a letter to a New York Court regarding the Air Cargo Antitrust Litigation, which opposes the view of openness and convergence suggested by Mr. Almunia’s speech.  Mr. Italianer has stated that permitting US discovery proceedings to access “documents that are strictly confidential under European competition law” would have the result of being “highly detrimental to the sovereign interests and public policies of the European Union” and consequently “substantially undermine the Commission’s ability to detect and punish unlawful cartel activity in the European Union.”[44]

Additionally, in a U.S. proceeding relating to investigations performed by EU competition authorities, a motion to compel discovery of European competition related documents was denied in favor of the Commission’s position, which had argued for the documents at issue to be non-discoverable in U.S. litigation proceedings, confidential and protected by the doctrine of international comity.[45]  It is subsequently difficult to argue that clarity and convergence with regard to the disclosure of information relating to competition cases is presently or likely to become a reality in the near future either within the EU or abroad.

Mr. Almunia states that restrictions on competition are not the answer to resolving the crisis, but rather that there are “other ways to bring relief to households and firms.”[46]  However, this point is not sufficiently elaborated upon.  The speech concludes by advocating that global competition agencies must “unleash the power of the markets,” particularly during these times of economic difficulty.[47]  However, current practices reflect a very different view, which reflects ambiguity and the presence of various restrictions with regard to cooperation and the disclosure of information in competition cases, both within the EU and abroad.

 

5          Conclusion

Unfortunately, Mr. Almunia’s speech fails to adequately address existing practices regarding a failure to disclose information and a lack of convergence concerning competition cases by both EU and global competition authorities.  Additionally, the speech does not effectively assess how these issues may be resolved more effectively within the framework of the ICN.  Additionally, the negative implications of globalisation are not sufficiently presented nor why open markets and strong global competition policies will effectively counter these otherwise negative effects while still being responsive to national policy concerns including, but not limited to the appropriate degree of convergence and confidentiality in competition cases.

The need for certain regulations and restrictions, which in Mr. Almunia’s view are “misguided,” as well as matters concerning the protection of confidentiality from disclosure in competition cases are also dismissed rather than being adequately addressed.[48]  Additionally, the EU’s position concerning the disclosure of documents in competition cases remains uncertain and fails to be effectively evaluated by Mr. Almunia’s speech.


[1] Almunia, J, The Evolutionary Pressure of Globalisation on Competition Control, International Competition Network 12th Annual Conference, Speech/13/360, 24 April 2013. <http://europa.eu/rapid/press-release_SPEECH-13-360_en.htm> Accessed 30th of April 2013.

[2] See Ibid., pps. 4-5.

[3] Ibid., p. 5.

[4] Townley, C. Article 81 EC and Public Policy (Hart Publishing, Oxford 2009), p. 5.

[5] Article 3(2)-(3) TEU.

[6] Regulation (EC) No. 1049/2001 of the European Parliament and of the Council of 30 May 2001 regarding public access to European Parliament, Council and Commission documents (Transparency Regulation) OJ 2001, L 145/43, art. 4(1)-(2).

[7] See Almunia, pps. 4-5.

[8] Almunia, p. 6.

[9] International Competition Network, The ICN Factsheet and Key Messages, April 2009, p. 1.

< http://www.internationalcompetitionnetwork.org/uploads/library/doc608.pdf> Accessed 30th of April 2013.

[10] Ibid.

[11] Ibid.

[12] Almunia, p. 2.

[13] Ibid.

[14] Ibid.

[15] Ibid., p. 3.

[16] Ibid.

[17] Ibid.

[18] Ibid.

[19] Ibid.

[20] Ibid.

[21] Ibid.

[22] Ibid.

[23] Ibid.

[24] Ibid.

[25] Ibid., p. 4.

[26] Ibid.

[27] Ibid.

[28] Ibid.

[29] Ibid.

[30] Almunia, p. 4.

[31] Ibid.

[32] Ibid.

[33] Ibid.

[34] Ibid.

[35] Transparency Regulation, art. 4(1)(a)-(b).

[36] Transparency Regulation, art. 4(2).

[37] Case T-344/08 EnBW Energie Baden-Württemberg AG v European Commission [2012], paras 1, 3.

[38] Ibid., paras. 5-12.

[39] Ibid., paras. 110-111.

[40] Case C-365/12 P Commission v EnBW Energie Baden-Württemberg [2012].

[41] Case C-360/09 Pfleiderer AG v Bundeskartellamt [2011] ECR I-05161.

[42] Ibid., para. 32.

[43] Ibid.

[44] Letter from Alexander Italianer (Director General for Competition) to the Honorable Viktor v. Pohorelsky, In re Air Cargo Shipping Services Antitrust Litig. No. 1:06-md-01775-JG-VVP (E.D.N.Y Oct. 12, 2011).  See also, De Stefano, G. Access of Damage Claimants to Evidence Arising Out of EU Cartel Investigations: A Fast-evolving Scenario (2012) 3 Global Competition Litigation Review 95, pps. 99-100.

[45] In Re Payment Card Interchange Fee and Merchant Discount Antitrust Litigation No. 05-MD-1720-JG-JO (E.D.N.Y Aug. 27, 2010) (Loislaw, NY Caselaw) pps. 2-3.

[46] Almunia, p. 5.

[47] Ibid.

[48] See Ibid.