Judgment of the General Court (Ninth Chamber, sitting with five Judges) 3 June 2026
Provisional text
JUDGMENT OF THE GENERAL COURT (Ninth Chamber, sitting with five Judges)
3 June 2026 ( * )
( Competition – Concentrations – Request for information – Article 11(3) of Regulation No 139/2004 – Choice of legal base – Misuse of powers – Obligation to state reasons – Not arbitrary – Impossibilium nulla obligatio est – Proportionality – Necessity of the information requested – Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms – Freedom of expression – Protection of journalistic sources – Plea of illegality – Article 7 of the Charter of Fundamental Rights – Right to respect for private and family life )
In Case T‑1097/23,
Vivendi SE, established in Paris (France), represented by P. Gassenbach, P. Wilhelm, E. Dumur, O. Thomas, S. Schrameck, F. de Bure, Y. Boubacir and M. Oiknine, lawyers,
applicant,
v
European Commission, represented by P. Caro de Sousa, B. Cullen and D. Viros, acting as Agents,
defendant,
supported by
Council of the European Union, represented by A.‑L. Meyer and N. Coghlan, acting as Agents,
intervener,
THE GENERAL COURT (Ninth Chamber, sitting with five Judges),
composed, during the deliberations, of L. Truchot, President, M. Jaeger, J. Schwarcz, M. Sampol Pucurull and T. Perišin (Rapporteur), Judges,
Registrar: H. Eriksson, Administrator,
having regard to the written part of the procedure,
further to the hearing on 14 May 2025,
gives the following
Judgment
1 By its action under Article 263 TFEU, the applicant, Vivendi SE, seeks the annulment of Commission Decision C(2023) 6428 final of 19 September 2023 relating to a proceeding pursuant to Article 11(3) of Council Regulation (EC) No 139/2004 (Case M.11184 – Vivendi/Lagardère) (‘the decision of 19 September 2023’), as amended by Commission Decision C(2023) 7463 final of 27 October 2023 (‘the decision of 27 October 2023’) (‘the contested decision’).
Background to the dispute
2 The applicant is the parent company of the Vivendi group, a French group with an international dimension specialising in media and entertainment, present on various markets through its subsidiaries.
3 On 24 October 2022, the applicant notified the European Commission of a concentration which consisted of the acquisition of sole control of Lagardère SA, a French group active, inter alia, in the media sector.
4 By decision of 9 June 2023, the Commission authorised the proposed concentration, subject to the implementation of commitments relating to the divestment of all the applicant’s business in the publishing of books and of a press magazine (‘the decision of 9 June 2023 authorising the concentration’).
5 By letter of 25 July 2023, the applicant was informed by the Commission that a formal investigation would be opened into a potential early implementation of the concentration (‘the letter of 25 July 2023 relating to the opening of the formal investigation procedure’).
Decision of 19 September 2023
6 In the context of the formal investigation into a potential early implementation of the concentration, initiated by the decision of 19 September 2023, the Commission sent the applicant a request for information, on the basis of Article 11(3) of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (‘the EC Merger Regulation’) (OJ 2004 L 24, p. 1), with a deadline of 27 October 2023. In essence, that decision imposes on the applicant the obligation to collect and communicate to the Commission, first, the documents exchanged over the period from 1 January 2020 to 19 September 2023 (‘the relevant period’), by various means of communication, received, sent or held by fifteen natural persons identified by name as well as their successors and predecessors (‘the persons concerned’) and containing certain search terms and, second, the documents exchanged, over the relevant period, between four persons identified by name, two of whom also number amongst the persons concerned.
7 In particular, point I(1) of the annex to the contested decision provides that, ‘for the purposes of the … request for information, “Lagardère” shall mean Lagardère S.A. [and] “Vivendi” shall mean Vivendi SE and the Bolloré Group’.
8 Point I(2) of the annex to the decision of 19 September 2023 defines the term ‘document’ as follows:
‘The term “Document(s)” means all computer files in the possession of, held by or under the control of Vivendi and including, without restriction, the following:
(a) any information stored electronically, including emails and instant messages (WhatsApp, SMS, Telegram, Signal, other), word-processed and pdf documents, spreadsheets and presentations, and all software and other information management and Document storage systems listed in response to Question 6 of Commission request for information No 1 dated 16 August 2023;
(b) draft Documents, metadata and copies of Documents, the originals of which are not in the possession or under the control of Vivendi, as the case may be;
(c) for the avoidance of any doubt, the term Document also includes:
(i) the Documents in all private and/or personal email accounts (provided that they have been used for professional communications at least once) as well as mobile devices, including mobile telephones or tablets (including private and/or personal mobile telephones or tablets, provided that they have been used for professional communications at least once), including instant messages and SMS; and
(ii) Documents which, although they have been deleted by the end user, remain available or accessible in Vivendi’s IT systems (for example, in back-ups).’
9 Point I(4) of the annex to the decision of 19 September 2023 defines the term ‘relevant period’ as the period from 1 January 2020 to the date of that request for information, that is to say, 19 September 2023.
10 Point II(5) of the annex to the decision of 19 September 2023 defines the concept of ‘persons concerned’ as including fifteen persons identified by name ‘as well as any persons who preceded or succeeded them in the various posts which they may have held during the relevant period’. According to point II(6) of the annex to that decision, those persons ‘may have received or sent or may hold Documents which the Commission considers essential to allow it to analyse whether the intervention and/or the consultation and/or the association of Vivendi in certain decisions taken by Lagardère may be regarded as the exercise of decisive influence by Vivendi’.
11 Point III(7) of the annex to the decision of 19 September 2023 requires the applicant to provide, first, the documents sent or received, over the relevant period, by the persons concerned (as well as their successors and predecessors), identified by name in point II(5) of that annex, and containing at least one of the search terms listed in point VII of the annex and, second, the documents exchanged, over the relevant period, between four persons identified by name in point III(7)(a) to (c) of that annex.
12 Points IV, V and VI of the annex to the decision of 19 September 2023 set out how the applicant is to provide the documents requested, the contents of the accompanying report and the requirements relating to the declarations confirming that the response is complete. Point VII of the same annex lists the search terms.
Developments subsequent to the adoption of the decision of 19 September 2023
13 By email of 11 October 2023, the applicant asked to be granted a three-month extension to respond to the request for information. In that regard, it stated that the request for information raised many difficulties, required an unusual degree of collection, processing and stocktaking work and necessitated the mobilisation of significant human and technical resources.
14 By an email of 12 October 2023, the Commission asked the applicant to explain the nature and the scale of the difficulties encountered by it.
15 By email of 14 October 2023, the applicant stated that some of those difficulties were, inter alia, connected with the lack of adequate procedural safeguards such as to ensure respect for the private life of the persons concerned, other employees or company officers or other persons potentially affected by the request for information and the protection of journalistic sources.
16 In the course of a telephone conference on 18 October 2023, the Commission confirmed to the applicant that documents which could reveal journalistic sources would enjoy special protection modelled on the procedure established to protect legal professional privilege.
17 On 19 October 2023, the applicant explained that it was unable to require access to the email accounts and mobile telephones of the person referred to in point II(5)(i) of the annex to the decision of 19 September 2023, on account of the current ‘hold separate’ situation between it and one of its subsidiaries, as a result of the conditions and obligations set out in the decision of 9 June 2023 authorising the concentration.
18 By email of 26 October 2023, the Commission asked the applicant to send it the list of the persons concerned holding a press card and to discuss practical arrangements with a view to reconciling the protection of journalistic sources with the handover of the documents covered by the decision of 19 September 2023.
19 On 27 October 2023, the date on which the deadline set by the decision of 19 September 2023 expired, the applicant had not submitted any documents. On the same day, the Commission adopted the decision of 27 October 2023. By Article 1 of that decision, the Commission removed from the list of the persons concerned the person referred to in point II(5)(i) of the annex to the decision of 19 September 2023. By Article 2 of the same decision, the deadline of 27 October 2023 initially set by Article 1 of the decision of 19 September 2023 was extended until 1 December 2023.
20 By application lodged at the Registry of the General Court on 23 November 2023, the applicant brought an action seeking the annulment of the contested decision, that is to say, the decision of 19 September 2023, as amended by the decision of 27 October 2023.
Facts subsequent to the bringing of the action
21 By letter of 6 December 2023, the Director-General of the Commission’s ‘Competition’ Directorate-General stated that any document jeopardising the protection of sensitive personal data or of journalistic sources would benefit from procedural safeguards under the relevant legislation and case-law, and provided details of those procedural safeguards (‘the letter of 6 December 2023’).
22 On 24 January 2024, the Commission adopted Decision C(2024) 571 final relating to a proceeding pursuant to Article 11(3) and Article 15(1) of Regulation No 139/2004 (‘the decision of 24 January 2024’). First, by Article 1 of that decision, the deadline of 1 December 2023, set by Article 2 of the decision of 27 October 2023, was extended until 7 February 2024. Second, by Article 2 of the decision of 24 January 2024, pursuant to Article 15 of Regulation No 139/2004, a periodic penalty payment not exceeding 5% of its average daily turnover was imposed on the applicant for each day of delay, calculated from the first working day following the date set in Article 1 of that decision. Third, recital 13(a) of the decision of 24 January 2024 sets out procedural safeguards in addition to those provided for in the contested decision with a view to ensuring the protection of sensitive personal data, by introducing a virtual data room procedure, as proposed by the letter of 6 December 2023. Recital 13(b) of the decision of 24 January 2024 sets out procedural safeguards for the protection of journalistic sources, confirming the procedure proposed by the letter of 6 December 2023.
23 Following discussions with the applicant’s legal counsel, in the course of a telephone conference held on 30 January 2024, the Commission agreed that the exchanges between the persons concerned by the contested decision and contacts of a strictly personal nature would be placed in the virtual data room.
24 In February 2024, the applicant provided the Commission with some of the documents satisfying the criteria defined in the contested decision.
25 Between September and December 2024, the applicant sent documents to the Commission, with the result that, in December 2024, the Commission had received from the applicant the documents which satisfied the criteria defined in the contested decision, with the exception of documents covered by legal professional privilege or by the confidentiality of journalistic sources, or documents relating to the private life of the persons concerned.
Interim proceedings
26 By separate document lodged at the Registry of the General Court on 24 November 2023, the applicant lodged an application for interim measures seeking, inter alia, suspension of the operation of the contested decision.
27 By the order of 28 November 2023, Vivendi v Commission (T‑1097/23 R, not published), the President of the General Court ordered the suspension of the operation of the contested decision until the adoption of the order terminating the proceedings in Case T‑1097/23 R, without prejudice to the applicant’s obligation to continue to collect the information and to retain, on an electronic device, all the documents concerned by that decision.
28 By the order of 19 January 2024, Vivendi v Commission (T‑1097/23 R, not published, EU:T:2024:15), the President of the General Court dismissed the application for interim measures.
29 By the order of 6 February 2024, Vivendi v Commission (C‑90/24 P(R)-R, EU:C:2024:121), the Vice-President of the Court of Justice ordered the suspension of the obligation imposed on the applicant by the contested decision, without prejudice to the latter’s obligation to take all appropriate measures to ensure that all the documents covered by that decision are retained.
30 By order of 11 April 2024, Vivendi v Commission (C‑90/24 P(R), EU:C:2024:318), the Vice-President of the Court of Justice set aside the order of 19 January 2024, Vivendi v Commission (T‑1097/23 R, not published, EU:T:2024:15). In addition, he found that the condition relating to urgency was satisfied and referred the case back to the General Court for it to rule on the condition relating to the establishment of a prima facie case and, if necessary, for the relevant interests to be weighed up.
31 By order of 13 June 2024, Vivendi v Commission (T‑1097/23 R-RENV, not published, EU:T:2024:381), the Vice-President of the General Court granted, in part, the applicant’s application, first, for the suspension of the operation of the contested decision and, second, as a precautionary measure, that it be required to retain all the documents concerned by the contested decision on a dedicated electronic device, handed over with an electronic seal to an independent and trusted third party.
32 On 3 July 2024, the applicant lodged an appeal for the order of 13 June 2024, Vivendi v Commission (T‑1097/23 R-RENV, not published, EU:T:2024:381) to be set aside. In parallel, the applicant asked the Court of Justice to suspend the operation of that order and of the contested decision.
33 By order of 8 July 2024, Vivendi v Commission (C‑470/24 P(R)-R, not published, EU:C:2024:592), the obligation imposed on the applicant to collect and communicate to the Commission the documents referred to in the contested decision was suspended until the adoption of the order terminating the present interim proceedings or that ruling on the appeal in Case C‑470/24 P(R), whichever occurs first, without prejudice to the applicant’s obligation to take all appropriate measures to ensure that all those documents are retained.
34 By order of 26 July 2024, Vivendi v Commission (T‑1097/23 R-RENV-INTP, not published, EU:T:2024:516), the Vice-President of the General Court dismissed the application for interpretation of point 1 of the operative part of the order of 13 June 2024, Vivendi v Commission (T‑1097/23 R-RENV, not published, EU:T:2024:381), as inadmissible.
35 By order of 16 August 2024, Vivendi v Commission (C‑470/24 P(R), not published, EU:C:2024:674), the Vice-President of the Court of Justice dismissed the applicant’s appeal in Case C‑470/24 P(R).
Forms of order sought
36 The applicant claims that the Court should:
– annul the contested decision;
– order the Commission to pay the costs.
37 The Commission, supported by the Council of the European Union, contends that the Court should:
– dismiss the action;
– order the applicant to pay the costs.
Law
38 In support of its action, the applicant raises seven pleas in law, alleging, first, the choice of an incorrect legal basis and a misuse of powers; second, infringement of the obligation to state reasons; third, infringement of the principle of protection against arbitrary and disproportionate intervention by public authorities; fourth, infringement of the principle of impossibilium nulla obligatio est in connection with the request to provide documents originating from the Bolloré group; fifth, infringement of the principle of proportionality; sixth, interference with the protection of journalistic sources; and, seventh, a lack of adequate safeguards to protect the right to respect for private life.
39 The General Court considers it appropriate to begin by examining the second plea in law, alleging infringement of the obligation to state reasons.
The second plea in law, alleging infringement of the obligation to state reasons
40 By its second plea in law, the applicant alleges that the Commission has infringed its general obligation to state reasons under Article 296 TFEU and its specific obligation to state reasons under Article 11(3) of Regulation No 139/2004, by having failed to define in sufficiently clear terms the purpose and the scope of its investigation.
41 The second plea in law essentially has four parts. By the first part, the applicant claims that the contested decision does not clearly state the purpose of the request for information, as it does not indicate the precise and objective considerations which justified its adoption. By the second part, the applicant submits that the contested decision is vitiated by a failure to state reasons concerning the material, temporal and personal scope of the information requested. By the third part, the applicant alleges that the Commission did not explain, in the contested decision, the reasons justifying the inclusion of the Bolloré group in the scope of that decision. By the fourth part, the applicant submits, in essence, that the contested decision does not provide adequate reasons as regards, first, the recourse to a decision requesting information on the basis of Article 11(3) of Regulation No 139/2004 and, second, the need to act quickly.
Preliminary observations
42 It should be recalled that, according to settled case-law, the statement of reasons required under Article 296 TFEU for measures adopted by EU institutions must be appropriate to the measure at issue and must disclose clearly and unequivocally the reasoning followed by the institution which adopted that measure in such a way as to enable the persons concerned to ascertain the reasons for it and to enable the competent court to review its legality. The requirements to be satisfied by the statement of reasons depend on all the circumstances of each case, in particular, the content of the measure in question, the nature of the reasons given and the interest which the addressees of the measure, or other parties to whom it is of concern within the meaning of the fourth paragraph of Article 263 TFEU, may have in obtaining explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question whether the statement of reasons meets the requirements of Article 296 TFEU must be assessed with regard not only to its wording but also to its context and to all the legal rules governing the matter in question (see judgment of 10 March 2016, HeidelbergCement v Commission , C‑247/14 P, EU:C:2016:149, paragraph 16 and the case-law cited).
43 As regards, in particular, the statement of reasons for a decision requesting information, it should be recalled that Article 11(3) of Regulation No 139/2004 defines the essential elements thereof (see, by analogy, judgment of 10 March 2016, HeidelbergCement v Commission , C‑247/14 P, EU:C:2016:149, paragraph 17).
44 In accordance with that provision, the Commission ‘shall state the legal basis and the purpose of the request, specify what information is required and fix the time limit within which it is to be provided’. Furthermore, that provision states that the Commission ‘shall also indicate the penalties provided for in Article 14 [of Regulation No 139/2004]’, ‘indicate or impose the penalties provided for in Article 15 [of that regulation]’ and ‘further indicate the right to have the decision reviewed by the Court of Justice’.
45 As a preliminary point, it should be recalled that all language versions of an EU act must, in principle, be recognised as having the same value. In order to maintain the uniform interpretation of EU law, in the case of divergence between those versions, the provision in question must therefore be interpreted by reference to the purpose and general scheme of the rules of which it forms part. Thus, the wording used in one of the language versions of an act cannot serve as the sole basis for the interpretation of that act, or be made to override the other language versions in that regard. Such an approach would be incompatible with the requirement of the uniform application of EU law (see judgment of 20 February 2018, Belgium v Commission , C‑16/16 P, EU:C:2018:79, paragraphs 49 and 50 and the case-law cited).
46 In the present case, it must be stated that Article 11(3) of Regulation No 139/2004 provides, in the French-language version thereof, that, in a request for information made by decision, the Commission is to state the legal basis and the ‘ objet ’ of that request. The other language-versions of that provision use words corresponding to the term ‘purpose’, such as, for example, the English-, German-, Dutch-, Italian-, Greek- and Croatian-language versions, which use respectively the words ‘purpose’, ‘ Zweck ’, ‘ doel ’, ‘ scopo ’, ‘ σκοπό ’ and ‘ svrhu ’, with the exception of the Spanish-language version which uses the term ‘ objeto ’. It is thus clear from the terms used in the other language versions, and taking into account the context of that provision and the objective pursued by the regulation at issue, that, in Article 11(3) of Regulation No 139/2004, the legislature intended to refer to the concept of ‘purpose’, which appears in Article 11(2) of Regulation No 139/2004 and in Article 18(2) and (3) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules of competition laid down in Articles [101 and 102 TFEU] (OJ 2003 L 1, p. 1), as interpreted in the case-law cited in paragraph 48 below.
47 The obligation to state specific reasons is a fundamental requirement, designed not merely to show that the request for information is justified but also to enable the undertakings concerned to assess the scope of their duty to cooperate whilst at the same time safeguarding their rights of defence (see, by analogy, judgment of 10 March 2016, HeidelbergCement v Commission , C‑247/14 P, EU:C:2016:149, paragraph 19 and the case-law cited).
48 With respect to the obligation to state the ‘purpose of the request’, the Commission must indicate the purpose of its investigation in its request and therefore identify the alleged infringement of competition rules (see, to that effect and by analogy, judgment of 10 March 2016, HeidelbergCement v Commission , C‑247/14 P, EU:C:2016:149, paragraph 20 and the case-law cited).
49 In that regard, the Commission is not required to communicate to the addressee of a decision requesting information all the information at its disposal concerning presumed infringements, or to make a precise legal analysis of those infringements, providing it clearly indicates the suspicions which it intends to investigate (see, by analogy, judgment of 10 March 2016, HeidelbergCement v Commission , C‑247/14 P, EU:C:2016:149, paragraph 21 and the case-law cited).
50 That obligation may be explained, inter alia, by the fact that, as is apparent from Article 11(1) of Regulation No 139/2004, in order to carry out the duties assigned to it by that regulation, the Commission may, by simple request or by decision, require undertakings and associations of undertakings to provide ‘all necessary information’ (see, by analogy, judgment of 10 March 2016, HeidelbergCement v Commission , C‑247/14 P, EU:C:2016:149, paragraph 22 and the case-law cited).
51 It therefore follows that the Commission is entitled to require the disclosure only of information which may enable it to investigate presumed infringements which justify the conduct of the investigation and are set out in the request for information (see, by analogy, judgment of 10 March 2016, HeidelbergCement v Commission , C‑247/14 P, EU:C:2016:149, paragraph 23).
52 In addition, since the necessity of the information must be judged in relation to the purpose stated in the request for information, that purpose must be indicated with sufficient precision, otherwise it will be impossible to determine whether the information is necessary and the EU judicature will be prevented from exercising judicial review (see, by analogy, judgment of 10 March 2016, HeidelbergCement v Commission , C‑247/14 P, EU:C:2016:149, paragraph 24 and the case-law cited).
53 Thus, the adequacy of the statement of reasons of a decision requesting information depends on whether or not the putative infringements that the Commission intends to investigate are defined in sufficiently clear terms (see, by analogy, judgment of 10 March 2016, HeidelbergCement v Commission , C‑247/14 P, EU:C:2016:149, paragraph 25).
54 When the extent of the obligation to state reasons is assessed with respect to a decision requesting information pursuant to Article 11(3) of Regulation No 139/2004, account should also be taken of the stage of investigation at which such a decision is adopted and of whether or not the Commission already had some information concerning the presumed infringements (see, to that effect and by analogy, judgment of 9 April 2019, Qualcomm and Qualcomm Europe v Commission , T‑371/17, not published, EU:T:2019:232, paragraph 46 and the case-law cited).
55 It is in the light of those considerations that the adequacy of the statement of reasons for the contested decision must be examined.
The first part of the second plea in law, alleging a failure to state adequate reasons concerning the purpose of the request for information
56 By the first part of the second plea in law, the applicant claims, in essence, that the contested decision does not clearly state the purpose of the request for information, since it does not indicate the precise and objective considerations which justified its adoption and, in particular, the suspected infringements. Specifically, in the applicant’s view, the contested decision provides no clarification of the ‘complaints’ and the ‘evidence’ of which the Commission was aware, to which reference is made in the letter of 25 July 2023 relating to the opening of the formal investigation procedure but not in the contested decision.
57 The Commission disputes the applicant’s line of argument.
58 In that regard, it is apparent from recitals 1 to 3 of the contested decision that, first, the Commission had authorised the applicant’s acquisition of Lagardère subject to the implementation of commitments relating to the applicant’s divestment of all activities in the publishing of books (grouped under Editis, a subsidiary of the applicant) and of the press magazine Gala and, second, on the date on which the contested decision was adopted, the applicant remained subject to the standstill obligation in in relation to that acquisition since the Commission had not yet approved the purchaser and the terms of the divestment vis-à-vis Editis and Gala.
59 In recital 4 of the contested decision, the Commission recalls that, pursuant to Article 11(1) of Regulation No 139/2004, it may request all information necessary for it to carry out the duties assigned to it by that regulation.
60 In recital 5 of the contested decision, the Commission also makes reference to the requirements of the statement of reasons for a request for information adopted on the basis of Article 11(3) of Regulation No 139/2004. In that regard, it explains that, ‘where [it] requires, pursuant to Article 11(3) of [that] regulation …, an undertaking to supply information by a decision, it shall state the legal basis and the purpose of the request, specify what information is required and fix the time limit within which it is to be provided[;] it shall also indicate the penalties provided for in Article 14 of [the same] regulation … and indicate or impose the penalties provided for in Article 15 of [that] regulation[;] it shall further indicate the right to have the decision reviewed by the Court of Justice’.
61 The purpose of the request for information is stated in recitals 6 and 7 of the contested decision, which provide as follows:
‘(6) In order to allow the Commission to assess whether Vivendi exercised decisive influence over Lagardère that could constitute a breach of the notification requirement and/or a breach of the standstill obligation and/or a failure to comply with the conditions and obligations associated with the Commission’s decision to authorise the Vivendi/Lagardère merger, the Commission has decided to require Lagardère to provide it with a certain number of documents, internal exchanges and external communications. Those documents and communications concern decisions taken by Lagardère in which Vivendi could have played a decisive role akin to that exercised by a controlling shareholder. The request for information is attached as an annex to this decision.
(7) The documents and communications requested in accordance with this decision and annexed hereto are essential to allow the Commission to analyse whether the intervention and/or the consultation and/or the association of Vivendi in certain decisions taken by Lagardère may be regarded as the exercise of decisive influence by Vivendi in the terms set out in recital 6. The documents and communications concerned relate to the implementation of operational synergies, such as programmes shared between audiovisual entities of Vivendi and Lagardère, the determination of the programme schedule of the Europe 1 radio station, which belongs to the Lagardère group, appointments and departures of journalists within publications of the Lagardère group, editorial choices of magazines in the Lagardère group that may have been influenced by Vivendi executives or by its main shareholder the Bolloré group, and the relocation of entities of the Vivendi group to premises belonging to Lagardère. They also concern strategic decisions taken by the Hachette publishing group (which belongs to Lagardère) and in relation to which Vivendi might have played a role that could be regarded as the exercise of decisive influence, such as the dropping of litigation against a Vivendi subsidiary or the failure to submit a bid to purchase the American publisher …, as well as the circumstances in which appointments were made to the board of directors of Lagardère of certain individuals with known ties to the Bolloré group.’
62 It must be observed that, in recitals 6 and 7 of the contested decision, the Commission sets out the suspected infringements of the provisions of Regulation No 139/2004 which it intends to investigate and defines the purpose of its investigation, within the meaning of the case-law recalled in paragraphs 48 and 49 above.
63 Thus, the provisions of recitals 6 and 7 of the contested decision constitute a clear and unequivocal description of the purpose of the Commission’s investigation. On the basis of that information, it is also possible to determine with a sufficient degree of precision the suspected infringements justifying the adoption of that decision, in accordance with the case-law cited in paragraphs 48 to 53 above.
64 Consequently, that statement of reasons satisfies the obligation to state the purpose of the request for information within the meaning of Article 11(3) of Regulation No 139/2004.
65 That conclusion cannot be called into question by the applicant’s argument that the contested decision provides no clarification of the ‘complaints’ and the ‘evidence’ of which the Commission was aware, to which reference is made in the letter of 25 July 2023 relating to the opening of the formal investigation procedure but not in the contested decision.
66 First, as the applicant acknowledges, the purpose of the request was also stated in the letter of 25 July 2023 relating to the opening of the formal investigation procedure, of which the applicant was aware when the contested decision was adopted.
67 Second, in accordance with the settled case-law cited in paragraph 49 above, the Commission is not required to communicate to the addressee of a decision requesting information all the information at its disposal concerning presumed infringements, or to make a precise legal analysis of those infringements, providing it clearly indicates the suspicions which it intends to investigate.
68 In that regard, it should be observed that the contested decision was adopted as part of the preliminary investigation stage of the administrative procedure under Regulation No 139/2004, which is intended to enable the Commission to gather all the relevant evidence confirming that there has or has not been an infringement of the obligations arising from that regulation and to adopt an initial position on the course which the procedure is to follow (see, to that effect and by analogy, judgment of 29 September 2011, Elf Aquitaine v Commission , C‑521/09 P, EU:C:2011:620, paragraph 113 and the case-law cited).
69 In addition, according to case-law, the Commission cannot be required to indicate, during the preliminary investigation stage, besides the putative infringements it intends to investigate, the evidence, that is to say, the information leading it to consider that competition law may have been infringed. Such an obligation would upset the balance struck by the case-law between preserving the effectiveness of the investigation and upholding the defence rights of the undertaking concerned (see, to that effect and by analogy, judgment of 14 March 2014, Cementos Portland Valderrivas v Commission , T‑296/11, EU:T:2014:121, paragraph 37).
70 In the light of those factors, it must be found that the statement of reasons for the contested decision does enable, first, the applicant to determine whether the information requested is necessary for the purposes of the investigation and, second, the EU judicature to exercise judicial review. The applicant is therefore wrong to allege infringement of the obligation to state reasons, as provided for in Article 296 TFEU and in Article 11(3) of Regulation No 139/2004, as regards the purpose of the Commission’s investigation and the description of the practices the existence of which it intends to determine as part of its investigation.
71 In the light of the foregoing considerations, the first part of the second plea in law must be rejected.
The second part of the second plea in law, alleging a failure to state reasons concerning the material, temporal and personal scope of the information requested
72 By the second part of the second plea in law, the applicant claims that the contested decision contains no statement of reasons capable of justifying the material, temporal and personal scope of the information requested, in particular the choice of the search terms, the criteria for designation of the persons concerned and the relevant period covered by the contested decision.
73 The Commission disputes the applicant’s arguments.
74 In that regard, as is apparent from paragraphs 6 to 12 and 19 above, it must be observed that the contested decision, and in particular the annex thereto, clearly define the material, temporal and personal scope of the information requested. As the Commission rightly argues, the mere fact that the contested decision does not contain a specific statement of reasons for each item of information requested or for each search term cannot, as such, be regarded as a failure to state adequate reasons.
75 According to case-law, the Commission cannot be required, before requesting any information, to be familiar with the content of the requested documents and their relative importance for the investigation (see, to that effect and by analogy, judgment of 22 March 2012, Slovak Telekom v Commission , T‑458/09 and T‑171/10, EU:T:2012:145, paragraph 55).
76 In the light of the provisions and the case-law recalled in paragraphs 42 to 54 above, the obligation to state reasons in the case of a decision requesting information does not go as far as requiring the Commission to provide, in respect of each item of information requested or, as in the present case, each search term the application of which is requested, a specific statement of the reasons why it considers that that item of information or that search term, first, is necessary for its investigation and, second, contains or identifies only information relevant to that investigation.
77 Furthermore, as is apparent from paragraph 42 above, compliance with the obligation to state reasons must be assessed with regard not only to the wording of the measure at issue, but also to its context, namely, in the present case, measures already undertaken as part of the preliminary investigation stage of the administrative procedure under Regulation No 139/2004 (see paragraph 68 above).
78 In particular, the sole purpose of a request for information such as the contested decision is to enable the Commission to obtain the information and documentation necessary to check the actual existence and scope of a specific factual and legal situation (see, by analogy, judgment of 10 March 2016, HeidelbergCement v Commission , C‑247/14 P, EU:C:2016:149, paragraph 37).
79 In the light of the foregoing, the applicant cannot successfully rely on a failure to state reasons relating to the material, temporal and personal scope of the information requested.
80 Moreover, it must be observed that the applicant’s arguments seeking to dispute the necessity of the information requested go to the substantive legality of the contested decision and cannot be taken into account in the examination of a plea alleging infringement of the obligation to state reasons (see, to that effect, judgment of 9 April 2019, Qualcomm and Qualcomm Europe v Commission , T‑371/17, not published, EU:T:2019:232, paragraph 55 and the case-law cited). Those arguments will therefore be analysed when the Court examines the fifth plea in law.
81 In the light of the foregoing considerations, the second part of the second plea in law must be rejected.
The third part of the second plea in law, alleging a failure to state reasons concerning the inclusion of the Bolloré group
82 By the third part of the second plea in law, the applicant considers that the contested decision lacks any statement of reasons regarding the inclusion of the Bolloré group in the scope of the request for information. The Commission’s suspicions, as set out in the letter of 25 July 2023 relating to the opening of the formal investigation procedure and briefly reproduced in the application, concern not the exercise of decisive influence by the Bolloré group over Lagardère, but by the applicant over Lagardère. Accordingly, in the applicant’s view, no reasons whatsoever are stated for the request for information held by a third party over which it exercises no control, that is to say, the Bolloré group.
83 The Commission disputes the applicant’s line of argument.
84 In this regard, it is sufficient to observe that recital 7 of the contested decision states that the documents concerned relate to certain decisions by Lagardère ‘that may have been influenced by Vivendi executives or by its main shareholder the Bolloré group’. Furthermore, as the Commission points out, the decision of 9 June 2023 authorising the concentration and the notification form for the merger submitted to it by the applicant consider it established that the Bolloré group and Vivendi constitute a single undertaking for the purposes of competition law.
85 The applicant is therefore wrong to claim infringement of the obligation to state reasons as regards the inclusion of the Bolloré group in the list of the persons concerned by the request for information.
86 Accordingly, the third part of the second plea in law must be rejected.
The fourth part of the second plea in law, alleging a failure to state adequate reasons relating, first, to the recourse to a decision requesting information on the basis of Article 11(3) of Regulation No 139/2004 and, second, the need to act quickly
87 By the fourth part, the applicant submits, in essence, that the contested decision does not explain, to the requisite legal standard, the reasons why it was deemed necessary to have recourse to a request for information by decision on the basis of Article 11(3) of Regulation No 139/2004 rather than to a simple request for information on the basis of Article 11(2) of Regulation No 139/2004 or an inspection on the basis of Article 13 of Regulation No 139/2004. Furthermore, in its view, the contested decision is vitiated by a failure to state reasons as regards the need to act quickly.
88 The Commission disputes the applicant’s line of argument.
89 In the present case, recital 8 of the contested decision states that, ‘in the context of these proceedings to establish an infringement, the Commission takes the view that only a decision adopted pursuant to Article 11(3) of the Merger Regulation can guarantee that Vivendi will provide all the documents satisfying the criteria identified by the Commission in [that] decision[;] the use of the procedure under Article 11(3) of the Merger Regulation is the only procedure provided for in the Merger Regulation allowing the Commission to require the addressee undertakings to provide a full response, failing which penalties would be imposed[;] moreover, the Commission is of the view that it is necessary to act quickly to prevent relevant documents being deleted from Vivendi’s files, in particular if messages are deleted after a certain period of time or certain documents originating from a contributing party are not retained for very long after that person’s departure[;] the choice of a decision adopted pursuant to Article 11(3) satisfies that objective of speed’.
90 Thus, the Commission explains, in recital 8 of the contested decision, that only a decision adopted pursuant to Article 11(3) of Regulation No 139/2004 could guarantee that the applicant would provide all the documents satisfying the criteria which it had identified, failing which penalties could be imposed, and act quickly to avoid relevant documents being deleted from the applicant’s files.
91 Therefore, it must be held that the contested decision provided adequate reasons, within the meaning of the case-law cited in paragraph 42 above, as regards the recourse to Article 11(3) of Regulation No 139/2004 as the legal basis for that decision.
92 That conclusion cannot be called into question by the other arguments raised by the applicant.
93 In the first place, with regard to the recourse to a request for information by decision on the basis of Article 11(3) of Regulation No 139/2004 rather than to a simple request for information on the basis of Article 11(2) of Regulation No 139/2004, Article 11(1) of Regulation No 139/2004 states that the Commission may ask for information ‘by simple request or by decision’, without that provision making the adoption of a decision subject to a prior simple request.
94 The choice to be made between a simple request for information and a decision must be dependent on what is necessary for a proper investigation, in the light of the specific features of the case in question (see, by analogy, judgment of 14 March 2014, Holcim (Deutschland) and Holcim v Commission , T‑293/11, not published, EU:T:2014:127, paragraph 84 and the case-law cited).
95 The Commission enjoys broad discretion in applying Articles 11, 14 and 15 of Regulation No 139/2004 (judgment of 4 October 2024, thyssenkrupp v Commission , C‑581/22 P, EU:C:2024:821, paragraph 380).
96 As the Commission observes, in the case of simple requests for information made on the basis of Article 11(2) of Regulation No 139/2004, Article 14(1)(b) of that regulation provides for a penalty only if incorrect or misleading information is supplied, whereas, in the case of requests by decision on the basis of Article 11(3) of the same regulation, incomplete or late responses constitute separate grounds for penalties, in accordance with Article 14(1)(c) of the regulation.
97 A request for information made by decision differs from a simple request for information because, where the Commission has recourse to the former, a fine or periodic penalty payments may be imposed in order to compel an undertaking to provide full and accurate information, pursuant, respectively, to Article 14(1)(c) and Article 15(1)(a) of Regulation No 139/2004 (see, to that effect, judgment of 4 October 2024, thyssenkrupp v Commission , C‑581/22 P, EU:C:2024:821, paragraph 379).
98 In the present case, as is apparent from recital 8 of the contested decision, referred to in paragraph 89 above, the Commission explains to the requisite legal standards that recourse to the procedure under Article 11(3) of Regulation No 139/2004 allows it to impose on the undertakings which are the addressees of its decision the obligation to provide a full response, failing which penalties would be imposed.
99 In the second place, as regards the recourse to a request for information by decision on the basis of Article 11(3) of Regulation No 139/2004 rather than to an inspection on the basis of Article 13 of Regulation No 139/2004, it must be recalled that, according to the case-law cited in paragraph 141 below, inspections are more restrictive in nature and their impact on the legal situation of the undertaking concerned has a particularly intensity as compared with a request for information.
100 The Commission cannot therefore be required to justify its choice not to have recourse to a measure such as an inspection, which constitutes a more restrictive procedure than the request for information provided for in Article 11(3) of Regulation No 139/2004.
101 In the third place, as regards the need to act quickly, as is apparent from recital 8 of the contested decision, cited in paragraph 89 above, the Commission took the view that it was necessary to act quickly to prevent relevant documents being deleted from the applicant’s files, in particular if messages were deleted after a certain period of time or if certain documents originating from a contributing party were not retained for a sufficiently long period of time following the departure of that person. In the Commission’s view, that objective of speed was met by opting for a request for information by decision pursuant to Article 11(3) of Regulation No 139/2004.
102 In the light of the foregoing, it must be concluded that the contested decision provides adequate reasons as regards the recourse to a decision requesting information on the basis of Article 11(3) of Regulation No 139/2004 and the need to act quickly.
103 Moreover, it should be borne in mind that the duty to state adequate reasons is an essential procedural requirement which must be distinguished from the question whether the reasoning is well founded, which is concerned with the substantive legality of the measure at issue. The reasoning of a decision consists in a formal statement of the grounds on which that decision is based. If those grounds are vitiated by errors, the latter will vitiate the substantive legality of the decision, but not the statement of reasons in it, which may be adequate even though it sets out reasons which are incorrect (see judgment of 10 July 2008, Bertelsmann and Sony Corporation of America v Impala , C‑413/06 P, EU:C:2008:392, paragraph 181 and the case-law cited).
104 Therefore, the applicant’s other arguments intended to demonstrate that the statement of reasons for the contested decision is erroneous are ineffective in the context of a plea alleging a failure to state reasons.
105 In so far as the applicant disputes, in reality, the merits of the recourse to Article 11(3) of Regulation No 139/2004, that line of argument will be examined in the context of the first and third parts of the first plea in law (see paragraphs 109 to 125 and 130 to 144 below). Similarly, in so far as the applicant disputes, in reality, the need to act quickly, that line of argument will be analysed in the context of the second part of the fifth plea in law (see paragraphs 279 to 299 below).
106 Lastly, the applicant’s argument that the Commission did not comply with the enhanced obligation to state reasons applicable where it breaks with its ‘usual practice’ is not further explained or sufficiently substantiated and must therefore be rejected.
107 The fourth part of the second plea in law must therefore be rejected, as must, in consequence, the second plea in law in its entirety.
The first plea in law, alleging the choice of an incorrect legal basis and a misuse of power s
108 By its first plea in law, the applicant submits that the Commission could not have recourse to Article 11(3) of Regulation No 139/2004 to adopt the contested decision. The first plea in law consists, in essence, of three parts. By the first part, the applicant submits that the contested decision does not concern the assessment of the effects of a concentration. By the second part, the applicant argues that the contested decision does not comply with the inherent requirements of necessity and precision. By the third part, the applicant alleges that the Commission misused its powers.
The first part of the first plea in law, alleging that the contested decision does not concern the assessment of the effects of a concentration
109 By the first part of the first plea in law, the applicant claims that Article 11(3) of Regulation No 139/2004 can serve as a legal basis only for requests for information for the purposes of assessing the compatibility with the internal market of a concentration notified to the Commission. In addition, recourse to Article 11(3) of Regulation No 139/2004 is no longer relevant once examination of the effects of a concentration on the market is completed, which is inter alia the case where a concentration has been authorised by the Commission.
110 In the present case, in the applicant’s view, Article 11(3) of Regulation No 139/2004 cannot serve as the legal basis of the contested decision, since the purpose of that decision is not to obtain information regarding the compatibility of the applicant’s acquisition of control of Lagardère and comes, in any case, after the Commission’s authorisation of that acquisition.
111 The Commission disputes the applicant’s line of argument.
112 Under Article 11(1) of Regulation No 139/2004, ‘in order to carry out the duties assigned to it by [that regulation], the Commission may, by simple request or by decision, require the persons referred to in Article 3(1)(b), as well as undertakings and associations of undertakings, to provide all necessary information’.
113 Thus, it follows from the wording of Article 11(1) of Regulation No 139/2004 that the Commission may request all information necessary to carry out the duties assigned to it by that regulation.
114 It is true that, as the applicant claims, it has been held that the Commission could exercise the powers conferred on it by Article 11 of Regulation No 139/2004 only to the extent that it considers that it is not in possession of all the information necessary to enable it to decide on the compatibility of the concentration concerned with the common market (see judgment of 4 February 2009, Omya v Commission , T‑145/06, EU:T:2009:27, paragraph 28 and the case-law cited).
115 However, as the Commission observes, that line of reasoning reflects the principle that the necessity of an item of information requested by the Commission must be assessed with regard to the purpose stated in the request for information. It does not call into question the fact that, under Article 11(1) of Regulation No 139/2004, the Commission may request all information necessary to carry out the duties assigned to it by that regulation.
116 In the present case, the purpose of the request for information is stated in recitals 6 and 7 of the contested decision, cited in paragraph 61 above. It is apparent from those recitals that the Commission requested the information in question in order to assess whether the applicant had exercised decisive influence over Lagardère that could constitute a breach of the notification requirement and/or a breach of the standstill obligation and/or a failure to comply with the conditions and obligations associated with the decision of 9 June 2023 authorising the concentration. That information is essential to allow the Commission to analyse whether the intervention and/or the consultation and/or the association of the applicant in certain decisions taken by Lagardère may be regarded as the exercise of decisive influence by the applicant.
117 It must be observed that the purpose of the request for information, as set out in recitals 6 and 7 of the contested decision, cited in paragraph 61 above, falls within the scope of the duties assigned to the Commission by Regulation No 139/2004.
118 As is apparent from the second subparagraph of Article 8(2) of Regulation No 139/2004, the Commission may attach to its decision declaring a concentration compatible with the common market conditions and obligations intended to ensure that the undertakings concerned comply with the commitments they have entered into vis-à-vis the Commission with a view to rendering the concentration compatible with the internal market.
119 In addition, Article 7 of Regulation No 139/2004, entitled ‘Suspension of concentrations’, provides, in paragraph 1 thereof, that ‘a concentration with a Community dimension as defined in Article 1, or which is to be examined by the Commission pursuant to Article 4(5), shall not be implemented either before its notification or until it has been declared compatible with the common market pursuant to a decision under Articles 6(1)(b), 8(1) or 8(2), or on the basis of a presumption according to Article 10(6)’.
120 In the present case, it is apparent from recital 1 of the contested decision that, ‘in [the] decision of 9 June 2023 [authorising the concentration], the Commission authorised the acquisition of Lagardère … by Vivendi … subject to the implementation of commitments relating to the divestment of all Vivendi’s activities in the publishing of books (grouped under Editis, a Vivendi subsidiary) and of the press magazine Gala ’.
121 According to recital 3 of the contested decision, ‘the divestment commitments entered into by Vivendi provide, moreover, that the acquisition of Lagardère by Vivendi can be finalised only after the Commission has approved the purchaser and the terms of the divestment …; on the date of [that] decision, Vivendi remains subject to the standstill obligation in so far as the Commission has not yet issued such approvals’.
122 Thus, pursuant to Article 7 of Regulation No 139/2004, the Commission was tasked with ensuring that the conditions imposed by the decision of 9 June 2023 authorising the concentration are observed by the applicant and that the applicant complies with its obligations under that regulation.
123 In the light of the foregoing considerations, it must be observed that searching for evidence that may allow presumed infringements of the obligations arising from Regulation No 139/2004 to be investigated is one of the duties assigned to the Commission by that regulation, and that, in order to carry out those duties, the Commission may, pursuant to Article 11(1) of the regulation, request all necessary information. Therefore, searching for such evidence is one of the objectives pursued by a request for information adopted on the basis of Article 11(3) of Regulation No 139/2004.
124 It therefore follows that the Commission could legitimately rely on Article 11(3) of Regulation No 139/2004 to adopt the contested decision.
125 The first part of the first plea in law must therefore be rejected.
The second part of the first plea in law, alleging non-compliance with the requirements of necessity and precision
126 By the second part of the first plea in law, the applicant claims that the power conferred on the Commission to request information only allows it to require the supply of ‘necessary’ information within the meaning of Article 11(1) of Regulation No 139/2004. Thus, a request for information made on the basis of Article 11(3) of Regulation No 139/2004 is subject to the requirements of necessity and precision, with which the contested decision does not comply as it pursues an ‘exploratory purpose’ and covers a body of documents which are not identified in advance by the Commission.
127 The Commission disputes the applicant’s line of argument.
128 In that regard, it is sufficient to observe that the arguments put forward by the applicant in the context of the second part of the first plea in law seek to dispute, in reality, the conformity of the contested decision with the requirements of precision and necessity.
129 Accordingly, those arguments fall rather with the scope of the second plea in law, alleging infringement of the obligation to state reasons, and of the fifth plea in law, alleging infringement of the principle of proportionality, and are thus analysed in the context of those pleas.
The third part of the first plea in law, alleging a misuse of powers
130 By the third part of the first plea in law, the applicant claims that the contested decision is vitiated by a misuse of powers because it does not pursue the objective of collecting information with a view to assessing the compatibility of a concentration with the internal market, as the merger was authorised on 9 June 2023, that is to say, three months before the adoption of the contested decision. Furthermore, in the applicant’s view, the purpose of the contested decision is in reality to conduct an ‘exploratory inspection’. Despite the fact that the contested decision constitutes a measure that is as intrusive as an inspection, it does not offer any procedural safeguards associated with such an inspection, in particular the verification method that allows representatives of the undertaking under inspection to comment on and secure the withdrawal of documents that fall outside the scope, enjoy protections or contain sensitive personal data. According to the applicant, the Commission could have abided by the more restrictive legal framework applicable to inspections.
131 The Commission disputes the applicant’s line of argument.
132 As a preliminary point, it should be borne in mind that the concept of misuse of powers refers to cases where an administrative authority has used its powers for a purpose other than that for which they were conferred on it. A decision may amount to misuse of powers only if it appears, on the basis of objective, relevant and consistent factors, to have been taken for such a purpose. Where more than one aim is pursued, even if the grounds of a decision include, in addition to proper grounds, an improper one, that would not make the decision invalid for misuse of powers, since it does not nullify the main aim (see judgment of 4 February 2009, Omya v Commission , T‑145/06, EU:T:2009:27, paragraph 99 and the case-law cited).
133 Accordingly, it is necessary to determine whether the points raised by the applicant constitute objective, relevant and consistent factors indicating that the contested decision was adopted by the Commission for a purpose other than that provided for in Article 11(3) of Regulation No 139/2004.
134 In that regard, it is apparent from paragraphs 123 and 124 above that searching for evidence that may allow presumed infringements of the obligations arising from Regulation No 139/2004 to be investigated is one of the duties assigned to the Commission by that regulation. Therefore, searching for that evidence is one of the lawfully permitted purposes of a request for information adopted on the basis of Article 11(3) of Regulation No 139/2004, which allows the Commission to require undertakings, by decision, to provide all information necessary to carry out the duties assigned to it by that regulation.
135 It follows that, since the purpose of the information requested pursuant to the contested decision is to investigate whether the applicant infringed the notification requirement, the suspension obligation or the requirement to comply with the conditions associated with a decision declaring a concentration compatible with the internal market, duties which fall within the sole competence of the Commission pursuant to Regulation No 139/2004, the Commission has not used its powers for a purpose other than that for which they were conferred on it.
136 That conclusion is not called into question by the applicant’s argument that the Commission could have abided by the more restrictive legal framework applicable to inspections, a framework which offers greater procedural safeguards.
137 In that regard, it should be recalled that, according to settled case-law, a measure is vitiated by misuse of powers only if it appears, on the basis of objective, relevant and consistent evidence, to have been taken solely, or at the very least chiefly, for ends other than those for which the power in question was conferred or with the aim of evading a procedure specifically prescribed by the FEU Treaty for dealing with the circumstances of the case (see judgment of 5 May 2015, Spain v Parliament and Council , C‑146/13, EU:C:2015:298, paragraph 56 and the case-law cited).
138 However, the procedure applicable to inspections is not specifically prescribed in the circumstances of the present case.
139 In addition, the fact that an inspection may constitute an alternative to a request for information does not mean that, in adopting the contested decision, the Commission used its powers for a purpose other than that for which they were conferred on it by Regulation No 139/2004.
140 Furthermore, it must be noted that it follows from the list of the powers of investigation afforded to Commission officials under Article 13(2) of Regulation No 139/2004 that those investigations may have a very broad scope (see, to that effect and by analogy, judgment of 12 July 2007, CB v Commission , T‑266/03, not published, EU:T:2007:223, paragraph 71), because they allow the Commission, inter alia, to enter the premises of the undertakings concerned, to take or obtain copies of or extracts from books or records, or even to seal business premises, books or records of that company for the duration of the inspection. The exercise of the powers of inspection therefore has consequences distinct from those of a request for information.
141 As the Commission submits, it follows from case-law that inspections are more restrictive in nature and that their impact on the legal situation of the undertaking concerned has a particular intensity as compared with a request for information (see, to that effect, judgment of 8 July 2008, AC-Treuhand v Commission , T‑99/04, EU:T:2008:256, paragraph 56 and the case-law cited).
142 Furthermore, contrary to what the applicant claims, it is apparent from reading the provisions of the contested decision that the Commission established certain procedural safeguards to ensure protection, first, of the legal professional privilege applicable to certain documents (point IV(10)(j) of the annex to that decision) and, second, of sensitive personal data (point IV(10)(l) of the annex to that decision).
143 It follows from the foregoing that the applicant has not established that the contested decision is vitiated by misuse of powers.
144 The third part of the first plea in law must therefore be rejected, as must, in consequence, the first plea in law in its entirety.
The third plea in law, alleging an infringement of the principle of protection against arbitrary and disproportionate intervention by public authorities
145 By its third plea in law, the applicant submits that the contested decision is not based on reasonable grounds for suspecting an infringement of the competition rules, which constitutes an infringement of the principle prohibiting arbitrary and disproportionate intervention by public authorities.
146 In the first place, the applicant takes the view that the contested decision does not provide details about the nature, origin and content of the information upon which the Commission relied to adopt that decision. Only the letter of 25 July 2023 on the opening of the formal investigation procedure states that the Commission ‘received complaints and was aware of evidence regarding Vivendi’s exercise of decisive influence over Lagardère’, without providing further details.
147 In the second place, the applicant submits that the evidence in the Commission’s possession appears to have been provided by third parties, in particular the organisation Reporters Without Borders (RWB). In the applicant’s view, that evidence cannot form the basis of a presumed infringement, since it is defamatory and of dubious origin given RWB’s well-known and long-standing hostility towards both the applicant and the Bolloré group.
148 In the third place, the applicant argues that the contested decision requires the communication of documents covering a period ‘of almost four years’ without any objective basis and chosen arbitrarily.
149 In the fourth place, the applicant submits that the letter of 25 July 2023 on the opening of the formal investigation procedure refers only to ‘complaints’ and ‘evidence’ according to which it exercised decisive influence over Lagardère, without any mention of the evidence implicating the Bolloré group. However, the annex to the contested decision refers to it as much as to the Bolloré group, thus showing that the Commission did not have, when the contested decision was adopted, reasonable grounds for suspecting it of an infringement.
150 Lastly, the applicant asks the Court to order the Commission, in the context of measures of organisation of procedure such as those provided for in Articles 89 and 90 of its Rules of Procedure, to produce all the documents, evidence and other information on the basis of which it considered that it had, on the date of the contested decision, reasonable grounds to justify adopting that decision concerning the suspected infringements set out in recitals 2, 6 and 7 thereof.
151 The Commission disputes the applicant’s line of argument.
152 It should be recalled that the need for protection against arbitrary or disproportionate intervention by the public authorities in the sphere of private activities of any person, whether natural or legal, is recognised as a general principle of law of the European Union (see judgment of 14 March 2014, Cementos Portland Valderrivas v Commission , T‑296/11, EU:T:2014:121, paragraph 39 and the case-law cited).
153 In order to comply with that general principle, a decision requesting information must be directed at gathering the necessary documentary evidence to check the actual existence and scope of a given factual and legal situation concerning which the Commission already possesses certain information, constituting reasonable grounds for suspecting an infringement of the competition rules (see judgment of 14 March 2014, Cementos Portland Valderrivas v Commission , T‑296/11, EU:T:2014:121, paragraph 40 and the case-law cited).
154 Furthermore, according to the case-law on requests for information under Article 18(3) of Regulation No 1/2003, which may be applied to the present case mutatis mutandis , having regard to the broad powers of investigation conferred on the Commission by Regulation No 1/2003, it is for the Commission to decide whether a particular item of evidence is necessary to enable it to bring to light an infringement of the competition rules. Even if it already has evidence, or indeed proof, of the existence of an infringement, the Commission may legitimately take the view that it is necessary to request further information enabling it better to define the scope of the infringement, determine its duration or identify the circle of undertakings involved (see, by analogy, judgment of 28 January 2021, Qualcomm and Qualcomm Europe v Commission , C‑466/19 P, EU:C:2021:76, paragraph 69 and the case-law cited).
155 As regards the judicial review exercised by the EU judicature of the Commission’s finding that an item of information is necessary, the Court of Justice has held that such necessity must be judged in relation to the purpose stated in the request for information, namely the suspected infringement which the Commission intends to investigate. The requirement that a correlation must exist between the request for information and the suspected infringement is satisfied if the Commission could reasonably suppose, at the time of the request, that the information may help it to determine whether the infringement has taken place (see, by analogy, judgment of 28 January 2021, Qualcomm and Qualcomm Europe v Commission , C‑466/19 P, EU:C:2021:76, paragraph 70 and the case-law cited). In addition, as observed in paragraph 54 above, when the extent of the obligation to state reasons is assessed, account should also be taken of the stage of investigation and of whether or not the Commission already has some information concerning the presumed infringements.
156 Finally, according to settled case-law, and as confirmed in Article 6(3) TEU, fundamental rights are an integral part of the general principles of law whose observance the Court of Justice ensures. The Court of Justice has thus repeatedly held that respect for the rights of the defence in the conduct of administrative procedures relating to competition policy constitutes a general principle of EU law (see judgment of 29 September 2011, Elf Aquitaine v Commission , C‑521/09 P, EU:C:2011:620, paragraph 112 and the case-law cited).
157 As regards proceedings in application of Article 101 TFEU, the administrative procedure before the Commission is divided into two distinct and successive stages, each having its own internal logic, namely a preliminary investigation stage and an inter partes stage. The preliminary investigation stage, covering the period up to notification of the statement of objections, is intended to enable the Commission to gather all the relevant evidence confirming that there has or has not been an infringement of the competition rules and to adopt an initial position on the course which the procedure is to follow. The inter partes stage, which covers the period from the notification of the statement of objections to adoption of the final decision, must enable the Commission to reach a final decision on the alleged infringement (see, by analogy, judgment of 29 September 2011, Elf Aquitaine v Commission , C‑521/09 P, EU:C:2011:620, paragraph 113 and the case-law cited).
158 The starting point for the preliminary investigation stage is the date on which the Commission, in exercise of the powers conferred on it by the EU legislature, takes measures which involve the allegation of an infringement and which have major repercussions on the situation of the undertakings under suspicion. It is not until the beginning of the inter partes administrative stage that the undertaking concerned is informed, by means of the notification of the statement of objections, of all the essential evidence on which the Commission relies at that stage of the procedure and that that undertaking has a right of access to the file in order to ensure that its rights of defence are effectively exercised. Consequently, it is only after notification of the statement of objections that the undertaking concerned is able to rely in full on its rights of defence. If those rights were extended to the period preceding the notification of the statement of objections, the effectiveness of the Commission’s investigation would be compromised, since the undertaking concerned would already be able, at the preliminary investigation stage, to identify the information known to the Commission, hence the information that could still be concealed from it (see, by analogy, judgment of 14 March 2014, Cementos Portland Valderrivas v Commission , T‑296/11, EU:T:2014:121, paragraph 34 and the case-law cited).
159 However, the measures of inquiry adopted by the Commission during the preliminary investigation stage – in particular, the investigation measures and the requests for information – suggest, by their very nature, that an infringement has been committed and may have major repercussions on the situation of the undertakings under suspicion. Consequently, it is necessary to prevent the rights of the defence from being irremediably compromised during that stage of the administrative procedure since the measures of inquiry taken may be decisive in providing evidence of the unlawful nature of conduct engaged in by undertakings for which they may be liable (see, by analogy, judgment of 14 March 2014, Cementos Portland Valderrivas v Commission , T‑296/11, EU:T:2014:121, paragraph 35 and the case-law cited).
160 Against that background, it should be recalled that the obligation imposed on the Commission requiring it to state the legal basis and the purpose of the request for information is a fundamental requirement designed not merely to show that the information requested from the undertakings concerned is justified, but also to enable those undertakings to ascertain the scope of their duty to cooperate whilst at the same time safeguarding their rights of defence. It follows that the Commission is entitled to require the disclosure only of information which may enable it to investigate the putative infringements which justify the conduct of the investigation and are set out in the request for information (see, to that effect and by analogy, judgment of 14 March 2014, Cementos Portland Valderrivas v Commission , T‑296/11, EU:T:2014:121, paragraph 36 and the case-law cited).
161 Reference must also be made to the case-law recalled in paragraph 69 above.
162 In the present case, the applicant alleges that the Commission infringed the principle prohibiting arbitrary or disproportionate intervention by the public authorities by adopting the contested decision without having reasonable grounds for suspecting an infringement of the competition rules.
163 In the first place, with regard to the applicant’s claim that the contested decision does not provide details about the evidence upon which it is based, it must be observed that, as is apparent from paragraphs 64 and 70 above, the statement of reasons for the contested decision satisfies the obligation to state the purpose of the request for information, within the meaning of Article 11(3) of Regulation No 139/2004.
164 Furthermore, in accordance with the case-law cited in paragraph 157 above, the contested decision was adopted during the preliminary investigation stage, which is intended to enable the Commission to gather all the relevant evidence confirming that there has or has not been an infringement of the competition rules and to adopt an initial position on the course which the procedure is to follow.
165 Thus, in accordance with the case-law cited in paragraph 69 above, the Commission cannot be required to indicate, in the contested decision, besides the putative infringements it intends to investigate, the evidence, that is to say, the information leading it to consider that the rules arising from Regulation No 139/2004 may have been infringed.
166 In the second place, as regards the applicant’s argument that the evidence in the Commission’s possession seems to have been provided by third parties and cannot form the basis of a presumed infringement, it must be observed, as the Commission notes, that the applicant has not explained the reasons why the origin of the documents originating from third parties, and in particular from third parties interested in the proceedings, would undermine the legality of the contested decision. It is apparent from the documents before the Court that the Commission had recognised RWB as an interested third person under Article 18(4) of Regulation No 139/2004.
167 In the third place, with regard to the applicant’s argument concerning the inclusion of the Bolloré group, as is apparent from paragraph 84 above, recital 7 of the contested decision states that the documents concerned by that decision relate inter alia to certain decisions by Lagardère ‘that may have been influenced by Vivendi executives or by its main shareholder the Bolloré group’. Furthermore, as the Commission points out, the decision of 9 June 2023 authorising the concentration and the notification form for the merger submitted to the Commission by the applicant regard it as established that the Bolloré group and Vivendi constitute a single undertaking for the purposes of competition law. Thus, the Commission could reasonably assume, on the date of the contested decision, that the information from that group may help it to determine whether there has been an infringement of the provisions of Regulation No 139/2004.
168 In the fourth place, with regard to the relevant period, as is apparent from paragraphs 218 to 222 below, given that the applicant first acquired a stake in Lagardère in March 2020, the Commission could reasonably assume, on the date of the contested decision, that information from 1 January 2020 onwards could help it to determine whether there has been an infringement of the provisions of Regulation No 139/2004, in particular because that information would make it easier to gain a good understanding of all the events and of the context in which those events had occurred.
169 In the light of the foregoing, the third plea in law must be rejected.
170 With regard to the request for a measure of inquiry by which the Commission would be ordered to produce the documents, evidence and other information on the basis of which it considered that it had grounds for suspecting infringements on the date of the contested decision, it must be recalled that, according to the case-law cited in paragraph 158 above, it is only after notification of the statement of objections that the undertaking concerned is able to rely in full on its rights of defence. If those rights were extended to the period preceding the notification of the statement of objections, the effectiveness of the Commission’s investigation would be compromised, since the undertaking concerned would already be able, as early as the preliminary investigation stage, to identify the information known to the Commission, hence the information that could still be concealed from it.
171 First, only when a request to that effect is brought before the Court and the undertakings to which a decision under Article 13(4) of Regulation No 139/2004 is addressed have put forward certain arguments liable to cast doubt on the reasonableness of the grounds on which the Commission relied in order to adopt that decision may the Court take the view that it is necessary to carry out such a determination (see, by analogy, judgment of 25 November 2014, Orange v Commission , T‑402/13, EU:T:2014:991, paragraph 88 and the case-law cited).
172 Second, it should be recalled that the review of the statement of reasons on which a decision is based also allows the courts to ensure that the principle of protection against arbitrary and disproportionate intervention is respected, in so far as the statement of reasons makes it possible to show that the operation carried out on the premises of the undertakings concerned is justified (see judgment of 25 November 2014, Orange v Commission , T‑402/13, EU:T:2014:991, paragraph 89 and the case-law cited).
173 In that regard, it must be borne in mind that Article 11(3) of Regulation No 139/2004 sets out the essential information that must be included in a decision requesting information, requiring, inter alia, the Commission to state the purpose of the request. As part of that obligation, it follows from the case-law cited in paragraphs 52, 53 and 160 above that it is for the Commission to state with sufficient precision the presumed infringements which it intends to investigate.
174 Consequently, when the Court takes the view that the presumed facts which the Commission wishes to investigate and the matters to which the request for information must relate are defined sufficiently precisely, it may conclude that a decision requesting information was not arbitrary, without it being necessary to check substantively the content of the indicia in the Commission’s possession at the date of adoption of that decision (see, to that effect and by analogy, judgment of 25 November 2014, Orange v Commission , T‑402/13, EU:T:2014:991, paragraph 91). The Court is the sole judge of whether the information available to it concerning the cases before it needs to be supplemented (see judgment of 22 June 2022, thyssenkrupp v Commission , T‑584/19, not published, EU:T:2022:386, paragraph 344 and the case-law cited).
175 It must be observed that that is the case with the contested decision, in so far as it is apparent from recitals 6 and 7 thereof, cited in paragraph 61 above, that the nature of the suspected restrictions of competition is defined in sufficiently precise and detailed terms. In addition, the contested decision explains how the applicant’s conduct could fall within the scope of each of the suspected anticompetitive practices.
176 In those circumstances, the Court may find that that the contested decision was not arbitrary solely on the basis of the grounds set out in that decision, without it being necessary to order the Commission to produce the evidence in its possession justifying that it had reasonable grounds for adopting the contested decision.
The fourth plea in law, alleging an infringement of the principle impossibilium nulla obligatio est as regards the request to provide documents originating from the Bolloré group
177 By its fourth plea in law, the applicant claims, in essence, that the contested decision infringes the principle impossibilium nulla obligatio est , because it requires it to provide the Commission with documents in the possession of, held by or under the control of the Bolloré group (‘the documents originating from the Bolloré group’).
178 First, the applicant submits that the contested decision has binding legal effects only in its regard and in regard to its company officers. By contrast, its shareholders, including the Bolloré group, who are not addressees of the contested decision, who are not referred to in Article 1 thereof and who have not been the subject of a separate decision based on Article 11(3) of Regulation No 139/2004, may refrain from complying with the order imposed by the contested decision.
179 Second, the applicant argues that the contested decision imposes on it an obligation the implementation of which was, from the outset, objectively and absolutely impossible to fulfil, in that it asks the applicant to obtain documents originating from the Bolloré group, one of its many shareholders over whom it does not exercise control. As is apparent from the Commission’s authorisation of the applicant’s takeover by the Bolloré group on 24 April 2017, it is the Bolloré group which exercises control over the applicant and not vice versa. The applicant states, in that regard, that there is no rule of French law which allows a commercial company to require documents to be produced and, more generally, to exercise any kind of power of enforcement over its shareholders. In turn, nothing requires a reference shareholder to comply voluntarily with an order made to it by a third-party company, even where the latter holds a stake in its capital.
180 Third, the applicant considers that, by imposing on it an obligation which is impossible to fulfil, the Commission in fact obliges it to disregard its duty to cooperate and exposes it to a risk of infringement and of a fine pursuant to Article 14(1)(c) of Regulation No 139/2004.
181 Fourth, the applicant submits that the contested decision is vitiated by misuse of powers in that, notwithstanding the fact that it is the addressee of that decision, the Commission’s objective is to obtain indirectly documents originating from the Bolloré group. According to the applicant, the contested decision deprives the Bolloré group of its right to effective judicial protection, enshrined in Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’) and in Articles 6 and 13 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (‘ECHR’).
182 The Commission disputes the applicant’s line of argument.
183 As a preliminary point, it should be recalled that, according to case-law, the principle that ‘no one is obliged to do the impossible’ is among the general principles of EU law (see judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission , Commission v Scuola Elementare Maria Montessori and Commission v Ferracci , C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraph 79 and the case-law cited).
184 In that regard, as is apparent from case-law, any procedural or other difficulties in regard to the implementation of a measure cannot have any influence on the lawfulness of that measure. However, the Commission may not impose, by a decision, which would then be invalid, an obligation whose implementation would, from the beginning, be impossible in objective and absolute terms (see judgment of 17 June 1999, Belgium v Commission , C‑75/97, EU:C:1999:311, paragraph 86 and the case-law cited).
185 Such an impossibility exists only if two cumulative conditions are satisfied, namely, first, the difficulties relied on are real and, second, there are no alternative methods of implementation (see, to that effect, judgment of 6 November 2018, Scuola Elementare Maria Montessori v Commission , Commission v Scuola Elementare Maria Montessori and Commission v Ferracci , C‑622/16 P to C‑624/16 P, EU:C:2018:873, paragraphs 91, 92 and 96 and the case-law cited).
186 In addition, it should be recalled that, according to settled case-law, an undertaking which is being investigated is subject to an obligation to cooperate actively, which implies that it must make available to the Commission all information relating to the subject matter of the investigation (see, by analogy, judgment of 9 April 2019, Qualcomm and Qualcomm Europe v Commission , T‑371/17, not published, EU:T:2019:232, paragraph 119 and the case-law cited).
187 In the present case, it must be observed that Article 2 of the contested decision states that the addressee of that decision is ‘Vivendi SE’.
188 Point I(1) of the annex to the contested decision provides that, ‘for the purposes of the … request for information, “Lagardère” shall mean Lagardère S.A. [and] “Vivendi” shall mean Vivendi SE and the Bolloré Group’. Point I(2) of that annex provides inter alia that ‘the term “Document(s)” means all computer files in the possession of, held by or under the control of Vivendi’, that is to say, the applicant and the Bolloré group.
189 Furthermore, recital 7 of the contested decision states that ‘the documents and communications concerned relate to the implementation of operational synergies … that may have been influenced by Vivendi executives or by its main shareholder the Bolloré group’.
190 The applicant claims that it was impossible for it to comply with the contested decision as regards the documents originating from the Bolloré group, since it does not have any control or exercise any power of enforcement over that group, which is one of its shareholders.
191 However, there is nothing to support the view that such an impossibility to implement the contested decision existed when the obligation in question first arose. The applicant has not put forward any evidence capable of supporting the view that the obligation imposed by the contested decision was, from the beginning, impossible to fulfil in objective and absolute terms within the meaning of the case-law cited in paragraph 184 above.
192 Moreover, as the applicant itself concedes in response to the measures of organisation of procedure adopted by the Court on 2 April 2025, it implemented the obligation under the contested decision to provide the Commission with the documents originating from the Bolloré group, thus confirming that it was possible for it to implement the contested decision. Indeed, the applicant states that it sent all the documents requested to the Commission, with the exception of documents covered by legal professional privilege or by the confidentiality of journalistic sources, or documents relating to the private life of the persons concerned.
193 The Commission confirms that, in the light of the email from the applicant’s legal counsel of 6 February 2024 and the accompanying report submitted by its counsel, the applicant was able to collect and submit documents originating from the Bolloré group, and therefore the implementation of the contested decision, as far as concerns those documents, renders any line of argument based on an alleged impossibility redundant.
194 In that context, it must be observed that the two parties agree that the applicant complied with its duty to cooperate actively, as is apparent from the case-law cited in paragraph 186 above, because it implemented its obligation under the contested decision also to hand over to the Commission the documents originating from the Bolloré group.
195 However, the applicant claims that the ‘voluntary’ handover by the Bolloré group of the documents in its possession, made in view of the periodic penalty payment decision adopted by the Commission against it on 24 January 2024 and given the risk of new decisions imposing fines or periodic penalty payments being adopted if the contested decision was not implemented, is irrelevant to the assessment of the fourth plea in law. According to the applicant, for the purposes of assessing that plea, the sole question is whether it was impossible for it, when the contested decision was adopted, to comply with the obligation imposed on it, and not whether it was absolutely impossible for the documents covered by the contested decision to be handed over subsequently, for example, following an event or an external, later and unforeseeable decision adopted by a third party, over which it did not exercise any control as a matter of fact or of law.
196 It must be stated that the fact that the applicant managed to comply with the obligation, arising from the contested decision, to collect and provide to the Commission the documents originating from the Bolloré group shows that that obligation was not, from the beginning, impossible to fulfil in objective and absolute terms.
197 As the Commission observes, according to the case-law, the impossibility of implementing an obligation arising from a decision cannot invalidate that decision where that impossibility becomes apparent only at the implementation stage of that obligation. It follows from the case-law cited in paragraph 184 above that any procedural or other difficulties in regard to the implementation of the contested measure cannot have any influence on the lawfulness of that measure.
198 Accordingly, it must be observed, as the Commission notes, that, even if the applicant had not succeeded in obtaining documents originating from the Bolloré group, that would not necessarily mean that the obligation arising from the request for information was, from the beginning, impossible to fulfil in objective and absolute terms within the meaning of the case-law cited in paragraph 184 above.
199 It follows from the foregoing that the applicant has not demonstrated that the obligation, arising from the contested decision, to hand over to the Commission the documents originating from the Bolloré group was, from the outset, objectively and absolutely impossible to fulfil.
200 That conclusion cannot be called into question by the applicant’s argument set out in paragraph 181 above, to the effect that the contested decision is vitiated by misuse of powers because its objective is to obtain indirectly documents originating from the Bolloré group and to deprive that group of its right to effective judicial protection.
201 In that regard, it should be recalled that, according to case-law, the infringement of the rights of the defence constitutes a subjective unlawful act by its very nature, which must therefore be relied upon by the person concerned himself. Thus, the infringement of a subjective right can be relied upon only by the person whose right has allegedly been infringed, and not by third parties (see judgment of 4 May 2022, CRIA and CCCMC v Commission , T‑30/19, EU:T:2022:266, paragraphs 87 and 88 (not published) and the case-law cited).
202 Thus, it must be observed that the applicant only has an interest in bringing proceedings in order to secure the observance of its own procedural rights. Since the applicant has no interest in bringing proceedings in order to secure the observance of the Bolloré group’s rights of defence, the claim of infringement of those rights is inadmissible in so far as it is made by the applicant (see, to that effect, judgment of 12 May 2011, Région Nord-Pas-de-Calais and Communauté d’agglomération du Douaisis v Commission , T‑267/08 and T‑279/08, EU:T:2011:209, paragraph 77 and the case-law cited).
203 In any case, the applicant has not demonstrated, on the basis of objective, relevant and consistent evidence, that the Commission used its powers to adopt a measure for a purpose other than that for which they were conferred on it, since, first, Article 11(1) of Regulation No 139/2004 allows it to request all necessary information to carry out the duties assigned to it by that regulation (see paragraphs 123 and 124 above) and, second, the Commission could reasonably assume, on the date of the contested decision, that disclosure of the documents in the possession of the Bolloré group could help it to determine whether the suspected infringements had taken place (see paragraphs 267 to 269 below).
204 In the light of the foregoing considerations, the fourth plea in law must be rejected.
The fifth plea in law, alleging an infringement of the principle of proportionality
205 The fifth plea in law, by which the applicant claims that the contested decision infringes the principle of proportionality, is divided into two parts, alleging, first, that the documents requested have no connection with the presumed infringement and, second, that the order laid down imposes a disproportionate workload on the applicant.
Preliminary observations
206 It should be recalled that the principle of proportionality, which is one of the general principles of EU law, requires that measures adopted by the institutions do not exceed the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued (see judgment of 12 July 2001, Jippes and Others , C‑189/01, EU:C:2001:420, paragraph 81 and the case-law cited).
207 According to settled case-law, an undertaking which is being investigated is subject to an obligation to cooperate actively, which implies that it must make available to the Commission all information relating to the subject matter of the investigation (see judgment of 9 April 2019, Qualcomm and Qualcomm Europe v Commission , T‑371/17, not published, EU:T:2019:232, paragraph 119 and the case-law cited).
208 The point should be made, however, that the Commission’s exercise of that power is subject to observance of, inter alia, the principle of proportionality. Indeed, the obligation imposed on an undertaking to supply information should not be a burden on that undertaking which is disproportionate to the needs of the investigation (see judgment of 9 April 2019, Qualcomm and Qualcomm Europe v Commission , T‑371/17, not published, EU:T:2019:232, paragraph 120 and the case-law cited).
209 Nevertheless, the mere fact that a request for information involves a significant workload for an undertaking is not sufficient per se to establish that it is disproportionate in relation to the needs of the investigation relating to, inter alia, the presumed infringements which the Commission intends to investigate and the circumstances of the procedure in question (see judgment of 9 April 2019, Qualcomm and Qualcomm Europe v Commission , T‑371/17, not published, EU:T:2019:232, paragraph 121 and the case-law cited).
210 Furthermore, as observed in paragraph 75 above, the Commission cannot be required, before requesting any information, to be familiar with the content of the requested documents and their relative importance for the investigation.
211 As is apparent from the case-law cited in paragraph 154 above, having regard to the broad powers of investigation conferred on the Commission by Regulation No 139/2004, it is for the Commission to decide whether a particular item of evidence is necessary to enable it to bring to light an infringement of the competition rules. Even if it already has evidence, or indeed proof, of the existence of an infringement, the Commission may legitimately take the view that it is necessary to request further information enabling it better to define the scope of the infringement, determine its duration or identify the circle of undertakings involved.
212 As recalled in paragraph 155 above, with regard to the judicial review exercised by the EU judicature of the Commission’s finding that an item of information is necessary, the Court of Justice has held that such necessity must be judged in relation to the purpose stated in the request for information, namely the suspected infringement which the Commission intends to investigate. The requirement that a correlation must exist between the request for information and the suspected infringement is satisfied if the Commission could reasonably suppose, at the time of the request, that the information may help it to determine whether the infringement has taken place.
213 Since the necessity of the information must be judged in relation to the purpose stated in the request for information, that purpose must be indicated with sufficient precision, otherwise it will be impossible to determine whether the information is necessary and the EU judicature will be prevented from exercising judicial review (see, by analogy, judgment of 10 March 2016, Schwenk Zement v Commission , C‑248/14 P, not published, EU:C:2016:150, paragraph 28 and the case-law cited).
214 It is in the light of those principles of case-law that the two parts of the fifth plea in law must be examined.
The first part of the fifth plea in law, alleging that the documents requested have no connection with the presumed infringement
215 The applicant claims that the scope of the contested decision greatly exceeds its purpose, namely to ‘allow the Commission to analyse whether the intervention and/or the consultation and/or the association of Vivendi in certain decisions taken by Lagardère may be regarded as the exercise of decisive influence by Vivendi’. In that regard, it puts forward nine complaints.
– The first complaint, relating to the choice of the relevant period
216 The applicant submits that the choice of the relevant period, a period of almost four years with a starting point of 1 January 2020, is arbitrary since no specific event occurred on that date.
217 The Commission disputes the applicant’s line of argument.
218 In that regard, it must be recalled that Regulation No 139/2004 tasks the Commission with ensuring that no concentration which has a European dimension is effected, in breach of Article 7 of that regulation, before being notified and authorised.
219 In the present case, it must be recalled that, in accordance with recital 6 of the contested decision, cited in paragraph 61 above, the purpose of the contested decision is to gather information to assess whether the applicant exercised decisive influence over Lagardère that could constitute a breach of the notification requirement and/or a breach of the standstill obligation and/or a failure to comply with the conditions and obligations associated with the decision of 9 June 2023 authorising the concentration.
220 Furthermore, it is apparent from the documents before the Court that the applicant’s first acquisition of a stake in Lagardère and the appointment to the management bodies of Lagardère of persons close to the person concerned mentioned in point II(5)(a) of the annex to the contested decision occurred in March 2020.
221 Accordingly, as is apparent from paragraph 168 above, it must be observed that the Commission could reasonably assume, on the date of the contested decision, that information from 1 January 2020 onwards could help it to determine whether an infringement had taken place, since that information would make it easier to gain a good understanding of all the events and of the context in which those events had occurred.
222 The first complaint of the first part of the fifth plea in law must therefore be rejected.
– The second complaint, relating to the designation of certain persons concerned and certain search terms
223 The applicant disputes the designation of the fifteen persons concerned by the contested decision, explaining that some of those persons have no connection with Lagardère or the concentration. In its view, the choice of the persons concerned appears to have been guided by the Commission’s intention to direct its request against public figures and symbolic leaders working for it and within the Bolloré group, in particular the person concerned mentioned in point II(5)(d) of the annex to the contested decision.
224 Furthermore, it submits that the choice to impose search terms as general as those set out in the first line of the table of search terms contained in point VII of the annex to the contested decision lacks any justification or objective statement of reasons in relation to the investigation.
225 The Commission disputes the applicant’s line of argument.
226 In the first place, it must be observed, as the Commission notes, that, although the applicant complains of the choice of fifteen persons concerned, it in fact puts forward specific arguments only regarding the person concerned mentioned in paragraph II(5)(d) of the annex to the contested decision.
227 More specifically, as the Commission observes, it must be observed that that person is covered by the contested decision as a member of the applicant’s supervisory board and the deputy managing director of the applicant’s controlling shareholder.
228 Thus, in view of the prominent role played by that person within the companies of the Vivendi group, it was reasonable to assume that some of the documents held by that person could enable the Commission to determine whether the suspected infringements had taken place.
229 In the second place, it must be observed, as the Commission notes, that the arrival of two people – who are referred to in the search terms set out in the first line of the table contained in point VII of the annex to the contested decision – on the management board of Lagardère coincided with key events in the applicant’s acquisition of Lagardère. Thus, one of those people was appointed for the first time to the supervisory board of Lagardère in March 2020, that is, shortly after the applicant began to purchase shares in Lagardère. The other was appointed on 16 February 2022 and tendered his resignation following the finalisation of the merger between the Lagardère groups and the applicant.
230 It was therefore reasonable for the Commission to assume that those search terms could enable it to determine whether the suspected infringements had taken place.
231 In the light of the foregoing considerations, it must be concluded that the Commission could reasonably assume, on the date of the contested decision, that the documents originating from the person concerned mentioned in paragraph 226 above and the documents containing the search terms mentioned in paragraph 229 above could enable it to determine whether the suspected infringements had taken place. Moreover, since specific arguments are not put forward in the application to challenge the designation of the other persons, that challenge must be dismissed as unsubstantiated.
232 The second complaint of the first part of the fifth plea in law must therefore be rejected.
– The third complaint, relating to the adoption of the decision of 27 October 2023
233 The applicant submits that the adoption of the decision of 27 October 2023 shows that the materials withdrawn from the scope of the request for information were not essential to the investigation and that the order imposed on it was disproportionate.
234 The Commission disputes the applicant’s line of argument.
235 In that regard, it is sufficient to state, as the Commission does, that it cannot be concluded on the basis of the adoption of the decision of 27 October 2023 that the order imposed on the applicant by the contested decision was disproportionate. On the contrary, it shows that the Commission acknowledged that the applicant was unable to access the data of the person mentioned in point II(5)(i) of the annex to the contested decision, on account of the current ‘hold separate’ situation between the applicant and one of its subsidiaries in the book publishing sector (see paragraphs 17 and 19 above).
236 The third complaint of the first part of the fifth plea in law must therefore be rejected.
– The fourth complaint, relating to the disclosure of all exchanges between certain persons
237 The applicant submits that the contested decision requires it to disclose all the documents exchanged between the persons referred to in point III(7)(a) to (c) of the annex to the contested decision for the entirety of the relevant period, without any search term defined in relation to the purpose of the investigation, which necessarily entails materials going beyond the purpose of the investigation being disclosed to the Commission.
238 The Commission disputes the applicant’s line of argument.
239 In the present case, it must be observed that, in accordance with point III(7)(a) to (c) of the annex to the contested decision, the Commission asked the applicant to provide it with all the documents exchanged between four specific people for the entirety of the relevant period.
240 In that regard, it must be observed that the applicant’s argument that it is disproportionate to require it to provide all the exchanges between those four people cannot establish an infringement of the principle of proportionality, since the context of an item of information may make that information easier to understand that information and clarify its relevance for the purposes of the investigation.
241 Furthermore, as the Commission notes, the fact that the Commission requested all the exchanges concerning just four people and not all the persons concerned shows that it narrowed the scope of the request in so far as possible in order to access the documents necessary in the light of the purpose of the investigation, that is to say, the documents enabling it to determine whether the suspected infringements had taken place.
242 Moreover, the applicant has not shown that the figure of ‘tens of thousands of documents’ which, by its own estimate, represents the number of documents meeting the search criteria of the contested decision would constitute a disproportionate burden as compared with the figure of ‘several hundred thousand documents’ which it provided, by its own admission in paragraph 96 of the application, in the context of the examination of the concentration.
243 In the light of the foregoing considerations, it must be concluded that the Commission could reasonably suppose, on the date of the contested decision, that the communication of all the exchanges between the persons referred to in paragraph 239 above could help it to determine whether the suspected infringements had taken place.
244 The fourth complaint of the first part of the fifth plea in law must therefore be rejected.
– The fifth complaint, relating to the choice of the search terms
245 The applicant considers that the contested decision requires it to apply some one hundred search terms to all the professional and/or personal communication tools of the persons concerned, without specifying how those terms were chosen. In that regard, it takes the view that the contested decision does not contain a specific statement of reasons to justify the choice of each of those search terms and their combination, that much of the information held by it may correspond to each of those search terms without being connected to the subject matter of the Commission’s investigation, that none of the research terms is restricted in relation to the period of the exchanges and the date of the documents to which the Commission refers, and that some of the search terms may reveal matters relating to the private life of the persons concerned, their political or religious beliefs and the identity of, or the content of exchanges with, journalistic sources.
246 It also argues that applying the search terms to the communication tools covered by the contested decision leads to outlier results having no bearing on the subject matter of the investigation, and that it is disproportionate to ask it, first, to apply, over a period of almost four years, combinations of search terms which refer to one-off events, such as the appearance of articles in Paris Match and the hiring or the dismissal of persons mentioned by name and, second, to apply the search terms linked to hirings or dismissals for the entirety of the relevant period.
247 The Commission disputes the applicant’s line of argument.
248 As a preliminary point, it should be recalled that, under Article 21 of the Statute of the Court of Justice of the European Union and Article 76(d) of the Rules of Procedure, each application is required to state the subject matter of the proceedings and set out a summary of the pleas in law on which the application is based. According to settled case-law, for an action to be admissible the basic matters of fact and law relied on must be indicated, at least in summary form, coherently and intelligibly in the application itself. Whilst the body of the application may be supported and supplemented on specific points by references to extracts from documents annexed thereto, a general reference to other documents, even those annexed to the application, cannot make up for the absence of the essential arguments in law which, in accordance with the abovementioned provisions, must appear in the application. Furthermore, it is not for the Court to seek and identify in the annexes the pleas and arguments on which it may consider the action to be based, since the annexes have a purely evidential and instrumental function (see judgment of 24 May 2012, MasterCard and Others v Commission , T‑111/08, EU:T:2012:260, paragraph 68 and the case-law cited).
249 Here, as far as concerns the search terms, it must be observed that the applicant’s reference to the summary table of the criticisms contained in Annex A.13 must be rejected as inadmissible, because it does not comply with the requirements under Article 76(d) of the Rules of Procedure. Thus, only the terms mentioned and criticised in the application can be validly disputed.
250 As for the search terms referred to in paragraph 161 of the application, it must be stated that those terms are appropriate to identify documents potentially relevant for the purposes of the Commission’s investigation.
251 Specifically, with regard to the term mentioned in the first line of the table contained in point VII of the annex to the contested decision, as is apparent from paragraphs 220 and 229 above, that term refers to a person whose arrival on the management board of Lagardère coincides with key events of the merger between the applicant and Lagardère. That person was appointed for the first time to Lagardère’s supervisory board in March 2020, which corresponds to the period during which the applicant began to purchase shares in Lagardère. Furthermore, that person has long-standing personal ties to the person concerned mentioned in point II(5)(a) of the annex to the contested decision.
252 With regard to the search term ‘Europe’, referred to in the third line of the table contained in point VII of the annex to the contested decision, as the Commission notes, that term is a short-form designation for ‘Europe 1’, Lagardère’s radio station, which was mentioned in a report by the Sénat (Senate, France) and in many press articles as an entity of Lagardère over which the Bolloré group exercised influence.
253 As for the search term ‘Couv* ET Z’, referred to in the ninth line of the table contained in point VII of the annex to the contested decision, it must be stated that that term on its own does not fall within the scope of the contested decision. That term must be accompanied, as a minimum, by the terms ‘PM’ or ‘Paris Match’ to fall within that scope. Furthermore, as the Commission observes, it seeks, by using that term, to obtain information relating to the Paris Match cover of 23 September 2021 about a person close to the person concerned mentioned in point II(5)(a) of the annex to the contested decision. Thus, it was reasonable and proportionate for the Commission to assume that the combination of those search terms could enable it to determine whether the suspected infringements had taken place.
254 As regards the search term ‘Presbourg’, referred to in the second line of the table contained in point VII of the annex to the contested decision, as the Commission notes, it is the name of the street in which Lagardère has its historic headquarters in Paris (France). In addition, some media sources reported weekly meetings at Lagardère’s headquarters attended by ‘key figures at Vivendi’ to approve Paris Match covers, which was not the practice prior to 2021. Accordingly, it was reasonable for the Commission to take the view that that term had been used to refer to Lagardère or to refer to the location of certain meetings between the applicant and Lagardère the content of which could be relevant to the investigation with a view to determining whether the suspected infringements had taken place.
255 With regard to the search term ‘Couv ET Paris Match’, referred to in the sixth line of the table contained in point VII of the annex to the contested decision, it is apparent from paragraph 254 above that certain media sources reported weekly meetings at Lagardère’s headquarters attended by ‘key figures at Vivendi’ to approve Paris Match covers. Thus, it was reasonable and proportionate for the Commission to request the communication of documents relating to the decisions concerning the Paris Match covers for the relevant period.
256 As for the search terms referred to in lines 35, 43, 44 and 45 of the table contained in point VII of the annex to the contested decision, they concern journalists or columnists of entities belonging to the Vivendi group who are now also present on Europe 1 and who have been the subject of many discussions about possible synergies between Vivendi and Lagardère’s radio station Europe 1, synergies to which recital 7 of the contested decision refers. Thus, since those person were at the heart of the synergies between the applicant and Lagardère which occurred before the Commission authorised the merger of the two groups, it was reasonable and proportionate for the Commission to request the disclosure of the documents corresponding to those search terms in order to determine whether the suspected infringements had taken place.
257 In the light of the foregoing considerations, it must be concluded that the applicant has not demonstrated that the disputed search terms are disproportionate.
258 Moreover, with regard to the applicant’s line of argument that there is no specific statement of reasons to justify the choice of each of the search terms, it must be rejected in accordance with the analysis conducted in paragraphs 74 to 79 above.
259 The fifth complaint of the first part of the fifth plea in law must therefore be rejected.
– The sixth complaint, relating to the disclosure of the documents belonging to the person concerned mentioned in point II(5)(o) of the annex to the contested decision
260 The applicant argues that the contested decision requires it to provide documents belonging to the person concerned mentioned in point II(5)(o) of the annex to the contested decision, the chair of one of its subsidiaries in the magazine sector, right from the start of the relevant period, that is to say, from 1 January 2020. However, the applicant did not acquire control of that subsidiary until 1 June 2021. Thus, in the applicant’s view, it is disproportionate to request documents exchanged within that subsidiary over the period prior to that date, since that entity had at that time no connection with it or with Lagardère.
261 The Commission disputes the applicant’s line of argument.
262 In that regard, and in the light of the case-law cited in paragraphs 154 and 211 above, it must be stated that, having regard to the broad powers of investigation conferred on the Commission by Regulation No 139/2004, the Commission could deem it necessary to request the documents belonging to the person concerned mentioned in point II(5)(o) of the annex to the contested decision, the chair of a subsidiary of the applicant in the magazine sector, even before the applicant acquired control of that subsidiary on 1 June 2021.
263 The Commission could reasonably assume, on the date of the contested decision, that information from 1 January 2020 onwards could help it to determine whether the suspected infringements had taken place, in particular because that information would make it easier to gain a good understanding of all the events and the context in which those events had occurred.
264 It follows that the sixth complaint of the first part of the fifth plea in law must be rejected.
– The seventh complaint, relating to the disclosure of the documents originating from the Bolloré group
265 The applicant submits that the contested decision requires it to hand over to the Commission the documents originating from the Bolloré group, even though the latter is not concerned by the formal investigation opened by the Commission, which concerns the conditions in which the applicant acquired early control of Lagardère.
266 The Commission disputes the applicant’s line of argument.
267 In this regard, it is sufficient to recall that recital 7 of the contested decision, cited in paragraph 61 above, states that the documents concerned relate inter alia to certain decisions by Lagardère ‘that may have been influenced by Vivendi executives or by its main shareholder the Bolloré group’.
268 Furthermore, as observed in paragraphs 84 and 167 above, the decision of 9 June 2023 authorising the concentration and the notification form for the merger submitted by the applicant to the Commission consider it established that the Bolloré group and Vivendi constitute a single undertaking for the purposes of competition law.
269 Thus, the Commission could reasonably assume, at the date of the contested decision, that the disclosure of the documents in possession of the Bolloré group could help it to determine whether the suspected infringements had taken place, since certain decisions taken by Lagardère may have been influenced by Vivendi executives or by its main shareholder the Bolloré group.
270 The seventh complaint of the first part of the fifth plea in law must therefore be rejected.
– The eighth complaint, relating to the obligation to hand over an entire conversation when one message falls within the scope of the request for information
271 The applicant observes that if a document in the form of a message exchanged by telephone or via an instant messaging application falls within the scope of the request for information, the contested decision requires it to provide the whole conversation over the entirety of the relevant period. According to the applicant, such a requirement goes beyond what is necessary for the needs of the investigation since, on the pretext of the existence of a single relevant message, the Commission requests access to all the conversations of the persons concerned, including on their personal telephones, for the entirety of the relevant period. The Commission could, for example, have requested the communication only of the messages exchanged within the twenty-four hours which preceded or followed the relevant message.
272 The Commission disputes the applicant’s line of argument.
273 In that regard, it is sufficient to observe that, as is apparent from paragraph 240 above, the obligation to hand over all the exchanges between certain persons where a single exchange corresponds to the search terms specified in the contested decision cannot establish an infringement of the principle of proportionality, since the context of an item of information may make it easier to understand and clarify its relevance for the purposes of the investigation.
274 The eighth complaint of the first part of the fifth plea in law must therefore be rejected.
– The ninth complaint, relating to interference with the private life of the persons concerned and with the protection of journalistic sources
275 The applicant submits that the contested decision requires it to hand over to the Commission materials relating to the private life of the persons concerned as well as information which would undermine the protection of journalistic sources. In the applicant’s view, besides the infringements of the right to the protection of private life and of French labour law that such an order entails, that extension of the scope of the documents seized to outside the professional sphere is not necessary for the needs of the investigation and, therefore, undermines the principle of proportionality.
276 The Commission disputes the applicant’s line of argument.
277 In that regard, it must be observed that, by the ninth complaint, the applicant essentially reiterates the arguments raised in the context of the second part of the sixth plea in law, alleging interference with the protection of journalistic sources, and of the seventh plea in law, alleging a lack of adequate safeguards to protect the right to respect for private life. Therefore, for the same reasons as those put forward as part of the examination of the second part of the sixth plea in law (see paragraphs 340 to 381 below) and of the seventh plea in law (see paragraphs 382 to 460 below), the ninth complaint of the first part of the fifth plea in law must be rejected.
278 In the light of the foregoing considerations, the first part of the fifth plea in law must be rejected.
The second part of the fifth plea in law, alleging that the contested decision imposes a disproportionate burden on the applicant
279 The applicant claims that the contested decision imposes on it an excessive burden having regard to the needs of the investigation, by requiring it to carry out an extensive search internally at several different sites of its undertaking. In responding to it, the applicant had to deploy dedicated human and technical resources and engage the services of two third-party undertakings. According to the applicant, several tens of thousands of documents satisfied the search criteria of the contested decision.
280 Furthermore, according to the applicant, the deadline of approximately one month to comply with the order, a deadline imposed by the contested decision and initially set as 27 October 2023, was impracticable and did not allow to ensure that the documents provided were complete, accurate and undistorted.
281 The applicant states that there was no requirement of speed, since the opening of the investigation was publicly announced as early as June 2023, later formalised by the letter of 25 July 2023 on the opening of the formal investigation procedure, and it therefore had to retain, as it was required to do by that letter, documents that may be relevant regardless of the deadline for reply that may be imposed on it.
282 Lastly, according to the applicant, the contested decision imposes on it a workload disproportionate to the needs of the investigation, because that decision covers, in part, materials already in the possession of the Commission, as they had been handed over as part of the examination of the takeover of Lagardère.
283 The Commission disputes the applicant’s line of argument.
284 As a preliminary point, reference must be made to the case-law cited in paragraphs 206 and 208 above.
285 In the present case, the applicant asserts that the workload entailed by responding to the contested decision is disproportionate, without however substantiating such a claim.
286 It is true that it is not in dispute that the volume of information requested under the contested decision is significant and vast in scope, and therefore responding to that request entailed a considerable workload for the applicant.
287 However, as is apparent from the case-law recalled in paragraph 209 above, it cannot be concluded that the applicant’s workload is disproportionate in the light of the needs of the investigation associated with the putative infringements which the Commission intends to investigate.
288 First, it must be recalled that, in accordance with recital 6 of the contested decision, cited in paragraph 61 above, the purpose of the contested decision is to gather information in order to assess whether Vivendi exercised decisive influence over Lagardère that could constitute a breach of the notification requirement and/or a breach of the standstill obligation and/or a failure to comply with the conditions and obligations associated with the decision of 9 June 2023 authorising the concentration.
289 In recital 7 of the contested decision, which is also cited in paragraph 61 above, the Commission asserts that the information requested is essential to enable it to analyse whether the intervention and/or the consultation and/or the association of the applicant in certain decisions taken by Lagardère may be regarded as the exercise of decisive influence by the applicant. Moreover, it lists the conduct by the applicant that could constitute one or more infringements of the obligations under Regulation No 139/2004 which it intends to investigate.
290 The examination of the suspected infringements forming the subject matter of the investigation thus necessitates complex analyses of a wealth of data, the majority of which are accessible only to the applicant.
291 The scope of the contested decision and the objective of the investigation can therefore justify a significant volume of information being handed over.
292 Second, none of the applicant’s arguments is capable of demonstrating that the contested decision would go beyond what is necessary in the light of the objective of the investigation.
293 Firstly, as the Commission observes, the requirement of speed justified the deadline of 27 October 2023, set by the decision of 19 September 2023 (see paragraph 101 above).
294 It must also be borne in mind that, as is apparent from paragraphs 19 and 22 above, the deadline initially set by the decision of 19 September 2023 was extended twice. Specifically, first of all, by Article 2 of the decision of 27 October 2023, the deadline set as 27 October 2023 was extended until 1 December 2023. Next, by Article 1 of the decision of 24 January 2024, the deadline set as 1 December 2023 was extended until 7 February 2024.
295 However, the applicant’s line of argument in the second part of the fifth plea in law is focussed solely on the initial deadline, set as 27 October 2023 by the decision of 19 September 2023, without taking into account, inter alia, the extension of that deadline until 1 December 2023 by the decision of 27 October 2023 or the extension of the deadline until 7 February 2024 by the decision of 24 January 2024. The applicant’s line of argument regarding the deadline set by the contested decision must therefore be rejected.
296 Secondly, as is apparent from paragraph 242 above, the applicant has not shown that the workload imposed by the contested decision was disproportionate.
297 Moreover, it must be stated that the applicant’s argument that the contested decision concerns, in part, materials already in the possession of the Commission, as they had been handed over as part of the examination of the applicant’s takeover of Lagardère, is wholly unsubstantiated, such that it must be rejected as not satisfying the requirements of clarity and precision laid down in Article 76(d) of the Rules of Procedure.
298 It follows from the foregoing that the applicant has not shown that, in adopting the contested decision, the Commission had infringed the principle of proportionality.
299 The second part of the fifth plea in law must therefore be rejected as must, in consequence, the fifth plea in law in its entirety.
The sixth plea in law, alleging interference with the protection of journalistic sources
300 By its sixth plea in law, the applicant submits that the contested decision undermines the protection of journalistic sources, guaranteed by Article 11 of the Charter and Article 10 ECHR. The present plea is divided into two parts: the first raises a plea of illegality in respect of Article 11(3) of Regulation No 139/2004 and the second alleges interference with the protection of journalistic sources.
Preliminary observations
301 Article 11 of the Charter, entitled ‘Freedom of expression and information’, provides, in paragraph 1 thereof, that everyone has the right to freedom of expression, which includes the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.
302 In accordance with Article 52(3) of the Charter, the rights contained therein have the same meaning and scope as the corresponding rights guaranteed by the ECHR, although that does not preclude EU law from affording more extensive protection (see judgment of 4 October 2024, Real Madrid Club de Fútbol , C‑633/22, EU:C:2024:843, paragraph 51 and the case-law cited).
303 Therefore, when interpreting Article 11 of the Charter, the Court of Justice must take account of the corresponding rights guaranteed by Article 10 ECHR, as interpreted by the European Court of Human Rights (‘the ECtHR’), as the minimum threshold of protection (see judgment of 4 October 2024, Real Madrid Club de Fútbol , C‑633/22, EU:C:2024:843, paragraph 52 and the case-law cited).
304 Article 10 ECHR, entitled ‘Freedom of expression’, reads thus:
‘1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.’
305 It should be borne in mind that, according to the case-law of the Court of Justice, the fundamental right enshrined in Article 11 of the Charter constitutes one of the essential foundations of a pluralist, democratic society, and is one of the values on which, under Article 2 TEU, the European Union is founded (see, to that effect, judgment of 21 December 2016, Tele2 Sverige and Watson and Others , C‑203/15 and C‑698/15, EU:C:2016:970, paragraph 93).
306 As freedom of expression constitutes one of the essential foundations of a democratic society, the ECtHR has always subjected the safeguards for respect of freedom of expression in cases under Article 10 ECHR to special scrutiny. The safeguards to be afforded to the press are of particular importance, and the protection of journalistic sources is one of the cornerstones of freedom of the press. Without such protection, sources may be deterred from assisting the press in informing the public about matters of public interest. As a result, the vital public-watchdog role of the press may be undermined, and the ability of the press to provide accurate and reliable information may be affected adversely (ECtHR, 25 May 2021, Big Brother Watch and Others v. the United Kingdom , CE:ECHR:2021:0525JUD005817013, § 442).
307 Orders to disclose sources potentially have a detrimental impact not only on the source, whose identity may be revealed, but also on the newspaper or other publication against which the order is directed, whose reputation may be negatively affected in the eyes of future potential sources by the disclosure; and on members of the public, who have an interest in receiving information imparted through anonymous sources. There is, however, a fundamental difference between the authorities ordering a journalist to reveal the identity of his or her sources, and the authorities carrying out searches at a journalist’s home and workplace with a view to uncovering his or her sources. The latter, even if unproductive, constitutes a more drastic measure than an order to divulge a source’s identity, since investigators who raid a journalist’s workplace have access to all the documentation held by the journalist (ECtHR, 25 May 2021, Big Brother Watch and Others v. the United Kingdom , CE:ECHR:2021:0525JUD005817013, § 443).
308 An interference with the protection of journalistic sources cannot be compatible with Article 10 ECHR unless it is justified by an overriding requirement in the public interest. Furthermore, any interference with the right to protection of journalistic sources must be attended with legal procedural safeguards commensurate with the importance of the principle at stake. First and foremost among these safeguards is the guarantee of review by a judge or other independent and impartial decision-making body with the power to determine whether a requirement in the public interest overriding the principle of protection of journalistic sources exists prior to the handing over of such material and to prevent unnecessary access to information capable of disclosing the sources’ identity if it does not (ECtHR, 25 May 2021, Big Brother Watch and Others v. the United Kingdom , CE:ECHR:2021:0525JUD005817013, § 444).
309 Given the preventive nature of such review, the judge or other independent and impartial body must be in a position to carry out this weighing of the potential risks and respective interests prior to any disclosure and with reference to the material that it is sought to have disclosed so that the arguments of the authorities seeking the disclosure can be assessed properly. The decision to be taken should be governed by clear criteria, including whether a less intrusive measure can suffice to serve the overriding public interests established. It should be open to the judge or other authority to refuse to make a disclosure order or to make a limited or qualified order so as to protect sources from being revealed, whether or not they are specifically named in the withheld material, on the grounds that the communication of such material creates a serious risk of compromising the identity of journalists’ sources. In situations of urgency, a procedure should exist to identify and isolate, prior to the exploitation of the material by the authorities, information that could lead to the identification of sources from information that carries no such risk (ECtHR, 25 May 2021, Big Brother Watch and Others v. the United Kingdom , CE:ECHR:2021:0525JUD005817013, § 445).
The first part of the sixth plea in law, alleging the illegality of Article 11(3) of Regulation No 139/2004
310 By the first part of the sixth plea in law, the applicant raises a plea of illegality, under Article 277 TFEU, against Article 11(3) of Regulation No 139/2004, arguing that the latter provision infringes Article 10 ECHR by not providing for specific ex ante judicial proceedings allowing for an independent judicial review before the adoption of a decision ordering that materials be handed over which may be covered by the protection of journalistic sources. In its reply, the applicant adds that the legal remedies provided for in Articles 278 and 279 TFEU are not sufficient to remedy that shortcoming.
311 The Commission, supported by the Council, disputes the applicant’s line of argument.
312 As a preliminary point, under Article 277 TFEU, any party may, in proceedings in which an act of general application adopted by an institution, body, office or agency of the European Union is at issue, plead the grounds specified in the second paragraph of Article 263 TFEU in order to invoke before the Court of Justice of the European Union the inapplicability of that act.
313 Article 277 TFEU gives expression to a general principle conferring upon any party to proceedings the right to challenge incidentally, with a view to obtaining the annulment of a measure against which that party may bring an action, the validity of previous acts of the institutions which form the legal basis of the contested measure, if that party was not entitled under Article 263 TFEU to bring a direct action challenging those acts by which it was thus affected without having been in a position to ask that they be declared void. The general measure claimed to be illegal must be applicable, directly or indirectly, to the issue with which the action is concerned and there must be a direct legal connection between the contested individual decision and the general measure in question (see, to that effect, 8 September 2020, Commission and Council v Carreras Sequeros and Others , C‑119/19 P and C‑126/19 P, EU:C:2020:676, paragraphs 67 to 69; see also, to that effect, judgment of 16 September 2013, Mamoli Robinetteria v Commission , T‑376/10, EU:T:2013:442, paragraphs 48 and 49 and the case-law cited).
314 In the present case, it is true that, as the applicant observes, in accordance with the case-law of the ECtHR cited in paragraphs 306 to 309 above, an interference with the protection of journalistic sources must be attended with legal procedural safeguards commensurate with the importance of the principle at stake, first and foremost among which is the guarantee of a review of a preventive nature in accordance with the rules and procedures laid down by that case-law.
315 As the Council observes, the complete system of legal remedies and procedures, laid down by primary law, offers the procedural safeguards required by the case-law of the ECtHR referred to in paragraphs 306 to 309 above, and in particular the guarantee of review by a judge or other independent and impartial decision-making body with the power to determine whether a requirement in the public interest overriding the principle of protection of journalistic sources exists prior to the handing over of the materials requested and to prevent unnecessary access to information capable of disclosing the sources’ identity if it does not.
316 In that regard, it should be recalled that the FEU Treaty has, by Articles 263 and 277 thereof, on the one hand, and Article 267 thereof, on the other, established a complete system of legal remedies and procedures designed to ensure judicial review of the legality of acts of the institutions, and has entrusted such review to the EU judicature (see judgment of 28 April 2015, T & L Sugars and Sidul Açúcares v Commission , C‑456/13 P, EU:C:2015:284, paragraph 45 and the case-law cited).
317 The EU legislature cannot, by the adoption of secondary legislation, create a remedy not provided for by the FEU Treaty, since that Treaty has established a complete system of legal remedies and procedures designed to ensure judicial review of the legality of acts of the institutions, and has entrusted such review to the Courts of the European Union (see judgment of 5 September 2024, ECHA , C‑256/23 and C‑290/23, EU:C:2024:683, paragraph 59 and the case-law cited).
318 As the Council notes, since Article 11 of the Charter, as interpreted taking account of the corresponding rights guaranteed in Article 10 ECHR, requires that there must be a legal remedy which satisfies certain criteria, that remedy is to be found in, and must be consistent with, the system of legal remedies established by the Treaties.
319 The existence of such a legal remedy within the complete system of legal remedies established by the Treaties has been confirmed by the case-law on legal professional privilege.
320 It is thus apparent from the judgment of 18 May 1982, AM & S Europe v Commission (155/79, EU:C:1982:157, paragraph 32), that the complete system of legal remedies offers adequate protection in respect of legal professional privilege. Specifically, the Court of Justice found in that judgment that, first, the fact that by virtue of Article 185 of the EEC Treaty (now Article 278 TFEU) any action brought by the undertaking concerned against decisions ordering the disclosure of documents allegedly covered by legal professional privilege did not have suspensory effect provided an answer to the Commission’s concern as to the effect of the time taken by the procedure before the Court of Justice on the efficacy of the supervision which the Commission is called upon to exercise in regard to compliance with the Treaty rules on competition. On the other hand, the interests of the undertaking concerned were safeguarded by the possibility existing under Articles 185 and 186 of the EEC Treaty (now Articles 278 and 279 TFEU), as well as under Article 83 of the Rules of Procedure, in the version thereof applicable at the time, of obtaining an order suspending the application of the decision which has been taken, or any other interim measure.
321 It therefore follows that the complete system of legal remedies guarantees the possibility of judicial review of a preventive nature before the Commission has access to information covered under legal professional privilege.
322 In particular, according to the case-law relating to the Commission’s powers of investigation as regards compliance with Articles 101 and 102 TFEU, which are applicable mutatis mutandis in the present case, where an undertaking relies on legal professional privilege for the purpose of opposing the seizure of a document in the course of an investigation, the decision whereby the Commission rejects that request produces legal effects for that undertaking, by bringing about a distinct change in its legal position. That decision in effect withholds from the undertaking the protection provided by EU law and is definitive in nature and independent of any final decision making a finding of an infringement of the competition rules (see, to that effect, judgment of 17 September 2007, Akzo Nobel Chemicals and Akcros Chemicals v Commission , T‑125/03 and T‑253/03, EU:T:2007:287, paragraph 46 and the case-law cited).
323 In that regard, it should be observed that the opportunity which the undertaking has to bring an action against a final decision establishing that competition rules have been infringed does not provide it with an adequate degree of protection of its rights. First, it is possible that the administrative procedure will not result in a decision finding that an infringement has been committed. Second, if an action is brought against that decision, it will not in any event provide the undertaking with the means of preventing the irreversible consequences which would result from improper disclosure of documents protected under legal professional privilege (see judgment of 17 September 2007, Akzo Nobel Chemicals and Akcros Chemicals v Commission , T‑125/03 and T‑253/03, EU:T:2007:287, paragraph 47 and the case-law cited).
324 It follows that the Commission's decision rejecting a request for protection of a specific document under legal professional privilege – and ordering, where appropriate, the production of the document in question – brings to an end a special procedure distinct from that enabling the Commission to rule on the existence of an infringement of the competition rules and thus constitutes an act capable of being challenged by an action for annulment, coupled, if need be, with a request for interim relief, seeking, inter alia, to suspend its operation until the Court has ruled on the action in the main proceedings. (judgment of 17 September 2007, Akzo Nobel Chemicals and Akcros Chemicals v Commission , T‑125/03 and T‑253/03, EU:T:2007:287, paragraph 48).
325 In that connection, having regard to the particular nature of the principle of legal professional privilege, the purpose of which is both to guarantee the full exercise of individuals’ rights of defence and to safeguard the requirement that any person must be able, without constraint, to consult his or her lawyer, the Court considers that the fact that the Commission reads the content of a confidential document is in itself a breach of this principle. The protection of legal professional privilege therefore goes beyond the requirement that information provided by an undertaking to its lawyer or the content of the advice given by that lawyer cannot be used against it in a decision which penalises a breach of the competition rules (judgment of 17 September 2007, Akzo Nobel Chemicals and Akcros Chemicals v Commission , T‑125/03 and T‑253/03, EU:T:2007:287, paragraph 86).
326 Protection under legal professional privilege also requires the Commission, once it has adopted its decision rejecting a request under that head, not to read the content of the documents in question until it has given the undertaking concerned the opportunity to refer the matter to the Court. In that regard, the Commission is bound to wait until the time limit for bringing an action against the rejection decision has expired before reading the contents of those documents. In any event, to the extent that such an action does not have suspensory effect, it is for the undertaking concerned to bring an application for interim relief seeking suspension of operation of the decision rejecting the request for legal professional privilege (see judgment of 17 September 2007, Akzo Nobel Chemicals and Akcros Chemicals v Commission , T‑125/03 and T‑253/03, EU:T:2007:287, paragraph 88 and the case-law cited).
327 In the present case, as noted in paragraph 16 above, on 18 October 2023 the Commission confirmed to the applicant that the documents which could reveal journalistic sources would enjoy special protection modelled on the procedure established to protect legal professional privilege. The implementation of that protection was reiterated in the letter of 6 December 2023 (see paragraph 21 above) and formalised in the decision of 24 January 2024 (see paragraph 22 above).
328 In the light of the case-law concerning legal professional privilege, recalled in paragraphs 320 and 322 to 326 above, which is applicable mutatis mutandis to the present case, it must be found that the complete system of legal remedies established by the Treaties provides for effective judicial protection, which respects all the procedural safeguards concerning the protection of journalistic sources required by the case-law of the ECtHR relating to Article 10 ECHR, the provision corresponding to Article 11 of the Charter.
329 That conclusion cannot be called into question by the arguments raised by the applicant in its reply.
330 First, the applicant claims that the procedures provided for in Articles 263, 278 and 279 TFEU are not ‘ ex ante ’ within the meaning required by the case-law of the ECtHR, since they can be ‘activated’ only after the Commission has adopted a request for information.
331 It must be recalled that, according to settled case-law, only measures which produce binding legal effects such as to affect the interests of an applicant by bringing about a distinct change in his or her legal position may be the subject of an action for annulment under Article 263 TFEU. In principle, a provisional measure intended to pave the way for the final decision is not therefore a challengeable act. However, according to case-law, acts adopted in the course of the preparatory proceedings which were themselves the culmination of a special procedure distinct from that intended to permit the Commission to take a decision on the substance of the case and which produce binding legal effects such as to affect the interests of an applicant, by bringing about a distinct change in his or her legal position, also constitute challengeable acts (see judgment of 17 September 2007, Akzo Nobel Chemicals and Akcros Chemicals v Commission , T‑125/03 and T‑253/03, EU:T:2007:287, paragraph 45 and the case-law cited).
332 In the light of the case-law cited in paragraphs 322 and 323 above, which is applicable by analogy to the present case, it must be observed that where an undertaking relies on the protection of journalistic sources for the purpose of opposing the seizure of a document in the context of a request for information under Article 11(3) of Regulation No 139/2004, the decision whereby the Commission rejects that request produces legal effects for that undertaking, by bringing about a distinct change in its legal position. That decision in effect withholds from the undertaking the protection provided by EU law and is definitive in nature and independent of any final decision making a finding of an infringement of the competition rules.
333 It follows that the decision by which the Commission rejects a request for protection of a particular document on the basis of the protection of journalistic sources – and orders, where appropriate, the production of the document in question – brings to an end a special procedure distinct from that enabling the Commission to rule on the existence of an infringement of the competition rules and thus constitutes an act capable of being challenged by an action for annulment, coupled, if need be, with a request for interim relief, seeking, inter alia, to suspend its operation until the Court has ruled on the action in the main proceedings.
334 Protection of journalistic sources also requires the Commission, once it has adopted its decision rejecting a request under that head, not to read the content of the documents in question until it has given the undertaking concerned the opportunity to refer the matter to the Court, and to wait until the time limit for bringing an action against the rejection decision has expired. In any event, to the extent that such an action does not have suspensory effect, it is for the undertaking concerned to bring an application for interim relief seeking suspension of operation of the decision rejecting the request for that protection.
335 Accordingly, the applicant’s argument that the procedures provided for in Articles 263, 278 and 279 TFEU are not ‘ ex ante ’ within the meaning required by the case-law of the ECtHR cannot succeed.
336 Second, the applicant submits that the conditions for the grant of suspension of operation or of other interim measures, in the context of interim proceedings, are different from the condition governing the protection of journalistic sources, namely the existence of a requirement in the public interest overriding the principle of protection of journalistic sources.
337 It must be observed, as the Council notes, that the condition relating to the balancing of the interests at stake, which is undertaken, where appropriate, by the judge hearing applications for interim measures, essentially corresponds to the legal criterion applicable to the assessment of materials covered by the protection of journalistic sources, which consists in determining whether there is a requirement in the public interest overriding the principle of protection of journalistic sources.
338 In the light of the foregoing considerations, the plea of illegality, under Article 277 TFEU, raised by the applicant against Article 11(3) of Regulation No 139/2004 cannot be upheld.
339 The first part of the sixth plea in law must therefore be rejected.
The second part of the sixth plea in law, alleging interference with the protection of journalistic sources
340 By the second part of the sixth plea in law, the applicant submits that the contested decision undermines the protection owed to journalistic sources, because it refers by name, amongst the persons concerned, to two journalists and covers their exchanges with journalists associated with the Vivendi group mentioned in the search terms of the contested decision.
341 Furthermore, the applicant observes that the Commission has itself acknowledged the need to protect journalistic sources, since, in the course of a telephone conversation on 18 October 2023 between the officials in charge of the investigation and the applicant’s legal counsel, the Commission stated that it was looking for a solution to address that issue identified by the applicant. This shows, in the applicant’s view, that the Commission was aware of the difficulties caused by the contested decision. However, according to the applicant, on the date on which this action was brought, the contested decision still required it to provide all those materials, failing which penalties would be imposed.
342 In its reply, the applicant notes that the contested decision does not contain any procedural safeguard concerning the protection of journalistic sources. Only after the present action was brought and by simple letter, the content of which was subsequently reproduced in the decision of 24 January 2024, did the Commission provide for those safeguards, which cannot have the effect of correcting retroactively the defects vitiating the contested decision.
343 The Commission disputes the applicant’s arguments.
344 As a preliminary point, it should be borne in mind that, since the conditions governing the admissibility of an action relate to the absolute bar to proceeding with an action, the Court must determine of its own motion whether the applicant has an interest in the annulment of the contested decision (see judgment of 21 December 2022, E. Breuninger v Commission , T‑525/21, EU:T:2022:835, paragraph 17 and the case-law cited).
345 According to case-law, an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in having the contested act annulled. Such an interest requires that the annulment of that act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it. The proof of such an interest, which is evaluated at the date on which the action is brought and which is an essential and fundamental prerequisite for any legal proceedings, must be adduced by the applicant (see judgment of 27 March 2019, Canadian Solar Emea and Others v Council , C‑236/17 P, EU:C:2019:258, paragraph 91 and the case-law cited).
346 The interest in bringing proceedings must, like the subject matter of the dispute, exist when that action is brought, failing which the action will be inadmissible. That subject matter of the action, like the interest in bringing proceedings, must continue until the final decision, failing which there will be no need to adjudicate, which presupposes that the action must be liable, if successful, to procure an advantage for the party bringing it (see, to that effect, judgment of 30 April 2020, Izba Gospodarcza Producentów i Operatorów Urządzeń Rozrywkowych v Commission , C‑560/18 P, EU:C:2020:330, paragraph 38 and the case-law cited).
347 It is true that an applicant’s interest in bringing proceedings does not necessarily disappear because the act challenged has ceased to have effect in the course of proceedings. The person concerned by that act may retain an interest in that act being annulled either in order to be restored to his original position or in order to induce the author of the contested act to make suitable amendments in the future, and thereby avoid the risk that the unlawfulness alleged in respect of the act will be repeated. Even where, because of the circumstances, it proves impossible to fulfil the obligation, owed by the institution whose act has been annulled, to take the necessary measures to comply with the judgment annulling the act, the application for annulment may retain an interest as the basis for possible proceedings for damages (see judgment of 30 June 2022, Camerin v Commission , C‑63/21 P, not published, EU:C:2022:516, paragraph 48 and the case-law cited).
348 However, the applicant must prove that he or she has an interest in bringing proceedings, by justifying in a relevant matter an interest in the annulment of that act (see, to that effect, judgment of 30 June 2022, Camerin v Commission , C‑63/21 P, not published, EU:C:2022:516, paragraph 50 and the case-law cited).
349 The same is true of an interest in raising a plea in law (judgment of 28 February 2017, JingAo Solar and Others v Council , T‑157/14, not published, EU:T:2017:127, paragraph 69).
350 It also follows from the case-law of the Court of Justice that the question whether an applicant retains his or her interest in bringing proceedings must be assessed in the light of the specific circumstances, taking account, in particular, of the consequences of the alleged unlawfulness and of the nature of the damage claimed to have been sustained (judgment of 28 May 2013, Abdulrahim v Council and Commission , C‑239/12 P, EU:C:2013:331, paragraph 65).
351 In that connection, according to case-law, a plea for annulment is inadmissible on the ground of lack of interest in bringing proceedings where, even if it were well founded, annulment of the contested act on the basis of that plea would not give the applicant satisfaction (see judgment of 9 June 2011, Evropaïki Dynamiki v ECB , C‑401/09 P, EU:C:2011:370, paragraph 49 and the case-law cited).
352 In the present case, it is necessary, first of all, to recall the factual context of the second part of the sixth plea in law, in particular as set out in paragraphs 15 to 21 above.
353 Specifically, further to the email of 14 October 2023 sent by the applicant to the Commission (see paragraph 15 above), the Commission confirmed to the applicant, in the course of a telephone conference on 18 October 2023, that the documents which could reveal journalistic sources would enjoy special protection modelled on the procedure established to protect legal professional privilege (see paragraph 16 above). Subsequently, by email of 26 October 2023, the Commission asked the applicant to send it the list of the persons concerned holding a press card and to discuss practical arrangements with a view to ensuring the protection of journalistic sources (see paragraph 18 above).
354 On 27 October 2023, the date on which the deadline set by the decision of 19 September 2023 for the disclosure of the documents requested expired, the applicant had not submitted any documents. On the same day, the Commission adopted the decision of 27 October 2023 (see paragraph 19 above).
355 By application lodged at the Registry of the General Court on 23 November 2023, the applicant brought an action seeking the annulment of the contested decision (see paragraph 20 above).
356 By the letter of 6 December 2023, the Director-General of the Commission’s ‘Competition’ Directorate-General repeated that any document jeopardising the protection of sensitive personal data or of journalistic sources would benefit from robust procedural safeguards under the relevant legislation and case-law, and provided details of those procedural safeguards (see paragraph 21 above).
357 In particular, in paragraph 14 of the letter of 6 December 2023, with regard to documents that could contain journalistic sources, the Commission proposed applying procedural safeguards similar to those established to guarantee the protection of legal professional privilege. In practice, it was provided that the persons concerned by the contested decision holding a press card may review the documents satisfying the criteria set out in the contested decision, identify information covered by such protection and provide a version with the journalistic sources redacted (or, failing that, withdraw the document from the information produced if it were not possible to supply a non-confidential version). Since it is responsible for the full and accurate provision of all the documents falling within the scope of the contested decision, it would be for the applicant to provide the remainder of the documents and a table giving a detailed summary of the nature of the information redacted or the documents withdrawn from the information provided.
358 As is apparent from paragraph 22 above, such safeguards concerning the protection of journalistic sources were formalised by the decision of 24 January 2024, recital 13(b) of which provides that the persons concerned by the contested decision holding a press card may review the documents satisfying the criteria set out in the contested decision, identify the information covered by such protection, and provide a version with the journalistic sources redacted or, failing that, withdraw the document from the information produced if it is not possible to supply a non-confidential version. It is also provided that it will be for the applicant to provide the remainder of the documents and a table giving a detailed summary of the nature of the information redacted or the documents withdrawn from the information provided.
359 It must be noted that, by its letter of 25 January 2024, the Commission informed the Court of the adoption of the decision of 24 January 2024 and invited the applicant to modify its application on the basis of Article 86 of the Rules of Procedure. That letter was added to the file and served on the applicant on 1 February 2024.
360 In that regard, it should be pointed out that it is true that the validity of an EU measure must be assessed on the basis of the facts and the law as they stood at the time when the measure was adopted (see, to that effect, judgment of 17 October 2013, Schaible , C‑101/12, EU:C:2013:661, paragraph 50 and the case-law cited).
361 However, according to case-law, when a decision or a regulation of direct and individual concern to an individual is replaced, during the proceedings, by another measure with the same subject matter, this is to be considered a new factor allowing the applicant to adapt its claims and pleas in law. It would be contrary to the principle of due administration of justice and to the requirements of procedural economy to oblige the applicant to make a fresh application. Moreover, it would be inequitable if the institution in question were able, in order to counter criticisms of a measure, contained in an application to the Courts of the European Union, to amend the contested measure or to substitute another for it and to rely in the proceedings on such an amendment or substitution in order to deprive the other party of the opportunity of extending his original pleadings to the later measure or of submitting supplementary pleadings directed against that measure (see judgment of 6 September 2013, Bank Melli Iran v Council , T‑35/10 and T‑7/11, EU:T:2013:397, paragraph 53 and the case-law cited).
362 Under Article 86(1) and (2) of the Rules of Procedure, in the version thereof applicable at that time, where a measure the annulment of which is sought is replaced or amended by another measure with the same subject matter, the applicant may, before the oral part of the procedure is closed or before the decision of the Court to rule without an oral part of the procedure, modify its application to take account of that new factor. The modification of the application must be made by a separate document within the time limit laid down in the sixth paragraph of Article 263 TFEU within which the annulment of the measure justifying the modification of the application may be sought.
363 Here, in the first place, the applicant’s position, as expressed in its reply, in its response to the measure of organisation of procedure and at the hearing, is that the adoption of the decision of 24 January 2024 cannot have the effect of retroactively regularising, in the course of proceedings, the defects vitiating the contested decision. The applicant also explains that the present action concerns the contested decision only, which it argues was not amended by the decision of 24 January 2024 – Article 1 of which amends Article 2 of the decision of 27 October 2023 and Article 2 of which provides for the imposition of a periodic penalty payment. Thus, in the applicant’s view, there was no need to modify the subject matter of the action, as defined by the application.
364 However, it must be stated that the decision of 24 January 2024 amends, in essence, three aspects of the contested decision.
365 First, as is apparent from paragraph 22 above, Article 1 of the decision of 24 January 2024 provides for the extension until 7 February 2024 of the deadline of 1 December 2023 set by the decision of 27 October 2023, which is in turn an extension of the deadline of 27 October 2023 set by the decision of 19 September 2023.
366 Second, recital 13(a) of the decision of 24 January 2024 sets out the procedural safeguards supplementing the contested decision to ensure the protection of sensitive personal data, by introducing the virtual data room procedure, as proposed by the letter of 6 December 2023.
367 Third, recital 13(b) of the decision of 24 January 2024 sets out procedural safeguards for the protection of journalistic sources, confirming the procedure proposed by the letter of 6 December 2023. Those safeguards are, in essence, the same as those discussed informally between the Commission and the applicant and modelled on the procedure established to protect legal professional privilege (see paragraphs 353 to 357 above).
368 In the second place, as stated in paragraph 359 above, it must be stated that the applicant was not deprived of the opportunity of extending its original pleadings to the decision of 24 January 2024 or of submitting supplementary pleadings, within the meaning of the case-law cited in paragraph 361 above.
369 Furthermore, as is apparent from paragraphs 353 to 357 above, it must be observed that, as part of its dialogue with the Commission, the applicant was aware, before the application was lodged on 23 November 2023, of the Commission’s efforts to find a solution to protect journalistic sources modelled on the procedure established to protect legal professional privilege.
370 However, the applicant opted neither to amend its application to take account of the decision of 24 January 2024 in the context of the present action nor to bring a fresh action against that decision.
371 In the third place, as is apparent from the case-law cited in paragraphs 345 to 348 above, an action for annulment brought by a natural or legal person is admissible only in so far as that person has an interest in having the contested act annulled. Such an interest, which it is for the applicant to prove, requires that the annulment of that act must be capable, in itself, of having legal consequences and that the action may therefore, through its outcome, procure an advantage to the party which brought it.
372 In the present case, in response to the measures of organisation of procedure, the applicant asserts that its interest in disputing the existence of procedural safeguards intended to protect the confidentiality of journalistic sources in the context of the second part of the sixth plea in law persisted since, first, the Commission cannot retroactively remove the defects vitiating the legality of the contested decision and, second, the safeguards provided for were not such as to prevent any interference with the protection of journalistic sources. The applicant submits in that regard new arguments intended to challenge the adequacy of the safeguards established by the decision of 24 January 2024.
373 However, first, those new arguments, which are intended to dispute the adequacy of those safeguards and were raised for the first time at the stage of the response to the measures of organisation of procedure, must be dismissed as inadmissible (see, to that effect, judgment of 29 January 2025, Ben Ali v Council , T‑178/23, not published, EU:T:2025:114, paragraph 54).
374 Second, it must be observed that, by that response, the applicant has still not established its continued interest in bringing proceedings in the context of the second part of the sixth plea in law. It fails to explain inter alia the reasons why the annulment of the contested decision could procure it an advantage following the adoption of the decision of 24 January 2024, which the applicant has chosen not to challenge in the context of the present action.
375 In that regard, it must be noted that, prior to the adoption of the decision of 24 January 2024, the applicant had not provided the Commission with any documents.
376 As is apparent from the file and as confirmed by the applicant at the hearing, it first sent documents to the Commission in February 2024, and later in September and December 2024. At the hearing, the applicant stated that, in December 2024, the Commission had received documents which corresponded to the terms of the contested decision, with the exception of documents covered by legal professional privilege or by the confidentiality of journalistic sources, or documents relating to the private life of the persons concerned.
377 The contested decision did not, therefore, produce legal effects in that regard between the time of its adoption, that is, 19 September 2023, and the entry into force of the decision of 24 January 2024.
378 Accordingly, the applicant could not procure any advantage from the potential annulment of the contested decision on the basis that it lacks procedural safeguards for the protection of journalistic sources.
379 Moreover, it must be pointed out that, in the context of the present action, the applicant does not make claims for damages and does not rely on any residual interest as referred to in the case-law mentioned in paragraph 347 above.
380 In the light of the foregoing considerations, it may be concluded that the applicant has not justified its continued interest in bringing proceedings in the context of the second part of the sixth plea in law.
381 The second part of the sixth plea in law must therefore be rejected, as must, in consequence, the sixth plea in law in its entirety.
The seventh plea in law, alleging a lack of adequate safeguards to protect the right to respect for private life
382 By its seventh plea in law, the applicant claims that the contested decision does not contain adequate safeguards to protect the right to respect for private life, as enshrined in Article 7 of the Charter and Article 8 ECHR.
383 According to the applicant, the fact that the contested decision requires it to produce documents connected with the private life of some of its employees and company officers is, in essence, demonstrated by the following points. First, private and/or personal mobile telephones or tablets (‘the personal communication tools’), which have been used at least once for professional purposes, fall within the scope of the contested decision over the relevant period. Second, the documents satisfying point III(7) of the annex to the contested decision must be provided in their entirety. Third, the contested decision does not contain any reference to the procedural safeguards to protect the confidentiality of private life. Fourth, French labour law precludes the order laid down in the contested decision. If the applicant were to comply with the obligation imposed by the contested decision to collect, process and communicate to the Commission documents falling within the personal sphere of some of its employees and company officers, it would open itself up to criminal penalties and undermine the right to respect for private life of those persons.
384 The applicant explains, in that regard, that, under French law, an employer cannot view the correspondence or emails sent or received by an employee at his or her workplace or documents held by the employee at his or her workplace identified by the employee as personal documents, unless the person concerned is present during the consultation or has been invited to be present. Furthermore, the employer cannot consult the emails sent or received by the employee in his or her personal mailbox, which is separate from his or her professional mailbox, or the conversations conducted by an employee on a personal instant messaging service, as in so doing it would commit the offence of violating the confidentiality of correspondence, even if the personal mailbox has been installed or consulted by the employee on the computer made available to him or her by the employer.
385 In its reply, the applicant argues that the Commission confuses ‘personal data’ and information relating to an individual’s ‘private life’. According to the applicant, the concept of ‘personal data’ is however more restrictive than the broader concept of ‘private life’. In its view, the protection which the Commission claims to reserve for personal data alone does not cover information which, without being strictly personal, is concerned by the fundamental right to respect for private life.
386 The Commission disputes the applicant’s line of argument.
387 Under Article 7 of the Charter, everyone has the right to respect for his or her private and family life, home and communications.
388 Article 7 of the Charter contains rights corresponding to those guaranteed in Article 8(1) ECHR, under which everyone has the right to respect for his private and family life, his home and his correspondence (see judgment of 8 December 2022, Google (De-referencing of allegedly inaccurate content) , C‑460/20, EU:C:2022:962, paragraph 59 and the case-law cited). Therefore, in accordance with Article 52(3) of the Charter, Article 7 thereof is to be given the same meaning and the same scope as Article 8(1) ECHR, as interpreted by the case-law of the ECtHR (see judgment of 17 December 2015, WebMindLicenses , C‑419/14, EU:C:2015:832, paragraph 70 and the case-law cited).
Whether the contested decision results in interference with the exercise of the right provided for in Article 7 of the Charter
389 It is settled case-law that the communication of personal data to a third party, such as a public authority, constitutes an interference with the fundamental right enshrined in Article 7 of the Charter, whatever the subsequent use of the information communicated and even in the absence of circumstances which would allow that interference to be defined as ‘serious’. The same is true of the retention of personal data and access to those data with a view to their use by public authorities. It does not matter whether the information relating to private life is sensitive or whether the persons concerned have been inconvenienced on account of that interference (see, to that effect, judgments of 2 October 2018, Ministerio Fiscal , C‑207/16, EU:C:2018:788, paragraph 51 and the case-law cited, and of 21 June 2022, Ligue des droits humains , C‑817/19, EU:C:2022:491, paragraph 96 and the case-law cited). It is of no relevance in that respect that the data concerned may relate to professional activities (see, to that effect, judgment of 22 November 2022, Luxembourg Business Registers , C‑37/20 and C‑601/20, EU:C:2022:912, paragraph 38 and the case-law cited).
390 In that context, the Court of Justice has already had occasion to find that seizures of emails in the course of searches at the professional or business premises of a natural person or the premises of a commercial company constitute interference with the exercise of the right guaranteed by Article 7 of the Charter (see, to that effect, judgment of 17 December 2015, WebMindLicenses , C‑419/14, EU:C:2015:832, paragraphs 70 to 73 and 80 and the case-law cited).
391 In the present case, as is apparent from paragraphs 6 to 12 and 19 above, the contested decision essentially imposes on the applicant the obligation to gather and communicate to the Commission, first, the documents sent or received over the relevant period by fourteen persons concerned (as well as their successors and predecessors), identified by name in point II(5) of the annex to that decision, and containing at least one of the search terms listed in point VII of that annex and, second, the documents exchanged over the relevant period between four persons identified by name in point III(7)(a) to (c) of that annex. That obligation extends to the exchanges made using both professional and personal communication tools, provided that the latter have been used at least once for professional communications.
392 In those circumstances, the documents to be collected, processed and communicated to the Commission may contain information relating to the private life of some of the applicant’s employees and company officers. The implementation of the contested decision is therefore such as to give rise to interference with the right guaranteed by Article 7 of the Charter.
393 With regard to the seriousness of the interference, it should be recalled that, first, the obligation imposed by the contested decision also extends to exchanges made using both professional and personal communication tools, provided that the latter have been used at least once for professional communications. Second, the contested decision not only requires that the documents exchanged throughout the relevant period are communicated in the case of the persons referred to in paragraph 391 above, but also lays down, in point III(9) of the annex to that decision, the obligation to hand over all the exchanges between certain persons where just one exchange corresponds to the search terms referred to in the decision.
394 Therefore, implementation of the contested decision may result in the communication of a very wide variety of personal data, which is difficult to determine beforehand, and potentially on a large scale. Moreover, the information collected from the personal communication tools may provide more information about sensitive aspects of the private life of the persons concerned than that obtained from the professional communication tools. It follows that such data, taken as a whole, may allow precise conclusions to be drawn regarding the private life of the persons concerned.
395 In addition, the communication of sensitive information about the private life of the persons concerned which may allow precise conclusions to be drawn regarding the private life of those persons constitutes serious interference with the fundamental right enshrined in Article 7 of the Charter (see, to that effect, judgments of 1 August 2022, Vyriausioji tarnybinės etikos komisija , C‑184/20, EU:C:2022:601, paragraph 105; of 22 November 2022, Luxembourg Business Registers , C‑37/20 and C‑601/20, EU:C:2022:912, paragraphs 41 to 44; and of 30 April 2024, La Quadrature du Net and Others (Personal data and action to combat counterfeiting) , C‑470/21, EU:C:2024:370, paragraph 96 and the case-law cited).
396 Therefore, the obligation to communicate information to the Commission laid down in the contested decision entails the risk of serious interference with the fundamental right enshrined in Article 7 of the Charter.
397 Since the contested decision constitutes a limitation on the exercise of the right to respect for private life, within the meaning of Article 52(1) of the Charter, it is necessary to determine whether such a limitation is justified on the basis of the wording of that provision.
Justification for the interference resulting from the contested decision
398 Under the first sentence of Article 52(1) of the Charter, any limitation on the exercise of the rights and freedoms recognised by the Charter must be provided for by law (the requirement referred to in case-law as the ‘principle of legality’) and respect the essence of those rights and freedoms. The second sentence of Article 52(1) of the Charter states that, subject to the principle of proportionality, limitations may be made to those rights and freedoms only if they are necessary and genuinely meet objectives of general interest recognised by the European Union or the need to protect the rights and freedoms of others.
– Compliance with of the principle of legality
399 It follows from the case-law of the Court of Justice that observance of the principle of legality means that the legal basis authorising such a limitation must define the scope of such a limitation sufficiently clearly and precisely (see, to that effect, judgment of 26 January 2023, Ministerstvo na vatreshnite raboti (Recording of biometric and genetic data by the police) , C‑205/21, EU:C:2023:49, paragraph 65 and the case-law cited).
400 In the present case, it must be observed that the limitation on the exercise of the fundamental right guaranteed by Article 7 of the Charter resulting from the implementation of the contested decision is to be provided for by a legislative act of the European Union. The contested decision was adopted on the basis of Article 11(3) of Regulation No 139/2004, which confers on the Commission the power to request, by decision, that undertakings and associations of undertakings provide information necessary for it to carry out the duties assigned to it by that regulation (see paragraphs 112 to 124 above).
401 The exercise of the powers conferred on the Commission by Regulation No 139/2004 contributes to the maintenance of the system of competition intended by the Treaties with which undertakings are absolutely bound to comply (see, by analogy, judgment of 20 June 2018, České dráhy v Commission , T‑621/16, not published, EU:T:2018:367, paragraph 105 and the case-law cited).
402 Since Regulation No 139/2004 confers on the Commission, sufficiently clearly and precisely, the power to adopt decisions requesting information, the contested decision therefore complies with the principle of legality for the purposes of Article 52(1) of the Charter.
– Respect for the essence of the fundamental right enshrined in Article 7 of the Charter
403 According to case-law, legislation permitting the public authorities to have access on a generalised basis to the content of electronic communications must be regarded as compromising the essence of the fundamental right to respect for private life, as guaranteed by Article 7 of the Charter (see judgment of 6 October 2015, Schrems , C‑362/14, EU:C:2015:650, paragraph 94 and the case-law cited).
404 In the same way, a measure permitting the public authorities to have a full overview of the private and family life of the persons concerned may compromise the essence of the fundamental right enshrined in Article 7 of the Charter (judgments of 21 June 2022, Ligue des droits humains , C‑817/19, EU:C:2022:491, paragraph 120; of 22 November 2022, Luxembourg Business Registers , C‑37/20 and C‑601/20, EU:C:2022:912, paragraphs 50 to 52; and of 21 March 2024, Landeshauptstadt Wiesbaden , C‑61/22, EU:C:2024:251, paragraphs 80 and 81 and the case-law cited).
405 However, a limitation on a fundamental right respects the essence of that right where it does not call into question that right as such, in particular if it is applicable under specific conditions, as long as those conditions are fulfilled (see, to that effect and by analogy, judgments of 6 October 2015, Delvigne , C‑650/13, EU:C:2015:648, paragraph 48, and of 27 September 2017, Puškár , C‑73/16, EU:C:2017:725, paragraph 64).
406 In the present case, in the first place, while it is true that the information collected and communicated to the Commission pursuant to the contested decision may reveal very precise information about the private life of the persons concerned, such information is likely to provide only sparse and incidental information about certain aspects of the private life of those persons. That information covers different categories of data relating to private life which are not necessarily interlinked and do not constitute a homogenous whole.
407 In that regard, it must be observed that the temporal, personal and material scope of the contested decision is specified by means of precise definitions of the relevant period (point I(4) of the annex thereto), the persons concerned (point II(5) of the annex thereto) and the search terms (point VII of the annex thereto), with the result that that decision does not require the applicant to collect and communicate to the Commission all the documents exchanged between its employees and company officers (see paragraph 391 above).
408 It must also be pointed out that personal communication tools are covered by the contested decision only if they have been used at least once for professional purposes, as is apparent from point I(2) of the annex to that decision (see paragraphs 8 and 391 above). That condition means that the scope of the contested decision is limited only to persons who have used their personal communication tools for professional purposes. In that connection, it must be observed that the purpose of the request for information at issue is to establish infringements of the competition rules, and that that is an area in which relevant exchanges may occur between the persons concerned via means of communication other than professional means.
409 In addition, it must be noted that the objective of a decision requesting information adopted on the basis of Article 11(3) of Regulation No 139/2004, such as the contested decision. is not to collect, as such, information relating to the private life of the persons at issue or their personal data, but to gather information necessary to investigate presumed infringements of the obligations under that regulation. That means that, unless it is commercially relevant and therefore useful in establishing that such an infringement exists, information relating to the private life of the persons concerned and their personal data are collected only on an incidental basis (see, to that effect and by analogy, judgment of 22 October 2002, Roquette Frères , C‑94/00, EU:C:2002:603, paragraph 45).
410 In the second place, the interference entailed by the contested decision is governed by procedural safeguards regarding the protection of sensitive personal data. Point IV(10)(l) of the annex to the contested decision provides that if certain documents contain sensitive personal data, as defined by Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ 2016 L 119, p. 1; ‘the GDPR’), those documents are to be supplied in an encrypted format and separately, and be identified as ‘sensitive personal data’.
411 In that regard, it should be borne in mind that, under Article 9(1) of the GDPR, read in the light of recital 10 of that regulation, the concept of ‘sensitive personal data’ refers to personal data which, if processed, reveals racial or ethnic origin, political opinions, religious or philosophical beliefs or trade union membership, as well as genetic data, biometric data which, if processed, allows a natural person to be uniquely identified and data concerning the health, sex life or sexual orientation of a natural person.
412 Thus, the contested decision sets out specific procedural guarantees concerning sensitive personal data which ensure that those data are provided in an encrypted format and separately.
413 In any case, it must be noted that, as is apparent from paragraph 22 above, the contested decision was amended and supplemented by the decision of 24 January 2024. Specifically, point (a) of recital 13 of the latter decision states that, as far as concerns personal data, documents falling within the scope of the contested decision which are unconnected with the applicant’s commercial activities and contain sensitive personal data, for the purposes of Article 9 of the GDPR and Article 10 of Regulation (EU) 2018/1725 of the European Parliament and of the Council of 23 October 2018 on the protection of natural persons with regard to the processing of personal data by the Union institutions, bodies, offices and agencies and on the free movement of such data, and repealing Regulation (EC) No 45/2001 and Decision No 1247/2002/EC (OJ 2018 L 295, p. 39), may be placed in a virtual data room, as provided for in point 2 of the operative part of the orders of 29 October 2020, Facebook Ireland v Commission (T‑451/20 R, not published, EU:T:2020:515), and of 29 October 2020, Facebook Ireland v Commission (T‑452/20 R, not published, EU:T:2020:516), to allow the Commission to determine whether they are irrelevant to its investigation.
414 At the hearing, the Commission explained that the procedural safeguards provided for in point IV(10)(l) of the annex to the contested decision and those provided for in point (a) of recital 13 of the decision of 24 January 2024 were cumulative.
415 The virtual data room procedure, established by the decision of 24 January 2024, allows for further regulation of the contested decision, by affording additional procedural safeguards to ensure the protection of sensitive personal data. It should be observed, in that regard, that the right to the protection of personal data, set out in Article 8(1) of the Charter, is closely linked to the right to respect for private life enshrined in Article 7 of the Charter, as is apparent from the case-law cited in paragraph 444 below and the analysis conducted in paragraphs 442 to 454 below.
416 In the third place, the communication and the processing of information supplied in the context of a Commission investigation relating to competition law are governed by general procedural safeguards intended to ensure, inter alia, the security, integrity and confidentiality of those data.
417 Only Commission staff and officials in charge of the investigation may, where appropriate, acquaint themselves with personal data. Commission staff are subject to strict obligations of professional secrecy pursuant to Article 339 TFEU and Article 17 of Regulation No 139/2004. The latter provision prohibits Commission staff and officials from disclosing or using information obtained for purposes other than those for which it was acquired. In addition, Commission staff and officials are bound by Article 17 of the Staff Regulations of Officials of the European Union, which prohibits them, even after leaving the service, from making ‘any unauthorised disclosure of information received in the line of duty, unless that information has already been made public or is accessible to the public’.
418 It follows that the contested decision cannot be regarded as compromising the essence of Article 7 of the Charter.
– Pursuit of objectives of general interest recognised by the European Union
419 According to case-law, competition law pursues the objective, which is indispensable for the functioning of the internal market, of ensuring that competition is not distorted in that market to the detriment of the general interest, individual undertakings and consumers (see, to that effect and by analogy, judgments of 22 March 2022, bpost , C‑117/20, EU:C:2022:202, paragraph 46 and the case-law cited; of 22 March 2022, Nordzucker and Others , C‑151/20, EU:C:2022:203, paragraph 51 and the case-law cited; and of 20 June 2018, České dráhy v Commission , T‑621/16, not published, EU:T:2018:367, paragraph 105 and the case-law cited).
420 In that context, it must be observed that the contested decision represents a manifestation of the powers conferred on the Commission by Article 11 of Regulation No 139/2004, the purpose of which is to enable it to carry out the task assigned to it by the Treaties, namely to ensure compliance with competition law in the internal market.
421 The strength of the public interest in the effective implementation of competition law is also emphasised by the ECtHR. Specifically, given the negative impact that infringements of competition law may have on competition on the markets and the difficulty of detecting and investigating them, it is important that competition authorities and other law-enforcement agencies are able to cooperate in their efforts to uncover and punish such anti-competitive practices. The enforcement of competition law is crucial to safeguarding the performance capacity and fairness of market economies, and, consequently, the economic well-being of a country (see ECtHR, 1 April 2025, Ships Waste Oil Collector B.V. and Others v. the Netherlands , CE:ECHR:2025:0401JUD000279916, § 197 and the case-law cited).
422 That purpose is an objective of general interest which may justify interference, even significant interference, with the fundamental right enshrined in Article 7 of the Charter (see, to that effect, judgment of 18 June 2015, Deutsche Bahn and Others v Commission , C‑583/13 P, EU:C:2015:404, paragraph 20).
423 The contested decision therefore contributes to the achievement of an objective of general interest recognised by the European Union.
– Observance of the principle of proportionality
424 According to the case-law of the Court of Justice, the principle of proportionality requires that the limitations which may, in particular, be imposed by acts of EU law on rights and freedoms enshrined in the Charter do not exceed the limits of what is appropriate and necessary in order to meet the legitimate objectives pursued or the need to protect the rights and freedoms of others; where there is a choice between several appropriate measures, recourse must be had to the least onerous and the disadvantages caused by that measure must not be disproportionate to the aims pursued. Thus, the possibility of justifying a limitation of the rights guaranteed by Article 7 of the Charter must be assessed by measuring the seriousness of the interference which such a limitation entails and by verifying that the importance of the objective of general interest pursued by that limitation is proportionate to that seriousness (see judgment of 8 December 2022, Orde van Vlaamse Balies and Others , C‑694/20, EU:C:2022:963, paragraph 41 and the case-law cited).
– Appropriateness of the limitation
425 With regard to the appropriateness of the limitation on the right to respect for private life resulting from the contested decision, it must be found that, in the light of paragraphs 419 to 423 above, a decision requesting information, such as the contested decision, adopted on the basis of Article 11(3) of Regulation No 139/2004, is an appropriate measure to achieve the objective of general interest of protecting effective and undistorted competition in the internal market, since it requires the companies concerned to collect and communicate to the Commission the information necessary to determine whether anti-competitive practices exist.
– Necessity of the limitation
426 As regards the requirement that the limitation on the right to respect for private life is necessary, that requirement is not met where the objective of general interest pursued can reasonably be achieved just as effectively by other means less restrictive of the fundamental rights of the persons concerned. By contrast, the requirement of necessity is met where the objective pursued by the data processing at issue cannot reasonably be achieved just as effectively by other means less restrictive of the fundamental rights of those persons, in particular the right to respect for private and family life guaranteed in Article 7 of the Charter (see, to that effect, judgment of 4 October 2024, Bezirkshauptmannschaft Landeck (Attempt to access personal data stored on a mobile telephone) , C‑548/21, EU:C:2024:830, paragraphs 87 and 88 and the case-law cited).
427 In that context, it should be recalled that, in a digital environment, it is accepted that information is largely exchanged within an undertaking or between undertakings by electronic means, using professional – or even personal – communication tools.
428 However, the powers of investigation available to the Commission in the field of competition law would risk being rendered ineffective if companies could evade the obligation to respond to a request for information solely because certain documents bear the word ‘personal’ or ‘private’ or are exchanged using personal communication tools, without consideration of whether those documents contain, in reality, information connected with the commercial activity of the undertakings in question.
429 Thus, to ensure the effectiveness of competition law, the Commission must be able to request all information necessary for it to carry out the duties assigned to it by Regulation No 139/2004 that is contained in professional, or even personal, communication tools, provided the latter have been used for professional persons, whilst observing the right to respect for private life enshrined in Article 7 of the Charter.
430 Accordingly, the obligation imposed on the applicant by the contested decision to collect and communicate to the Commission the documents indicated by it and, on an incidental basis, the collection of data relating to private life which is thereby entailed must be regarded as being necessary for the purpose of pursuing the objective of general interest of protecting competition in the internal market, since that objective cannot reasonably be achieved just as effectively by other means less restrictive of fundamental rights, in particular the right to respect for private life guaranteed by Article 7 of the Charter.
– Whether the limitation is strictly proportionate
431 The assessment of whether the limitation on the exercise of the fundamental right guaranteed by Article 7 of the Charter is strictly proportionate involves balancing all the relevant factors in the individual case. Such factors include, inter alia, the seriousness of the limitation thus placed on the exercise of the fundamental rights at issue, which depends on the nature and sensitivity of the data to which the competent authorities may have access, the importance of the objective of general interest pursued by that limitation, the link existing between the owner of the documents in question and the infringement at issue and the relevance of the data in question for the purpose of establishing the facts (see judgment of 4 October 2024, Bezirkshauptmannschaft Landeck (Attempt to access personal data stored on a mobile telephone) , C‑548/21, EU:C:2024:830, paragraphs 89 and 90 and the case-law cited).
432 In the first place, with regard to the seriousness of the interference, as is apparent from paragraph 396 above, the obligation to communicate information to the Commission laid down in the contested decision entails the risk of serious interference with the fundamental right enshrined in Article 7 of the Charter.
433 However, it must be noted that the contested decision does not give the Commission full and unchecked access to all the data contained in the personal communication tools of the persons concerned and does not seek to establish a continuous, untargeted and systematic monitoring regime, including the automated assessment of personal data of all the applicant’s employees and company officers, or of the persons concerned by that decision (see, to that effect, judgments of 21 June 2022, Ligue des droits humains , C‑817/19, EU:C:2022:491, paragraphs 98 to 111, and of 4 October 2024, Bezirkshauptmannschaft Landeck (Attempt to access personal data stored on a mobile telephone) , C‑548/21, EU:C:2024:830, paragraphs 91 to 95 and the case-law cited).
434 First, it must be observed that, in the context of the documents collected pursuant to the contested decision, data relating to private life are more likely to come to light on a piecemeal basis when searching for commercial information about the undertaking. In those circumstances, those data do not, on their own, provide a full overview of the private life of the person concerned without further processing, which is by no means the purpose of the investigation.
435 Second, as observed in paragraphs 8 and 408 above, the obligation under the contested decision extends to the exchanges made using both the professional and the personal communication tools of the persons concerned, such as their personal mobile phones, only if they have been used at least once for professional purposes. Accordingly, the scope of the request for information is restricted as regards the obligation to communicate the documents referred to in point III(7) of the annex to the contested decision and obtained from the personal communication tools in order to limit the interference with the right to respect for private life enshrined in Article 7 of the Charter.
436 Third, it must be observed that the persons concerned were selected either because of the significance of their roles and responsibilities within the applicant or its main shareholder or their status as holders of press cards, in so far as the request seeks to establish whether the applicant exercised decisive influence over Lagardère, as is apparent from the factors restated in paragraph 10 above. Consequently, the contested decision is not only limited to requesting the collection of the documents concerned from persons within the applicant’s senior management, but also strictly governs the communication of the information of persons holding press cards, as is apparent from paragraphs 353 to 358 above.
437 In the second place, it is apparent from the points set out in paragraphs 419 to 423 above that the importance of the objective of protecting effective and undistorted competition in the internal market may justify interference, even serious interference, with the right to respect for the fundamental right enshrined in Article 7 of the Charter.
438 In the third place, as for the link existing between the owner of the communication tools in question and the infringement at issue, it must be observed that the collection of and access to data relating to private life which may be contained in professional communication tools and personal communication tools used at least once for professional purposes are, in principle, incidental in the context of the search for information of a commercial nature intended to establish an infringement on the part of the undertaking under investigation. It follows from that fact that the collection of and access to the personal data of the persons concerned by a competition investigation are not intended, in principle, to establish the liability in matters of competition of the natural person in possession of those data, but simply that of the legal person with whom that natural person has an employment relationship.
439 In the fourth place, it should be recalled that the presence of a post-inspection review is a fundamental guarantee in order to ensure the compatibility of the measure in question with Article 7 of the Charter (see, to that effect, judgment of 18 June 2015, Deutsche Bahn and Others v Commission , C‑583/13 P, EU:C:2015:404, paragraph 32 and the case-law cited). It is, moreover, with that in mind that Article 11(3) of Regulation No 139/2004, on the basis of which the contested decision was adopted, states that decisions requesting information must indicate the right to have such decisions reviewed by the Courts of the European Union.
440 Therefore, as to whether the limitations made by the contested decision on the right to respect for private life, guaranteed in Article 7 of the Charter, are strictly proportionate, the disadvantages caused by the implementation of the contested decision do not appear disproportionate to the objective of general interest pursued by that decision, which consists in protecting competition in the internal market (see paragraphs 419 to 423 above).
441 That conclusion cannot be called into question by the applicant’s other arguments.
442 First, as regards the distinction alleged by the applicant between ‘personal data’ and information relating to an individual’s ‘private life’, it is true that the contested decision establishes procedural safeguards regarding sensitive personal data as defined in Article 9(1) of the GDPR.
443 However, it must be observed that the mere fact that the procedural safeguards established by the contested decision refer only to sensitive personal data and not, in general terms, to data relating to private life does not mean, as such, that that decision does not observe the fundamental right to respect for private life enshrined in Article 7 of the Charter.
444 The right to the protection of personal data, set out in Article 8(1) of the Charter, is closely connected with the right to respect for private life enshrined in Article 7 of the Charter (judgments of 9 November 2010, Volker und Markus Schecke and Eifert , C‑92/09 and C‑93/09, EU:C:2010:662, paragraph 47, and of 24 November 2011, Asociación Nacional de Establecimientos Financieros de Crédito , C‑468/10 and C‑469/10, EU:C:2011:777, paragraph 41).
445 In that regard, according to the case-law of the Court of Justice, the right to respect for private life with regard to the processing of personal data, recognised by Articles 7 and 8 of the Charter, concerns any information relating to an identified or identifiable individual (judgment of 9 November 2010, Volker und Markus Schecke and Eifert , C‑92/09 and C‑93/09, EU:C:2010:662, paragraph 52). Thus, as long as the conditions governing the legal processing of personal data under the GDPR are fulfilled, such processing meets, in principle, the requirements of Articles 7 and 8 of the Charter (judgment of 5 June 2023, Commission v Poland (Independence and private life of judges) , C‑204/21, EU:C:2023:442, paragraph 332).
446 In the present case, it should be recalled that, under Article 6(1)(c) of the GDPR, the applicant is engaged in a lawful processing of personal data by communicating to the Commission documents containing such data which are requested pursuant to the contested decision.
447 In addition, under Article 5(1)(a) of Regulation 2018/1725, EU institutions may lawfully process personal data if that processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority invested in those institutions.
448 In that regard, the contested decision represents a manifestation of the exercise of the powers conferred on the Commission by Regulation No 139/2004, which, as is apparent from paragraph 420 above, contributes to the maintenance of the system of competition intended by the Treaties with which undertakings are absolutely bound to comply.
449 Furthermore, it should be borne in mind that the fundamental right enshrined in Article 7 of the Charter is not an absolute right, but must be considered in relation to its function in society (see, to that effect, judgment of 21 June 2022, Ligue des droits humains , C‑817/19, EU:C:2022:491, paragraph 112 and the case-law cited).
450 In the present case, as is apparent from the analysis carried out in paragraphs 403 to 418 and 424 to 440 above, the limitations made by the contested decision on the right to respect for private life, guaranteed in Article 7 of the Charter, do not compromise the essence of the fundamental right and are not disproportionate to the objective of protecting effective and undistorted competition in the internal market pursued by that decision.
451 Thus, the applicant’s argument that the procedural safeguards provided for in the contested decision do not apply to all data relating to the private life of the persons concerned but only to sensitive personal data cannot, as such, call into question the conformity of the contested decision with the fundamental right enshrined in Article 7 of the Charter.
452 In any case, while it is true that the contested decision does refer only to safeguards concerning sensitive personal data, it is also apparent from paragraph 23 above that the Commission applied the virtual data room safeguard to data relating to the private sphere.
453 It must, admittedly, be observed that that extension of the virtual data room to documents relating to the private sphere was not formalised by a decision.
454 However, as is apparent from paragraphs 472 and 473 below, the Commission demonstrated its commitment to protecting the private life of the persons concerned by granting the request for withdrawal of certain documents containing information relating to private life made by the applicant on 21 January 2025.
455 Second, as regards the applicant’s argument relating to the requirement, contained in point III(9) of the annex to the contested decision, to provide documents satisfying point III(7) of that annex in their entirety, it is sufficient to recall that, as is apparent from paragraph 240 above, such an argument cannot establish a breach of the principle of proportionality since the context of an item of information can make it easier to understand and clarify its relevance for the purposes of the investigation.
456 Third, the applicant submits that documents covered by the confidentiality owed to private life or containing personal data relating to the ‘political opinions’ or ‘religious beliefs’ of some of the persons concerned could be communicated to the Commission pursuant to the contested decision. In that regard, it must be observed, as the Commission notes, that certain documents containing ‘political opinions’ or ‘religious beliefs’ may number amongst the documents connected with the applicant’s commercial activity and could be relevant to the Commission’s investigation, since that investigation relates, in part, to a possible decisive influence exercised over publications or entities of the Lagardère group in relation to political, religious or philosophical matters. Furthermore, the applicant does not identify alternative or additional search terms which would be less likely to bring to light data concerning the political opinions of the persons concerned.
457 Fourth, as for the applicant’s argument that French labour law precludes the order imposed by the contested decision, it should first of all be borne in mind that, according to settled case-law, the principle of the primacy of EU law establishes the pre-eminence of EU law over the law of the Member States and requires all Member State bodies to give full effect to the various EU provisions, and the law of the Member States may not undermine the effect accorded to those various provisions in the territory of those States (see judgment of 18 January 2022, Thelen Technopark Berlin , C‑261/20, EU:C:2022:33, paragraph 25 and the case-law cited).
458 In the present case, it must be observed, in any case, that the applicant does not provide a concrete analysis of the specific provisions of French law, which are only mentioned in footnotes 160 and 161 to the application.
459 In the absence of further explanations or additional evidence, the applicant’s argument based on French labour law must be rejected as failing to satisfy the requirements of precision necessary under Article 76(d) of the Rules of Procedure.
460 The seventh plea in law must therefore be rejected.
The additional evidence submitted by the applicant
The evidence produced on 26 July 2024
461 By document lodged at the Registry of the General Court on 26 July 2024, the applicant, relying on Article 85(3) of the Rules of Procedure, produced further evidence consisting in several letters exchanged between it and the Commission concerning whether and under what conditions RWB could have had access to or knowledge of the statement of objections which had been sent to it as part of the merger review procedure registered by the Commission under number M.10433 – Vivendi/Lagardère.
462 In its observations of 19 August 2024, the Commission argues that the evidence produced by the applicant is inadmissible, as the conditions laid down in Article 85(3) of the Rules of Procedure are not met on account of the unjustified delay in the submission of that evidence attributable to the applicant’s conduct. According to the Commission, the applicant fails to explain why it waited for ten months after the RWB’s statement of 15 June 2023 to seek to ‘understand the circumstances in which RWB could have had access to or knowledge of a confidential document in the Commission’s file’ or to ask the Commission ‘to open an internal investigation’, even though it could have done so well before the first exchange of pleadings. In any case, the Commission argues that the evidence is manifestly irrelevant to the assessment of the action. In the Commission’s view, the evidence is simply intended to exploit a long-standing conflict between RWB and the applicant and in no way substantiates the line of argument previously put forward by the applicant in support of its pleas in law. The production of the evidence is simply a further manifestation of the applicant’s strategy of continually making requests and raising procedural issues with a view to delaying the progress of the investigation.
463 In that regard, it should be recalled that Article 85(3) of the Rules of Procedure provides that ‘the main parties may, exceptionally, produce or offer further evidence before the oral part of the procedure is closed or before the decision of the General Court to rule without an oral part of the procedure, provided that the delay in the submission of such evidence is justified’.
464 In the present case, it must be observed that the correspondence produced by the applicant is dated after the application and the reply were lodged, on 23 November 2023 and 8 April 2024 respectively. The applicant could not therefore attach such evidence to the reply nor, a fortiori, to the application (see, to that effect, judgment of 13 January 2021, Bezouaoui and HB Consultant v Commission , T‑478/18, not published, EU:T:2021:2, paragraph 79 and the case-law cited). In those circumstances, that evidence must therefore be deemed admissible.
465 However, as the Commission observes, that evidence is irrelevant to the assessment of the present action.
466 It must be observed, first of all, that, according to the Commission, it did not send a non-confidential version of the statement of objections in case M.10433 – Vivendi/Lagardère to RWB, which had not been recognised as an interested third person in that case, as it had not applied to be so recognised. It follows that RWB could have had access to that version through an interested third person which did not comply with its non-disclosure obligations and whom the Commission has been unable to identify.
467 However, the conduct of an interested third person cannot be attributed to the Commission.
468 In addition, as the Commission notes, it is not authorised to disclose business secrets, confidential information or sensitive personal data to a third person.
469 Article 16(2) of Commission Implementing Regulation (EU) 2023/914 of 20 April 2023 implementing Regulation No 139/2004 and repealing Commission Regulation (EC) No 802/2004 (OJ 2023 L 119, p. 22), provides that, ‘where a statement of objections or a supplementary statement of objections has been issued, the Commission may send to third persons a non-confidential version of that statement or inform them of the nature and subject matter of the proceedings by other appropriate means[;] for that purpose, the notifying parties shall identify any information which they consider confidential in the objections, pursuant to Article 18(3), second and third subparagraphs, within five working days from the receipt of the statement[;] the Commission shall provide the non-confidential version of the objections to third persons only to be used for the purposes of the relevant proceedings pursuant to Regulation … No 139/2004[;] third persons shall accept the use restriction prior to receipt of the non-confidential version of the objections’.
470 However, in the present case, nothing in the documents before the Court provides evidence of any disclosure whatsoever by the Commission of confidential information relating to the applicant. Moreover, the applicant wholly fails to substantiate its argument that RWB’s access to the non-confidential version of the statement of objections in case M.10433 – Vivendi/Lagardère could have had an impact on the lawfulness of the contested decision.
471 It follows that the evidence produced on 26 July 2024 is not relevant to the assessment of the present action.
The evidence produced on 6 February 2025
472 By document lodged at the Registry of the General Court on 6 February 2025, the applicant, relying on Article 85(3) of the Rules of Procedure, produced a letter sent to the Commission on 21 January 2025 by which the applicant asked the Commission to withdraw from the file documents containing information relating to private life and included in the documents communicated in September and October 2024 (‘the request for withdrawal’) as well as several documents referred to in the request for withdrawal.
473 In its observations of 25 February 2025, the Commission explains that it granted the request for withdrawal by removing the documents concerned and confirming their removal by email of 19 February 2025. Furthermore, the applicant offers no explanation as to which search terms led to those documents being produced or how those documents fell within the scope of the contested decision, even though the applicant itself states that they should never have been produced. The Commission also points out that all the documents and files produced by the applicant in response to the contested decision originate from professional tools and that the applicant had refused to establish a virtual data room. Finally, the Commission observes that it had agreed to exclude from the scope of the request for information exchanges falling within the private sphere, as identified by the applicant itself.
474 In that regard, it is sufficient to state that since, first, the applicant acknowledges that the documents referred to in the request for withdrawal were communicated to the Commission as a result of a technical error and should never have been included in the documents produced by it in September and October 2024 and, second, the Commission granted the request for withdrawal, the evidence produced by the applicant on 6 February 2025 is no longer relevant to the assessment of the present action.
Conclusion
475 Since none of the pleas in law raised by the applicant is well founded, the action must be dismissed in its entirety.
Costs
476 Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Since the applicant has been unsuccessful, it must be ordered to pay its own costs as well as those incurred by the Commission, in accordance with the form of order sought by the latter, including those relating to the interim proceedings registered under numbers T‑1097/23 R, C‑90/24 P(R)-R, C‑90/24 P(R), T‑1097/23 R-RENV and C‑470/24 P(R)-R.
477 Under Article 138(1) of the Rules of Procedure, the Member States and institutions which have intervened in the proceedings are to bear their own costs. The Council must therefore bear its own costs.
On those grounds,
THE GENERAL COURT (Ninth Chamber, sitting with five Judges)
hereby:
1. Dismisses the action;
2. Orders Vivendi SE to bear its own costs and those incurred by the European Commission, including those relating to the interim proceedings registered under numbers T ‑ 1097/23 R, C ‑ 90/24 P(R)-R, C ‑ 90/24 P(R), T ‑ 1097/23 R-RENV and C ‑ 470/24 P(R)-R;
3. Orders the Council of the European Union to bear its own costs.
Truchot | Jaeger | Schwarcz
Sampol Pucurull | | Perišin
Delivered in open court in Luxembourg on 3 June 2026.
[Signatures]
* Language of the case: French.