In the case Nuctech, the Vice-President of the Court provided useful guidance with respect to (i) the possibility for the Commission to order communication of documents stored in data centers located in third countries and (ii) the limitations on these powers, where compliance with the Commission’s decision could entangle the undertaking in criminal liability. Even if the contested decision was adopted under Regulation 2022/2560 (the “FSR”), the case is of interest for the procedure in antitrust cases.

Facts and procedure

During an inspection carried out by the Commission pursuant to Article 14(3) of the FSR, the Commission requested to have access to the content of mailboxes of certain staff members of Nuctech. The latter refused to grant access, citing emails stored on servers located in China. It introduced an application for interim measures before the General court to suspend the decision of the Commission. The action was dismissed by an order of the President of General Court. This blog post discusses the appeal order.

High threshold where financial harm is alleged

The Court makes clear that the standard to prove an irreparable damage is particularly high concerning financial harm: “it cannot, other than in exceptional circumstances, be regarded as irreparable since, as a general rule […], any such damage could be remedied by the applicant’s bringing an action for compensation” (§33). The damage must consist in financial losses that endanger the financial viability of the undertaking before the final judgment is rendered or that it affects substantially its market share (§34).

In the present case, Nuctech did not provide evidence that the administrative pecuniary sanctions that the Chinese authorities could impose on it would imperil its financial viability or its market share (§35). Additionally, Nuctech’s claim that non-financial sanctions such as a business suspension or a licence revocation are not capable of altering the solution: these sanctions do not meet the conditions of endangering the financial liability or the market share of Nuctech (§41).

Only criminal penalties may entail the suspension of the transmission order

Another (very) interesting element of the order is the precisions brought by the Court on the Lagardère ruling (C-89/24 P (R)). In Lagardère, the Vice-President decided that the condition of urgency is met where the applicant would become criminally liable by complying with the Commission’s decision (§73 of Lagardère). Here, Nuctech argued that the Lagardère solution should apply, as it will face sanctions imposed by the Chinese authorities if it complies with the order of the Commission. To reject Nuctech’s argument, the Court states that “[a]ministrative penalties cannot be treated in the same way as criminal penalties” (§37). Administrative sanctions lack the “stigma attached to a criminal conviction” (§36). Absent the stigma, the Lagardère solution cannot be applied by analogy, and the General court did not commit any error of law by considering that the harm is purely financial. This finding is questionable as we know that the ECtHR does not adopt a formalist approach concerning the criminal nature of a penalty, instead it applies the Engel criteria that insist notably on the degree of severity of the penalty. One wonders whether the Court should have examined the sanctions at hand to assess whether the Engel criteria are satisfied…

In addition, Nuctech also argued that criminal penalties could be imposed on individuals, because of the breach of an obligation under Chinese law to send information that contain State secrets without obtaining prior approval of the competent authority. The Court rejects this claim, as Nuctech did not provide evidence that the correspondence contained State secrets (§44). Nevertheless, it appears by contrast that the Lagardère solution would apply if the transmission would have engaged the criminal liability of Nuctech’s staff members.

Mere refusal from the Chinese authorities to send the correspondence to the Commission is insufficient to meet the condition of urgency

Nuctech argued that the President of the General court failed to take account of its supplemental submissions during the proceedings by which it intended to prove that the Chinese authorities refused to transmit the correspondence to the Commission.

The Court rejects the argument and confirms the analysis of the General court, indicating that what matters is not the refusal of the Chinese authorities, but rather the effect of this refusal that must be tantamount to an irreparable damage (§53). In other words, even if Nuctech proved that the Chinese authorities had refused to send the correspondence (quod non), this would not meet the legal standard, as the damage is not irreparable.

Concluding remarks

The order in Nuctech provides useful guidance for inspections carried out under Regulation 1/2003. The Court made clear that Interim measures are likely to succeed if complying with the Commission’s decision would lead to engage the criminal liability of the applicant in a third country. As noted by Komninos (here), there is a risk that third countries set up criminal sanctions to protect data stored on servers located in their territories.

As evident in Nuctech, the Court must consider laws of third countries, which may present challenges. It is crucial to assess how the Court will interpret technical legal provisions or administrative practices of third countries in subsequent cases.

By a judgment rendered on the 18th of March 2025 in the case BRD – Groupe Société Générale v. Romania (no 38798/13), the European Court of Human Rights (“ECtHR”) had the opportunity to specify the requirements of the judicial review of inspections that are conducted without obtaining an ex ante judicial authorisation. The findings of the ECtHR are of high interest for EU competition law, as inspections on business premises do not require the Commission to obtain a prior judicial authorisation, save where it is mandated by the national law of establishment of the undertaking subject to the inspection (Art. 20(7) of Regulation 1/2003). As it will be shown, the findings of the ECtHR are aligned with those of the Court of justice of the EU (“CJEU” or the “Court”) in Les Mousquetaires (C-682/20 P).

We know from the previous judgment of the ECtHR in the case Delta Pekárny (no. 97/11) that the absence of an ex ante judicial authorisation to conduct inspections does not violate per se the right to respect for home as guaranteed by Article 8 of the European Convention for Human Rights (“ECHR” or the “Convention”). Nevertheless, compliance with Article 8 ECHR requires that the absence of a prior judicial authorisation must be balanced by an effective ex post facto judicial review.

In Groupe Société Générale, the applicant argued that such an effective review lacked for two reasons: (i) Romanian law does not provide for a specific avenue to challenge the decisions taken during inspections, and (ii) the Romanian courts did not adequately examine its complaints. The ECtHR rejected these arguments and found no violation of Article 8 of the Convention.

On the first leg, the ECtHR noted that, under the Romanian competition proceedings law, it is possible to contest the validity of the inspection decisions at the end of the investigation (§112). In addition, under the Romanian general administrative proceedings law, it is possible to challenge any administrative decisions (§112). The latter remedy is open to inspection decisions, enabling the applicant to obtain a judicial review before the end of the investigation – and the applicant made use of this avenue to challenge the legality of the inspection immediately after it occurred (§113). The ECtHR concluded that the absence of a specific avenue to challenge the inspection decision does not violate Article 8 of the Convention, as the remedy provided for by the general administrative proceedings law may be sufficient to obtain an effective judicial review (§116). In short, the ECtHR does not adopt a formalist approach; what really matters is the existence of an avenue, irrespective of whether it is specific (or not) to competition proceedings.

On the second leg, the ECtHR insists on the scope of the review made by national courts. The review of the legal basis is not sufficient; it must also encompass an assessment of the scope and proportionality of the inspection (§114). To find that the judicial review made by the Romanian court was sufficient, the ECtHR noted three elements (§114). First, the national court examined the file of the competition authority to verify the existence of suspicions that documents could be found on the premises inspected. Second, it assessed the choice of the inspection among the different investigation powers and concluded that it was appropriate in view of the severity of the alleged breach of competition law. Third, the national court, while reviewing the proportionality, noted that the applicant did not substantiate any damage resulting from the inspection. All in all, the findings of the ECtHR in Société Générale are in line with Delta Pekárny: the case law is consistent in that regard.

From an EU Law perspective, the findings of the ECtHR will probably not entail a deviation from the case law of the Court. Indeed, in Les Mousquetaires, the General court, confirmed by the Court, concluded that there were six remedies available to undertakings willing to challenge a decision relating to an inspection (see, para. 44 of the Court’s ruling and paras. 90-98 of the General Court’s judgement). For both the CJEU and the ECtHR, the absence of a specific avenue does not infringe per se the right for respect for home. As far as the level of scrutiny is concerned, it appears that the EU judicature is also aligned with the ECtHR. In Les Mousquetaires, the Court mentions Delta Pekárny and considers that the judicial review of decision taken in the context of an inspection shall be both in fact and in law and the remedy must be able to provide an appropriate redress to the applicant.