On 14 May 2025, the next round of the Vivendi/Lagardère battle against Commission RFIs unfold in a court hearing in front of the GC. A perfect opportunity to recapitulate on the “what happened so far”.

In July 2023, the Commission opened an investigation of a potential early implementation (gun jumping) of the initial Vivendi/Lagardère merger, originally cleared subject to conditions (for the merger case see M.10433, the gun-jumping see M.11184). In this context, the Commission sent RFIs under Article 11(3) EUMR to the parties, which were later challenged. In the interim proceedings T‑1097/23 R (Vivendi) and T‑1119/23 R (Lagardère), the GC rejected their applications for suspension of the RFIs. Upon appeal in C‑90/24 P(R)-R and C‑89/24 P(R)-R, the ECJ VP however found that the Parties demonstrated infringements of the parties’ rights of defence by the GC’s dismissal for suspension of the RFI. Consequently, the ECJ VP ordered suspension of its execution until the GC decides further: the ECJ VP held that infringements of the rights against self-incrimination, rights to privacy and protection of journalists’ sources when assessing the urgency criterion. However, the prima facie case / fumus boni juris criterion needed still to be assessed by the GC. Then, in June 2024, the GC VP ordered the suspension of the RFIs’ execution until the end of the main proceedings, insofar as information on private life has not yet been transmitted to the Commission. Data already received by the Commission shall be kept sealed. So long, the parties are not required to further comply with the RFI. Now, a first judgment in the main proceeding may require the Commission to exercise stricter scrutiny while investigating by RFIs.

The cases have an impact on the Commission’s powers under Article 18 Regulation 1/2003 (Reg 1), in classic antitrust proceedings. While undoubtedly, the investigatory powers of EUMR and Reg 1 are based on two different legal instruments, the similarities in wording and basic requirements remain. The similarities already existed in the parallel preceding Regulations 17 (antitrust) and Regulation 4064/89 (ECMR), in their respective Articles 11. Both regulations also evolved similarly. With recasting the antitrust procedural framework into Reg 1 in 2003, and the recasting of the ECMR into the EUMR in 2004, for example, the former mandatory requirement to issue a non-binding RFI before a decisional RFI was abolished under both regulations (see Article 11(5) ECMR, or Article 11(5) Regulation 17). The standards may be applied even more by analogy to Article 18 Reg 1 because the Commission investigated finable infringements, see Article 14(2) EUMR.

Now what conclusions can be drawn and what is still open? Vivendi and Lagardère are both cases where the Commission’s search terms and their operation that had been ordered in the RFIs yielded results, which highly likely pertained to private information. In the Lagardère case, that disclosure would have entailed criminal liability under French law. In both cases, the information effectively sought by the Commission was held on dual-use devices, i.e., professional devices where private usage was allowed for, or private devices that were used at least once professionally. If certain private data (sensitive, strictly personal) was to be disclosed under compliance with the RFI, the Commission foresaw a virtual data room procedure to keep private data under limited access within the Commission. At least in the interim procedures, the Courts did not find this sufficient a protection. Suspensions had thus been ordered. The orders are remarkable: At least in interim proceedings, the Court held that search terms of “general nature” lead to encroachments upon private life, and that the virtual data room procedure cannot undo this encroachment. Whether this procedural balancing is still sufficient, remains to be seen in the judgment in the main proceedings. Additional further clarification may be made with regards to the quality of the search terms and their operation. In the Vivendi case, the ECJ considered “sensitive data”, “strictly personal data”, and a broader spectrum of data pertaining to private life. The latter, seemingly broadest criterion was retained by the Court. What precise data has been uncovered by the Commission remains to be seen, and with it potentially an overhaul of the standards how the Commission may investigate with RFIs, where businesses tend to allow private usage on corporate devices.

In the (first) final showdown, the GC’s may give important clarifications to the Commission how to operate RFI proceedings. This may then still be appealed by the Commission, going then in the final final round before the ECJ. The overall question remaining to be answered is: is a privacy exception exceptional (to these cases) or may it be generalised? To be seen soon.