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.

The Hearing Officer plays a fundamental role in the application of EU competition rules. As a member of the staff of the Commission, his mission is clearly defined in Article 1(2) of his terms of reference: “The Hearing Officer shall ensure the effective exercise of procedural rights throughout competition proceedings before the Commission.”

When the Hearing Officer was introduced in 1982, his role was limited to chairing hearings in antitrust cases and reporting to the Competition Commissioner. However, over the years, thanks to the reforms of 1994, 2001 and, in particular, Decision 2011/695/EU of 2011, its powers have been considerably extended. Today, he is a key actor in the protection of procedural fairness and the right to be heard in procedural proceedings.

Will Wouters and Dorothe Dalheimer are currently the two Hearing Officers sitting on the Commission. They begin their work at the latest when a statement of objections is adopted, and their independence is essential to ensure that the procedural rights of all parties are protected.

But are they powerful enough, or should they have wider powers?

According to Will Wouters, the powers and duties of the Hearing Officer fall into four main categories^[1] : 

Firstly, the Hearing Officer plays a role in direct proceedings by organising and conducting hearings and deciding on the participation of third parties. Second, the Hearing Officer performs an independent review function, allowing parties to raise concerns about possible violations of their procedural rights. Thirdly, the Hearing Officer has decision-making powers, particularly on procedural issues such as time limits, access to the file, and the treatment of confidential information. In addition, they are empowered to make recommendations and submit reports to the Competition Commissioner. Finally, the Hearing Officer “may provide advice to the Competition Commissioner on any matter arising out of any antitrust or merger proceeding, including thus not only procedural but also substantive matters”.

The powers of the Hearing Officer have therefore been strengthened to ensure that he is a figure of trust! But is this enough? Is it time for an improvement on their function?

It can be said that the usefulness of the Hearing Officer has been recognized in practice. Indeed, the powers of these guardians of procedural guarantees have been extended four times since the position was created, each time at the request of businesses and the legal community. Moreover, the Hearing Officer’s decisions are rarely overturned by the EU courts, suggesting a high degree of legal reliability and institutional trust.

However, not everyone agrees on the extent of the Hearing Officer’s role. In the United States, several authors have proposed that the Hearing Officer should have a more substantive function in line with the American administrative law judge. In 2018, Terry Calvani and Jenny Leahy suggested that the Hearing Officer should assess the main points of law and fact, not just the procedural aspects, and include these findings in a final public report^[2]. 

We need to take a step back from these proposals because the US system is very different from that of the EU. Indeed, the EU competition framework already includes several levels of substantive review, by the Commissioner’s office, the Legal Service, and the Chief Economist’s team. Adding a similar task to the Hearing Officer’s function would be irrelevant and risk blurring institutional roles. In fact, substantive scrutiny is often more thorough and diverse in the EU than in any other system.

Furthermore, the assumption that the EU lacks substantive scrutiny simply because the Hearing Officer does not exercise it is incorrect. The tendency of the United States to regard its system as the universal reference does not reflect the complex and well-balanced institutional structure of the EU.

Still, there is always room to improve, and the Hearing Officer’s function could be refined in some areas. Unlike in 2011, there is little interest today in overhauling the role of the Hearing Officer and the discussion focuses more on modest and targeted improvements.

For instance, the role of the Hearing Officer could be strengthened in the field of requests for information. For now, the Hearing Officer’s only have decisional power when it relates to deadlines in the response to requests for information by decision in antitrust cases. However, certain procedural disputes, such as those that arose in the Facebook Ireland v Commission cases in 2020 (T-451/20 R and T-452/20 R), could have been resolved more effectively by the Hearing Officer if he had been granted more extensive decision-making powers. In these cases, the Hearing Officer would reach the same conclusion as the Tribunal, but with less cost and delay. This is an improvement worth considering!

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^[1] Wils Wouter, “The Role of the Hearing Officer in Competition Proceedings Before the European Commission”, World Competition: Law and Economics Review, Vol. 35, No. 3, (2012): 431-456,  https://ssrn.com/abstract=2050478

^[2] Terry Calvani, Jenny Leahy, “A larger role for the hearing officer: a modest proposal”, Journal of Antitrust Enforcement, Volume 6, Issue 2 (2018): 214, https://doi.org/10.1093/jaenfo/jnx021

“Ask a lawyer to name the most basic procedural right, he/she will likely reply: the right of defense” raised Eric Barbier de la Serre and Claire Lavin^[1]. However, the contours of this right have often been debated in Court.

Then, how can businesses properly defend themselves if they do not fully understand the scope or purpose of the investigation? This is where the requirement for a statement of reasons in requests for information (RFIs) plays a major role.

An RFI is essentially a tool used by the Commission to gather evidence during a competition investigation. Under Article 18 of Regulation 1/2003, there are two ways in which the Commission may request information. A simple request is informal and does not compel the company to respond. Adversely, a binding decision is a formal and mandatory request.

Article 18(3) of Regulation 1/2003 requires the Commission to justify binding decisions, specifying the legal basis, purpose, suspicions of infringement, and the time limit for providing the information. Therefore, the statement of reason limits the European Commission’s freedom to request “all necessary information” alongside proportionality, legal professional privilege, privilege against self-incrimination and necessity. This provision gives companies the opportunity to respond properly and allows for judicial review by the European Courts.

The Cement case (C-247/14 P) has clarified an important point. When the European Commission issues a request for information, it must clearly explain why the information is needed and what its purpose is. In this case, the Commission’s requests to cement manufacturers were vague and issued years after inspections had already taken place. The reasoning lacked detail on the alleged infringements and was too general. The Commission did not specify the products or the geographical scope of the alleged infringement. However, requests for information must be properly reasoned, as Article 296 TFEU requires. The Court rightly followed the opinion of Advocate General Wahl, who considered that the Commission’s request was excessively broad, since it covered transactions carried out over a period of ten years in twelve Member States. As Francesco Carloni and Gabriela Da Costa explained, vague requests for information can lead to “fishing expeditions”, as companies are obliged to provide large amounts of information without knowing whether it is really necessary for the investigation^[2]. 

The Cement Case especially highlighted the relevant distinction between the early and later stages of an investigation. Consequently, the statement of reasons for a decision must be considered in context. Initially, the Commission may issue broader RFIs. However, as the investigation advances and more evidence are gathered, the justification for the RFI should be more specific. In this case, the investigation was already two years old, and the Commission had enough information to clearly identify the potential infringements.

As a result, this case set a relevant precedent for future competition investigations. It raised the need for the Commission to be clearer and more specific in its information requests but also demonstrates the relevance of judicial review to ensure fairness for businesses. More generally, the case linked information requests and inspections by stressing the need for clear reasons, as in the inspection decisions. Yet, for Katri Havu, “the CJEU does not appear to try to draw a strong formal distinction between inspection decisions and information request decisions, but to highlight the difference between fact-finding at the very initial stages of an investigation and gathering information significantly later on in an investigation”^[3].

The Court’s reasoning on the minimal clarity required for the statement of reason is welcome. Clarity is essential to assess whether the information was necessary. Besides, the ruling’s implications go beyond this case, as it underlines the limits of the Commission’s power to request information, and the balance required in this field.

In the Qualcomm case handed down on 9 April 2019 (T-371/17), the General Court reaffirmed the Commission’s power to issue information requests after formal proceedings have begun, provided these requests are justified and proportional. Here, it was the case as the contested decision was adequately reasoned. It was confirmed by the CJEU.

Lately, in the Meta case (T-451/20 and T-452/20), Meta questioned the Commission’s request for documents containing specific keywords related to alleged anti-competitive practices. Meta argued that the Commission had not sufficiently explained the purpose of the investigation and denounced the broadness of the request. However, the Court dismissed Meta’s action. More specifically, the Court found that the Commission had clearly described the alleged anti-competitive practices and identified the products and services concerned. As a result, Meta could understand the need for the information requested, and this allowed for judicial review. 

Ultimately, the Court strikes a delicate balance in request for information. While it is prepared to hold the Commission to account where it goes too far and infringes the right of defense, it also provides clear guidance through its case law to ensure that the Commission’s powers are not unduly restricted.

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^[1] Claire Lavin, Eric Barbier de la Serre, « Rights of Defence and competition law: An overview of EU and national case law », e-Competitions Rights of Defence, Art. N° 81215, (2016).

^[2] Francesco Carloni, Gabriela Da Costa, “Judgments in the Cement Case: Requirement for Greater Clarity, Specificity, and Justification of Information Requests from the Commission”, Journal of European Competition Law & Practice, Volume 7, Issue 7 (2016): 459, https://doi.org/10.1093/jeclap/lpw032

^[3] Katri Havu, “Duty to State Reasons and Competition Investigation Information Request Decisions: the ‘Cement Judgments’ in Cases C-247/14 P, C-248/14 P, C-267/14 P and C-268/14 P”, Review of European administrative law (2016): 55.

Introduction

In the system of competition law enforcement, complaints play an essential role as a source of information for the Commission.[1] When receiving a complaint, the Commission has two choices: it can either initiate proceedings or reject the complaint. However, for every complaint, the Commission is obliged to examine ‘carefully the factual and legal elements brought to its attention by the complainant’.[2] The Commission has a wide discretion when deciding whether or not to reject a complaint and is in no way obliged to initiate proceedings after receiving a complaint. It can reject complaints for a number of reasons, namely: lack of legitimate interest of the complainant, lack of substantiation or foundation of the complaint, lack of connection with articles 101 and 102 TFEU, the existence of an exempt agreement, the fact that an NCA is already dealing with the case, and finally, lack of EU interest.[3] At least one of these reasons should be stated in sufficient detail when rejecting a formal complaint, in order for judicial review to be possible.

The rejection of complaints procedure involves three stages:

1. Firstly, after an initial assessment by the Commission, the complainant will be informed by the Commission of the action it proposes to take. Where it plans to reject the complaint, the Commission should set out the reasons for this intention.
2. When complainants ask for a more detailed explanation regarding the rejection, the Commission is obliged to send a formal letter pursuant to article 7(1) of Regulation 773/2004 before rejecting the complaint, after which the complainant can submit observations.
3. Lastly, if the complainant has submitted observations and insists on obtaining a formal decision, the Commission examines the additional information provided by the complainant and has to issue a rejection decision based on article 7(2) of Regulation 773/2004 if it wants to finally reject the complaint.[4]

In June 2023, during a conference celebrating 20 years of EU antitrust enforcement under Regulation 1/2003, it was stated that the Commission is considering the abolishment of the formal complaints procedure. Reasons for this were the ‘long and painful process of rejecting a complaint by a decision’ which necessitates a ‘sizable’ use of resources.[5] But is this really true and does it weigh up to the benefits of having a formal procedure?

Advantages of the formal complaints procedure

Source of information: First of all, complaints are a way in which the Commission becomes aware of possible competition law infringements. Complainants can provide insider information that could otherwise be very difficult to obtain for the Commission, thereby making competition enforcement more efficient.

Legitimacy: The formal complaints procedure ensures transparency and accountability, which enhances the legitimacy of the proceedings and ensures that it is not purely a top-down exercise.

Procedural safeguards: By having a formal complaints procedure, complainants are granted several procedural rights provided in articles 6 to 8 of Regulation 773/2004. When proceedings are initiated, they have, for example, the right to be closely associated with the proceedings, the right to be informed, the right to get access to a non-confidential version of the Statement of Objections and the right to submit observations. During a formal complaints procedure, the complainant has the right to turn to the Hearing Officer, to request access to documents on which the Commission based its provisional assessment, and the right to challenge the rejection decision before the EU courts. By removing the formal complaints procedure, thereby only leaving the possibility for informal complaints, the current procedural rights granted to these complainants disappear, and they are left to the Commission’s discretion.

Disadvantages of the formal complaints procedure

Administrative burden and delays: Due to the several stages of the formal complaints procedure, the Commission is obliged to commit resources to the examination of complaints that often get rejected in the end. This obligation can potentially delay work on other enforcement priorities.

Risk of backlog: When faced with a large number of complaints that need to be dealt with in a certain way, a backlog can be created, slowing down the overall enforcement of competition law.

Comments

The main argument put forward by the Commission to abolish the formal complaints procedure is the time- and resource consuming nature of it. In the 2024 staff working document on the evaluation of regulations 1/2003 and 773/2004, it is said that the formal rejection of complaints takes on average almost six full-time employees per year.[6] This debunks the narrative that significant time is spent dealing with complaints that are rejected in the end. When balanced against the increase in legitimacy of the system together with the creation of procedural rights for complainants, the latter should take precedence over time concerns. Procedural efficiency is only one of the considerations regarding competition law enforcement, and this aspect should not overshadow the importance of procedural safeguards. Instead of abolishing the formal complaints procedure in its entirety, the Commission could also think about introducing more stringent conditions for the filing of a complaint or better communicating its priorities to market actors, without however misusing these tools. A formal complaints procedure with a strong prioritisation policy by the Commission allows it to focus its resources on the most harmful infringements while still upholding complainants’ rights and fostering the system’s transparency and legitimacy.

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[1] Recital 5 Regulation 773/2004.

[2] Paragraph 42 Notice on the Handling of Complaints.

[3] Article 5, 9 Regulation 773/2004; Paragraph 45, 47 Notice on the Handling of Complaints; Recital 18, article 13 Regulation 1/2003.

[4] Paragraphs 139-141 Commission Notice on best practices for the conduct of proceedings concerning articles 101 and 102 TFEU.

[5] https://vimeo.com/user126290491/review/840005687/ea689de96e.

[6] Commission Staff Working Document – Evaluation of Regulations 1/2003 and 773/2004, Brussels, 5 September 2024, SWD(2024) 216 final, p. 67.

Introduction

On 20 April 2023, the Court of Justice rendered a judgement in the Amazon Buy Box case concerning parallel investigations by the Commission and the Italian competition authority.[1] The Italian authority had launched an investigation into Amazon’s “Buy Box” tool in April 2019, after which the Commission opened formal investigations into the same practice in November 2020.[2] When defining the geographical scope of its investigation, the Commission explicitly carved out Italy.[3] In this blogpost, we will take a look at the division of competences between the Commission and the national competition authorities, examine the judgements in the Amazon Buy Box case and see what this case means for parallel investigations under article 102 TFEU.

Procedural boundaries between the Commission and NCAs

Regulation 1/2003 established a system of parallel competences where both the Commission and the member states are competent to apply articles 101 and 102 TFEU. However, this principle is limited by article 11(6) of this regulation, which states that ‘the initiation by the Commission of proceedings for the adoption of a decision under Chapter III shall relieve the competition authorities of the member states of their competence to apply articles 101 and 102 of the Treaty.’ This is repeated in paragraph 51 of the Commission’s Cooperation Notice, where it can be read that the initiation of proceedings by the Commission ‘shall relieve all NCAs of their competence’.  Furthermore, paragraph 5 of this notice states that ‘under this system of parallel competences, cases will be dealt by: a single NCA, several NCAs acting in parallel, or the Commission’. The notice thus does not seem to allow an investigation which is conducted both by the Commission and by an NCA at the same time, and this situation is normally avoided by applying article 11(6) of Regulation 1/2003.

Judgment in Amazon Buy Box

When initiating proceedings against Amazon, the Commission defined the geographical scope of its investigation as covering the whole EEA, with the exception of Italy. This carve-out was justified by the Commission by reference to the ongoing investigation of the Italian competition authority which, despite covering nearly identical practices, addressed ‘partially similar concerns’ with ‘a particular focus on the Italian market’.[4] The Commission added that there would be close cooperation between the two authorities during the investigation.

Amazon appealed this opening of proceedings by the Commission in 2021 insofar as it excluded Italy from its scope. Amazon argued that this decision deprived it of the protection against parallel proceedings granted by article 11(6) of Regulation 1/2003. The General Court dismissed Amazon’s action on the basis that the opening of proceedings did not alter Amazon’s legal position as it was merely a preparatory act, rendering the action inadmissible.[5] Furthermore, it held that article 11(6) did not grant Amazon a right to have its case handled exclusively by the Commission.

On appeal, the Court of Justice confirmed the General Court’s judgment, emphasizing in paragraph 31 that ‘the protection afforded by Article 11(6) of Regulation No 1/2003 applies only in the event of parallel proceedings brought by the competition authorities of the member states and the Commission against the same undertakings in respect of the same allegedly anticompetitive conduct occurring in the same product or geographical markets and over the same period or periods.’ This was not the case here precisely because of the Commission’s carve-out of Italy from its geographical scope.

Comments on the case

When looking at the Commission’s Cooperation Notice, there does not seem to be a possibility for the Commission to simultaneously handle a case in parallel with an NCA. Moreover, it is stated that the initiation of proceedings by the Commission relieves ‘all’ NCAs of their competence. When dealing with the same behaviour, it is preferable to have a single investigation covering the whole relevant geographical scope, concluded by a single decision. This can avoid conflicting decisions and prevents an unnecessary use of resources.

Moreover, an NCA is not allowed to take decisions that run counter to a Commission decision according to article 16(2) of Regulation 1/2003. This means that when the Commission concludes that an infringement has been committed, the NCA would be obliged to adopt the same decision. This in turn can trigger a ne bis in idem issue. According to cases Bpost and Nordzucker, there are three cumulative conditions for such an issue to arise: unity of the identity of the facts, of the offender and of the legal interest protected.[6] Limiting parallel investigations to cases where the carved-out market presents specific characteristics that make the relevant NCA better placed to handle the case, would avoid problems like this and ensures that there can only be two decisions when justified.

Lastly, it is true that the opening of proceedings is not a challengeable act since it is of preparatory nature and does not affect the parties’ legal positions. In principle, parties should wait until the final decision in order to appeal. However, can the same be said about the specific carve-out made by the Commission in the opening decision? Although the General Court and the Court of Justice did not think this made any difference, it can be debated whether a party’s legal position is affected by the fact that they are forced to face two proceedings.

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[1] Judgement of 20 April 2023, Amazon and others v Commission, Case C‑815/21 P, ECLI:EU:C:2023:308.

[2]https://en.agcm.it/en/media/press-releases/2019/4/A528; https://ec.europa.eu/competition/antitrust/cases/dec_docs/40703/40703_67_4.pdf.

[3] https://ec.europa.eu/commission/presscorner/api/files/document/print/en/ip_20_2077/IP_20_2077_EN.pdf.

[4] https://ec.europa.eu/commission/presscorner/detail/en/ip_20_2077; https://www.concurrences.com/en/bulletin/news-issues/april-2023/the-eu-court-of-justice-confirms-that-the-eu-commission-can-exclude-a-member.

[5] Judgement of 14 October 2021, Amazon and others v Commission, Case T-19/21, ECLI:EU:T:2021:730.

[6] Judgement of 22 March 2022, Bpost v Commission, Case C‑117/20, ECLI:EU:C:2022:202; Judgement of 22 March 2022, Nordzucker, Case C-151/20, ECLI:EU:C:2022:203.

Our European society is more connected than ever. The creation of hundreds or thousands of files per day, the storage of huge amounts of data and the democratization of the cloud impose an obligation on companies to manage this data, often containing very sensitive information related to them.

The enforcement of European competition law must nowadays take account of the challenges that have arisen in this new digital economy, especially in the use by the Commission of its investigative powers. When the institution suspects a serious infringement of competition law and a possible destruction of evidence, it can issue a decision that will allow the conduct of “dawn raids”, therefore obliging the undertakings concerned to comply and cooperate.

Article 20(2) of Regulation 1/2003 provides that during inspections, inspectors can examine books and other records related to the business, and are therefore entitled to search through laptops and other devices, having unrestricted access to them. Business records include all documents, irrespective of their format, i.e. emails can be seized as well as digital files, USB drives…¹ Moreover, Regulation 1/2003 allows the Commission “to take or obtain in any form copies of or extracts” from these records. EU officials are granted a wide margin of discretion because they can copy digital data and use innovative tools to recover deleted files. 

The challenge of determining to what extent digital data can be seized and collected during dawn raids is high. As the concentration of data through different digital platforms grows, the Commission tries to extend its access to capture all useful data for evidence gathering purposes. Assisted by its forensic team, the collection of digital data goes way further than laptops and services inside the company, but deviates to instant messages, clouds and other digital devices provided that they are used for business activities. 

The incredibly intrusive nature of dawn raids suggests that inspections covering digital data need to comply with procedural safeguards, especially those enshrined in Article 8 ECHR (respect for private life and correspondence). The Vinci Construction judgment rendered by the ECtHR in 2015² was an opportunity for the Court to reaffirm the conditions of lawfulness of  a dawn raid : it is prescribed by law, it pursues a legitimate aim and is necessary and proportionate. However, can we consider that the extension of the inspection to all data contained in company chats, private messaging conversations and private company devices is proportionate and complies with fundamental rights? It seems, in relation to this case law, that a violation would be likely considered since judicial protection against excessive investigations has been reinforced. 

Should the inspection be proportionate, any action intended by employees to delete or cover relevant data would be fined for obstruction to the investigation. This question is relevant and important because the Commission’s request to access unusual supports became part of its wide investigative powers. The nuance is that private conversations cannot be monitored by employers but, if the Commission observes an incomplete transparency in seized documents and data, the undertaking will be held liable. 

That is precisely what happened when, during an inspection at the premises of International Flavors & Fragrances in March 2023, the Commission asked to review the mobile phones of certain employees, and observed that one of them intentionally deleted WhatsApp messages (instant messages) exchanged with a competitor that contained commercially sensitive information. The company was fined an amount of €15.9 million, despite having helped to recover the deleted data. This event was a turning point in the history of European competition law as it was the first time that an undertaking was fined for having deleted instant messages on a mobile phone³. 

What to expect in the near future regarding the conduct of dawn raids involving the access and treatment of digital data? We can assume that the Commission and the national competition authorities will continue to extend the means to get access to digital data, in light of the wide powers enshrined in Regulation 1/2003. Given that leniency applications have decreased over the years and the amount of dawn raids remained stable, having access to more data while being protected from allegations of violation of fundamental rights will allow a more effective competition law enforcement. 

Nevertheless, one major issue that competition law enforcers need to consider lies in the access to the cloud. Due to the new ways of working adopted by undertakings with remote work, business data is often contained in the cloud. Employees can easily access it at home via different working applications and devices. It is however a very technical task to select the relevant information, and the Commission may require a large cooperation by inspected companies. This in turn increases the risks of obstruction to the inspection… 
That is why, in order to reduce the risks of obstruction due to the collection of extensive digital data, all employees must be aware of the scope of inspections, which includes instant messages to competitors. Furthermore, working from home during the day of the inspection does not mean that they are excluded from the obligation to give their personal device containing business information (meaning not deleting anything). The Commission, in its revision of Regulation 1/2003, has considered introducing a “freezing order” that would impose temporary restrictions on the deletion or alteration of data⁴. This would provide more clearance of inspected undertakings.

1.  L. Ortiz Blanco, European Union Competition Procedure, Chapter 8 on Inspections. ↩︎
2.  Judgment of 2 April 2015, Vinci Construction et GTM Génie civil et services c. France, ECLI:CE:ECHR:2015:0402JUD006362910. ↩︎
3.  Francesca Miotto, “European Union: dawn raids prove critical for authorities to manage dynamic markets and emerging tech”, Global Competition Review, 25 April 2025.
   https://globalcompetitionreview.com/market-review/market-review-cartels/2025/article/european-union-dawn-raids-prove-critical-authorities-manage-dynamic-markets-and-emerging-tech. ↩︎
4.  Liliane Gam, Elisha Kemp, “Hold the phone: antitrust authorities looking closely at instant messages in dawn raids”, Linklaters, 12 July 2024.
   https://www.linklaters.com/en-us/insights/blogs/linkingcompetition/2024/july/hold-the-phone-antitrust-authorities-looking-closely-at-instant-messages-in-dawn-raids. ↩︎

The Leniency Notice adopted in 2006 introduced the possibility for undertakings to apply for immunity from fines, provided that they are the “first to submit information and evidence which will enable the Commission to (a) carry out a targeted inspection in connection with the alleged cartel ; or (b) find an infringement of Article 81 EC in connection with the alleged cartel”. The prospect of obtaining full immunity is one reason for the success of the Leniency program, especially since the amounts of fines imposed for cartel infringements has increased in recent years¹. In that sense, a leniency application results from a balance between costs and benefits, meaning that it must be sufficiently incentivizing for an undertaking to want to expose the cartel. However, we observe that after assessing the risks, cartelists struggle to see a real benefit in revealing the cartel², and prefer to adopt a “wait and see” strategy, which can be reflected in the settlement procedure.

The settlement procedure is initially designed as a complementary tool to leniency, requiring undertakings to acknowledge their unlawful behaviour in exchange for a reduction of fines. Although both tools aim at cartel deterrence, they occur at different stages of the proceedings: while the application for leniency is introduced before the onset of the investigation, the settlement procedure takes place at a later stage, in order “to speed up final resolution and reduce all parties’ legal costs”³. In this sense, “settlement is a procedural efficiency instrument while leniency is an instrument to gather evidence”⁴. In that regard, the settlement procedure is useful for undertakings that colluded and decided not to reveal it, but all the difficulty in the implementation of this tool resides in the risk of undermining the effectiveness of leniency.

Consider a simple case where the undertakings, after assessing the costs and benefits to apply for leniency, decided not to reveal the cartel. The Commission then decides, post investigation, to offer them a settlement. They accept the offer. At that moment, the risk of a pro-collusive effect is high: the major challenge for the institution, through the bilateral settlement discussions, is now to set an appropriate settlement amount that does not reduce the incentive to apply for leniency. Indeed, the lower the settlement amount (i.e., the lower the fines), the higher the expected value to collude and not reveal (which leads to an increase of cartel formation and reduces the effectiveness of leniency).

The Commission therefore has to balance between the need to offer a settlement that is attractive enough for undertakings to accept, but without making it too generous as it could increase the profitability of collusion⁵. An inappropriate amount will encourage cartelists to adopt a “wait and see” strategy, i.e., not reveal the cartel in the first place⁶. This obviously contributes to another challenge of the settlement procedure, which is not to reduce the deterrence effect of the leniency program.

On that matter, the Settlement Notice provides for a reduction of fines of 10%, but this percentage cannot in any way be applied systematically to every fines reduction granted to cartelists. One criterion that contributes to the deterrence effect of the settlement procedure is the asymmetry of the settlement fine reductions between undertakings. In other words, the first undertaking to accept the settlement procedure is granted the highest fine’s reduction. This uncertainty regarding the amounts will de facto lead to a  “race to settle”, and ensure the effective enforcement of cartel cases. Moreover, it can also strengthen the leniency mechanism , because the fear of ending up with the less favourable offer will encourage undertakings to take the lead and reveal the cartel. 

However, this deterrence mechanism may be insufficient to protect against the decrease in incentives to apply for leniency, if the latter is structurally failing. We notably observe that for undertakings which would come second or third to reveal the cartel, their incentive to apply for leniency decreases, because they would only benefit from a reduction of fines. It has been revealed that in cases concluded under the settlement procedure, 85% of the parties benefited from leniency⁷. That shows that non-first leniency applicants prefer to wait and negotiate a settlement at a later stage of the procedure, rather than expose themselves at the beginning. That is why cartel deterrence needs to be supported by other active tools, especially ex-officio: in Italy, cartel enforcement remains strong particularly because of an effective cooperation between agencies, which protects incentives for companies to self-report⁸.
As a result, there is no doubt that settlement fine reductions contribute to the success of that procedure, but also impact the effectiveness of the leniency procedure. Clear responses remain to be seen and this is up to the European Commission to ensure the real complementarity of these tools which cannot lead to an exclusionary effect of one mechanism due to the wrong calibration of fines, which is clearly stated in a case-by-case analysis. This task is even more complicated since we could argue, on the contrary, that a higher amount of fine reduction of 20 or 30% would not impact the attractiveness of the leniency program, as leniency applicants benefit from immunity or reduction of fines up to 50%. Furthermore, the percentage of fine reduction of 10% set currently for the settlement procedure might not be sufficient to incentivise undertakings which have not applied for leniency, to settle⁹.

1.  Johan Ysewyn and Siobhan Kahmann, “The decline and fall of the leniency programme in Europe”, Concurrences n°1-2018, pp.44-59. ↩︎
2.  L. Ortiz Blanco, “European Union Competition Procedure”, Chapter 6 on Leniency. ↩︎
3.  Matthew Strathearn, Zhiqi Chen, Thomas W.Ross, “Settlements in the presence of leniency programs: Costs and benefits” Wiley online library, September 1st, 2023, https://doi.org/10.1002/mde.3991. ↩︎
4.  Website of the European Commission, “Competition Policy: Cartel cases settlement procedure”, 2023. ↩︎
5.  “Settlements in the presence of leniency programs: Costs and benefits”, supra note 3. ↩︎
6. OECD “The Future of Effective Leniency Programmes: Advancing Detection and Deterrence of Cartels”, OECD Competition Policy Roundtable Background Note, 2023. ↩︎
7.  Wouter Wils, “The European Commission’s cartel settlement procedure : An assessment after fifteen years”, Concurrences N° 3-2024, Art. N° 119526, September 2024. ↩︎
8.  OECD, “Alternatives to Leniency Programmes – Summaries of contribution”, 7 December 2023, p.10. ↩︎
9. Virgilio Pereira, “Antitrust leniency and settlement policies in the EU and the UK”, Thesis, King’s College London, September 2022, p.125. ↩︎