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set aside the judgment under appeal;

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annul Commission Decision C(2020) 3011 final of 4 May 2020 relating to a proceeding pursuant to Article 18(3) and to Article 24(1)(d) of Council Regulation (EC) No 1/2003 (Case AT.40628 — Facebook Data-related practices), as amended by Commission Decision C(2020) 9231 final of 11 December 2020 (‘the contested decision’);

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refer the case relating to the second and third grounds of the application for annulment back to the General Court for redetermination; and

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order the Commission to bear the entirety of the costs of these proceedings and to adjust the order on costs in the judgment under appeal in order to reflect the outcome of the appeal.

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The General Court erred in law at paragraphs 134, 138, 140, 143 and 146 of the judgment under appeal in finding, in essence, that the principle of necessity was satisfied merely because the Commission could reasonably suppose, regarded wholly in the abstract, that the search terms could help it to determine whether the conduct in recital 4 of the contested decision took place. The General Court failed to give any (alternatively sufficient) weight to the fact that the unduly general search terms the Commission had selected, when applied across all of the custodian’s documents over the entire period, were bound to give rise to a vast preponderance of documents that would bear no connection at all to the investigation (and many of which would contain sensitive personal or commercially confidential information), in circumstances where the Commission was aware in advance that this would be the case.

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The General Court infringed the obligation to state reasons in respect of alternative, more proportionate searches at paragraph 136 of the judgment under appeal and also at paragraphs 140, 143 and 146 which simply cross-refer to paragraph 136.

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The General Court erred in law at paragraph 150 of the judgment under appeal insofar as it held that documents can be considered irrelevant to the investigation ‘ only after the search terms have been applied to the applicant’s databases ’. In practical terms, such an approach runs the real risk of rendering the principle of necessity non-justiciable. It in effect, gives a discretion to the Commission that is without limits and renders the principle of necessity redundant. It is not a correct interpretation of the legal requirement of necessity (and proportionality) to allow an authority to apply manifestly overly broad search terms over a vast number of documents that generate a huge amount of irrelevant and confidential responsive documents. paragraph 150 also ignored and distorted the true sense of the appellant’s evidence that the Commission was aware in advance that its search terms would capture an overwhelming predominance of irrelevant documents (as proved to be the case).

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The General Court erred also in law at paragraphs 152–153 in refusing to consider the legal framework applicable to inspection decisions to be relevant to requests for information and by permitting the Commission to request documents without the safeguards or filters equivalent to those granted during inspections under Article 20 of Regulation No 1/2003.