Case T‑1097/23
Vivendi SE
v
European Commission
Judgment of the General Court (Ninth Chamber, sitting with five Judges) of 3 June 2026
(Competition – Concentrations – Request for information – Article 11(3) of Regulation (EC) 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)
Concentrations between undertakings – Administrative procedure – Request for information – Obligation to state reasons – Scope – Indication of the legal basis and purpose of the request – Identification of the infringements investigated and the undertakings covered – Infringement of the obligation to state reasons – None
(Art. 296 TFEU; Council Regulation No 139/2004, Art. 11(3))
(see paragraphs 42-44, 46-54, 62-70, 74-79, 84, 85, 90-102, 160-168, 258)
Concentrations between undertakings – Administrative procedure – Request for information – Indication of the legal basis and purpose of the request – Requirement of a necessary link between the information requested and the infringement investigated – Commission’s margin of discretion – Judicial review – Scope
(Council Regulation No 139/2004, Art. 11(3))
(see paragraphs 112-124, 152-159)
Concentrations between undertakings – Administrative procedure – Request for information – Misuse of powers – None
(Council Regulation No 139/2004, Art. 11(3))
(see paragraphs 132-143)
Concentrations between undertakings – Administrative procedure – Request for information – Obligation to state reasons – Scope – Clear indication of the evidence suggesting an infringement – Judicial review – Obligation on the General Court to check substantively the content of that evidence – Conditions
(Rules of Procedure of the General Court, Art. 90(1); Council Regulation No 139/2004, Art. 11(3))
(see paragraphs 170-176)
Concentrations between undertakings – Administrative procedure – Request for information – Absolute impossibility of implementation – Conditions
(Council Regulation No 139/2004, Art. 11(3))
(see paragraphs 183-199)
Action for annulment – Natural or legal persons – Interest in bringing proceedings – Interest in making a plea – Plea alleging an infringement of a third party’s procedural rights – Inadmissibility
(Art. 263 TFEU)
(see paragraphs 201, 202)
Concentrations between undertakings – Administrative procedure – Request for information – Powers of the Commission – Limit – Observance of the principle of proportionality – Significant workload imposed on the undertaking – Assessment of proportionality
(Council Regulation No 139/2004, Art. 11(3))
(see paragraphs 206-209, 284-298)
Concentrations between undertakings – Administrative procedure – Request for information – Requirement of a necessary link between the information requested and the infringement investigated – Discretion of the Commission
(Council Regulation No 139/2004, Art. 11(3))
(see paragraphs 211-213, 218-221, 228-231, 240-243, 250-256, 262, 263, 268, 269, 273)
Judicial proceedings – Application initiating proceedings – Formal requirements – Summary of the pleas in law on which the application is based – Pleas in law not set out in the application – General reference to other documents annexed to the application – Inadmissibility
(Statute of the Court of Justice, Art. 21, first para.; Rules of Procedure of the General Court, Art. 76(d))
(see paragraph 248, 249, 459)
Concentrations between undertakings – Administrative procedure – Request for information – Prejudice to the protection of journalistic sources – Infringement of the freedom of expression – Whether permissible – Conditions – Existence of sufficient procedural safeguards
(Charter of Fundamental Rights of the European Union, Art. 11(1) and Art. 52(1) and (3); Council Regulation No 139/2004, Art. 11(3))
(see paragraphs 301-309, 314-338)
Plea of illegality – Scope – Measures the illegality of which may be pleaded – General measure providing the basis of the contested decision – Need for a legal connection between the contested measure and the contested general measure
(Art. 277 TFEU)
(see paragraph 313)
Action for annulment – Natural or legal persons – Interest in bringing proceedings – Interest in making a plea – Need for a vested and present interest – Assessment at the time when the action was brought – Plea capable of procuring a benefit for the applicant – None – Inadmissibility
(Art. 263, fourth para., TFEU)
(see paragraphs 345-351, 371, 372, 374-380)
Concentrations between undertakings – Administrative procedure – Request for information – Interference with the private life of natural persons connected with the undertaking concerned – Whether permissible – Conditions – Limitation provided for by law
(Charter of Fundamental Rights of the European Union, Arts 7 and 52(1); Council Regulation No 139/2004, Art. 11(3))
(see paragraphs 388-402)
Concentrations between undertakings – Administrative procedure – Request for information – Interference with the private life of natural persons connected with the undertaking concerned – Whether permissible – Conditions – Respect for the essence of the right invoked – Existence of procedural safeguards regarding sensitive personal data – Condition fulfilled
(Charter of Fundamental Rights of the European Union, Arts 7 and 52(1); European Council and Parliament Regulation 2016/679, Art. 9(1); Council Regulation No 139/2004, Art. 11(3))
(see paragraphs 403-418)
Concentrations between undertakings – Administrative procedure – Request for information – Interference with the private life of natural persons connected with the undertaking concerned – Whether permissible – Conditions – Pursuit of objectives of general interest recognised by the European Union
(Charter of Fundamental Rights of the European Union, Arts 7 and 52(1); Council Regulation No 139/2004, Art. 11(3))
(see paragraphs 419-423)
Concentrations between undertakings – Administrative procedure – Request for information – Interference with the private life of natural persons connected with the undertaking concerned – Whether permissible – Conditions – Observance of the principle of proportionality – Request for information covering documents stored on the personal communication tools of employees and company officers – Documents capable of containing sensitive personal data – Request for information limited to personal communication tools used for professional purposes – Interference in the right to respect for private life which is appropriate, necessary and not disproportionate – No infringement of the right to protection of personal data
(Charter of Fundamental Rights of the European Union, Arts 7, 8 and 52(1); European Council and Parliament Regulation 2016/679, Arts 6(1)(c) and 9(2)(g); Council Regulation No 139/2004, Art. 11(3))
(see paragraphs 424-451)
Résumé
The General Court rejects in their entirety the actions brought by Lagardère SA and Vivendi SE, the applicants, against two requests for information that were addressed to them by the European Commission pursuant to Article 11(3) of the EU Merger Regulation. ( 1 ) On that occasion, it examines the extent to which the collection and analysis of exchanges of information by natural persons connected to the undertakings concerned by means of professional communication tools as well as personal communication tools, where they are used for professional purposes, are capable of complying with the right to respect for private life enshrined in Article 7 of the Charter of Fundamental Rights of the European Union (‘the Charter’).
In October 2022, Vivendi, a French group with an international dimension specialising in media and entertainment, notified the Commission of a concentration consisting of the acquisition of sole control of Lagardère, a French group active, inter alia, in the media sector.
By decision of 9 June 2023, the Commission authorised the proposed concentration, subject to the implementation of commitments entered into by Vivendi. However, the Commission suspected a potential early implementation of the concentration and opened a formal investigation in that regard.
In that context, by decisions of 19 September 2023, ( 2 ) it sent each of the two applicants a request for information requiring them to provide, inter alia, all documents relating to certain topics or containing certain search terms exchanged, sent or received from 1 January 2020 to 19 September 2023 (‘the period concerned’) by designated persons. Those documents covered, inter alia, information transmitted by means of both professional and personal electronic communication tools, provided that they were used at least once for professional purposes.
By their actions before the General Court, the applicants seek the annulment of the contested decisions.
Findings of the Court
In support of their action, the applicants submitted, inter alia, that the contested decisions infringed the right to respect for private life enshrined in Article 7 of the Charter.
In that regard, the Court considers, first, that the contested decisions constitute a limitation on the exercise of that right. In that respect, it begins by observing that the documents to be collected, processed and transmitted to the Commission may contain information relating to the private life of certain employees and company officers of the applicants.
It adds that the contested decisions refer to exchanges made by means of both professional and personal communication tools, provided that those tools were used at least once for professional communications. In addition, those decisions require that all exchanges between certain persons be surrendered where a single exchange responds to certain search terms.
Therefore, the contested decisions may require the disclosure of very varied personal data, which is difficult to determine a priori and is potentially of a large scale. Such data, taken as a whole, make it possible to draw precise conclusions concerning the private lives of the persons concerned. Consequently, the implementation of the contested decisions entails the risk of a serious interference with the fundamental right enshrined in Article 7 of the Charter.
Secondly, the General Court finds that that limitation of the right to respect for private life satisfies the four conditions in order to be justified under Article 52(1) of the Charter, namely compliance with the principle of legality, respect for the essence of the rights and freedoms concerned, the pursuit of objectives of general interest recognised by the European Union and compliance with the principle of proportionality.
As regards the first condition, the Court recalls that the legal basis authorising such a limitation must define its scope in a sufficiently clear and precise manner. The limitation at issue is provided for by an EU legislative act, namely Regulation No 139/2004, which confers on the Commission, in a sufficiently clear and precise manner, the power to adopt decisions requesting information.
As regards the second condition, the Court points out that a limitation on a fundamental right respects its essence where that limitation does not call that right into question as such, in particular where it is applicable under specific conditions provided that those conditions are satisfied.
In the present case, the information collected and transmitted to the Commission pursuant to the contested decisions is capable of providing only sparse and incidental information on certain aspects of the private life of the persons concerned. They relate to different categories of data relating to private life which are not necessarily related to each other and do not constitute a homogeneous whole.
The Court also notes that the temporal, personal and material scope of the contested decisions is defined by means of the precise definitions of the period concerned, of the persons concerned and of the search terms, with the result that those decisions do not require the applicants to collect and transmit to the Commission all the documents exchanged between its employees and company officers.
Similarly, the scope of application of the contested decisions is limited only to persons who have used their personal communication tools for professional purposes. The requests for information in question are intended to establish infringements of the competition rules, an area in which relevant exchanges may take place between the persons concerned via means of communication other than professional means. In that regard, the Court points out that, since the purpose of such a request is to obtain the information necessary to ascertain whether the suspected infringements of the obligations under Regulation No 139/2004 have occurred, information relating to the private life of the data subjects and their personal data is collected only on an incidental basis.
Furthermore, the contested decisions set out specific procedural safeguards concerning sensitive personal data, which must be identified and provided in an encrypted and separate manner.
Lastly, the processing of data provided in the context of a competition investigation is governed by general procedural safeguards designed to ensure, inter alia, security, integrity and confidentiality. Only Commission staff and officials in charge of the investigation may, if necessary, acquaint themselves with personal data. Those persons are subject to strict obligations of professional secrecy and to the prohibition on disclosing the information gathered or using it for purposes other than those for which it was obtained.
As regards the third condition, the Court points out that the contested decisions are a manifestation of the powers conferred on the Commission by Article 11 of Regulation No 139/2004 in order to carry out its task of ensuring compliance with competition law in the internal market. That objective constitutes an objective of general interest capable of justifying even a serious interference with the fundamental right enshrined in Article 7 of the Charter.
As regards the fourth condition, the Court considers, first, that the limitation on the right to respect for private life resulting from the contested decisions constitutes an appropriate measure for attaining the general interest objective of protecting competition in the internal market, since it imposes on the companies concerned the obligation to gather and transmit to the Commission the information necessary to determine whether the suspected anti-competitive practices occurred.
Next, that limitation is necessary, since the abovementioned objective cannot reasonably be achieved just as effectively by other means that are less restrictive of fundamental rights. The exchange of information within an undertaking or between undertakings takes place largely by electronic means, by means of professional, or even personal, communication tools.
The Commission’s powers of investigation in the field of competition law would risk being deprived of practical effect if undertakings could avoid the obligation to respond to a request for information on the sole ground that certain documents contain the words ‘personal’ or ‘private’ or are exchanged by means of personal communication tools, without examining whether those documents in fact contain information relating to the commercial activities of the undertakings in question.
Lastly, after weighing up the relevant factors of the case, the Court holds that the limitation on the right to respect for private life at issue is strictly proportionate, in that the disadvantages involved in the implementation of the contested decisions do not appear disproportionate to the public interest objective pursued.
In particular, those decisions do not give full and unchecked access to all the data contained in the personal communication tools of the data subjects and are not intended 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 those decisions.
As regards the link between the owner of the communication tools and the infringement at issue, the Court points out that the collection and access to any data relating to private life contained in professional and personal communication tools used at least once for professional purposes is, in principle, incidental in the context of the search for information of a commercial nature intended to incriminate the undertaking under investigation.
Furthermore, the fact that there is an ex post judicial review, expressly referred to in any decision requesting information in accordance with Article 11(3) of Regulation No 139/2004, constitutes a fundamental guarantee to ensure the compatibility of the measure at issue with Article 7 of the Charter.
The Court also states that the mere fact that the procedural safeguards set out in the contested decisions refer only to sensitive personal data and not, generally, to data relating to private life does not mean that those decisions do not respect the fundamental right to respect for private life enshrined in Article 7 of the Charter. The latter right is closely linked to the right to the protection of personal data, enshrined in Article 8(1) of the Charter.
Since the Court finds that none of the pleas in law put forward by the applicants is well founded, actions are dismissed in their entirety.
( 1 ) Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1).
( 2 ) Commission Decisions C (2023) 6428 final and C (2023) 6429 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 decisions of 19 September 2023’), as amended respectively by Commission Decisions C (2023) 7463 final and C (2023) 7464 final of 27 October 2023 (‘the decisions of 27 October 2023’) (‘the contested decisions’).