Vivendi/Lagardère: EU General Court dismisses human rights objections and confirms Commission’s broad information-gathering powers in merger investigations

Vivendi and Lagardère argued that the requirement to produce communications from personal devices contravened the right to respect for private and family life enshrined in Article 7 of the Charter and Article 8 of the ECHR.

The General Court recognised that the RFI was ultimately liable to give rise to the sharing of personal data of a very varied nature and potentially of large scale. It also recognised that the information from personal devices was liable to provide information on the sensitive aspects of the private lives of the persons concerned. Accordingly, compliance with the RFI carried the risk of a serious interference with the fundamental right to a private life. 

Nonetheless, the General Court decided that this interference was justified on the basis that it was provided for by law, limited in scope (and therefore respected the essence of the right to private life), occurred in pursuit of the protection of competition in the single market (an objective of general interest recognised by the EU), and was proportionate to that objective. The General Court noted that limiting the RFI, by using precise definitions of the relevant period, persons concerned and search terms, and by only including personal devices to the extent they had been used at least once for professional purposes, gave sufficient protection to the right to private life. 

The General Court further reasoned that requesting documents from personal devices (subject to the above limitations) was necessary because the Commission’s investigative powers in the field of competition law would be at risk of being deprived of their effectiveness if parties were able to evade the obligation to respond merely on the ground that certain documents were personal or private, or exchanged using personal devices. Moreover, procedural safeguards – including a virtual data room procedure – had been put in place to protect sensitive personal data.

Similar to the argument raised in respect of the right to private life, Vivendi and Lagardère argued that the RFI, and the Commission’s powers of investigation more broadly, infringed the protection of journalistic sources guaranteed by Article 11 of the Charter and Article 10 of the ECHR.

The General Court acknowledged that an order to disclose such sources can have a detrimental impact on them and the relevant publication. Such requests must therefore be justified by an overriding public interest requirement, and must incorporate sufficient procedural safeguards.

In this case, the General Court concluded that the safeguards available to journalists, including the possibility of review by a judge as well as processes implemented by the Commission that were inspired by those used to preserve legal privilege, were sufficient to protect sources that would otherwise be captured by the RFI. In practice, this meant journalists concerned by the RFI could review the documents deemed responsive, identify any information covered by the need to protect sources, and provide redacted versions (or withdraw the document if it was not possible to provide a non-confidential version). The applicant was also then required to provide a summary table detailing the nature of the information redacted or withdrawn. The General Court noted that the Commission’s decision made the case law concerning the confidentiality of lawyer-client communications equally applicable to this case, therefore providing a complete system of legal remedies and judicial protection to the journalists involved. Although those safeguards were not formalised until January 2024, Vivendi had not transmitted any documents before then. Additionally, individual Commission decisions under that mechanism were also capable of being challenged before the EU Courts, giving Vivendi an effective right of review. 

Vivendi and Lagardère argued that the RFI infringed the principle of proportionality, on the basis that the scope of the information requested – including the requirement to provide entire conversation threads – was excessive, and responding to the RFI imposed a disproportionate burden. 

The General Court acknowledged that the information requested was voluminous, and that there must be a correlation between the specific request for information and the suspected infringement, but ultimately dismissed these arguments. 

As a preliminary point, it observed that the EUMR confers a broad information-gathering power on the Commission. This power is exercised legitimately if it was reasonable for the Commission to assume, at the time of making a request, that the relevant information was likely to help it determine the existence of an infringement. 

With this in mind, the Court concluded that: the almost four-year period covered by the RFI was justified, as the start date of that period reflected the date Vivendi first invested in Lagardère; the approximately 100 search terms were appropriate for identifying the relevant documents; and the requirement to produce the entire conversation (during the relevant period) when a single message was in scope was necessary to facilitate the Commission’s understanding of the context. 

Further pleas were raised by the parties, focusing on technical and procedural points:

• Vivendi argued that it was impossible for it to produce documents originating from the Bolloré group (its controlling shareholder) as they were outside of its control – despite having provided them to the Commission;
• both parties argued that the RFI was a misuse of the Commission’s information-gathering power - submitting that it should only be used to assess the compatibility of the concentration with the internal market, which had already been decided and approved; and
• both parties said the Commission failed to provide sufficient reasons in the RFI. 

Unsurprisingly, the General Court dismissed each of these in turn, confirming that the Commission was acting properly and within the scope of its powers, and that ensuring compliance with the standstill obligation was one of the duties assigned to it under the EUMR.