Commission accused of using information requests as “fishing expedition” before EU court

27 June 2022

Like many agencies, the European Commission increasingly requests large volumes of internal documents for its antitrust investigations and merger control reviews. These requests can be highly burdensome for the parties under investigation, especially where the responses run into hundreds of thousands (or even millions) of documents and emails.

During a recent hearing before the General Court of the European Union, Meta challenged one such attempt by the Commission to gather an extensive set of documents. The dispute arose from requests sent to Meta in 2020 in relation to two separate Commission abuse of dominance investigations, relating to Facebook’s Marketplace service for classified ads and Facebook’s Data-related practices.

During the hearing, the General Court heard that the Commission had gathered almost a million documents. Meta accused the Commission of undertaking a “fishing expedition” through “vague and excessive” information requests with the aim of advancing two antitrust probes. Meta argued that the Commission had used imprecise, vague and “everyday” search terms that resulted in a vast number of results, violating the principles of good administration and proportionality. Meta also criticised the Commission for the lengthy time-frames and the number of executives targeted by its information requests. Meta likened the broad scope of the requests for information to on-sight inspections and accused the Commission of using the information requests as an alternative to conducting a dawn raid (but without the accompanying procedural safeguards that enable lawyers to closely monitor the information gathering process).

Conversely, the Commission argued that it had gathered information in a gradual manner and that prior information requests focusing on topics had yielded limited results, such that it had to redefine its requests. The Commission also argued that it is not under an obligation to justify every individual search term nor why it is appropriate as this would impose a disproportionate burden on the Commission and could jeopardise the effectiveness of its investigation.

Should Meta’s appeal be successful, the underlying Commission investigation could continue, but this would represent a rare and important example of a successful challenge to a Commission information request. The case even provides the opportunity for the General Court to provide broader guidance on how the Commission’s information gathering powers should be used (though it may be wishful thinking to hope for such extensive judicial intervention).