On 3 June 2026, the General Court of the European Union (the “Court”) dismissed actions brought by Vivendi SE and Lagardère SA against two European Commission decisions of 19 September 2023 requiring the production of documents under Article 11(3) of the EU Merger Regulation (the “EUMR”) in an ongoing gun-jumping investigation. The ruling confirms the broad scope of requests for information in European merger control probes.
Background of the Case
On 24 October 2022, Vivendi notified the Commission of its proposed acquisition of sole control of Lagardère. The transaction was cleared on 9 June 2023, subject to divestment commitments. On 25 July 2023, the Commission opened a formal investigation into whether Vivendi had breached the EUMR’s standstill and prior notification obligations by implementing aspects of the concentration before receipt of clearance.
On the basis of Article 11(3) EUMR, the Commission sent formal information requests to both Parties requiring them to produce all documents relating to certain topics or containing certain search terms, covering communications on both personal and professional channels, where those channels had been used at least once for professional purposes. Vivendi appealed the Commission’s requests, invoking the right to private life enshrined in Article 7 of the EU Charter of Fundamental Rights (the “Charter”).
Main Takeaways
Scope of Article 11 EUMR
The Court confirmed that the Commission can use its information-gathering powers under Article 11 EUMR to verify compliance with the standstill obligation, notification obligation or commitments attached to clearance. These powers are not limited to the core competition assessment. Moreover, the Commission can proceed directly to issuing a formal decision under Article 11(3) EUMR without first issuing an informal request, if it considers this necessary to prevent deletion of relevant documents or to guarantee the completeness of the response under penalty of sanctions.
Personal Devices and Messaging Applications
The Court held that the Commission’s request could extend to communications on personal devices, including personal telephones and tablets, where those devices had been used at least once for professional communications during the relevant period. The Commission’s investigatory powers would be undermined if undertakings could escape production simply because documents are labelled “personal” or exchanged using personal communication tools. Where a single message within a thread fell within scope, the Commission could require production of the full exchange for contextual understanding.
Fundamental Rights and Proportionality
The Court acknowledged that requiring disclosure of documents from personal communication tools constitutes a serious interference with the right to private life under Article 7 of the Charter given the volume and varied nature of data that may be captured. The Court also recognised the protection of journalistic sources as a cornerstone of press freedom. However, in both cases, the Court concluded the interference was justified on the facts:
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the measure was provided for by law (in this case, Article 11(3) EUMR);
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it did not grant generalised access to all personal data but was targeted by period, persons and search terms;
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it pursued the objective of protecting undistorted competition; and
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it was proportionate in light of safeguards for sensitive personal data, journalistic sources and private life material, including confidentiality, professional secrecy, treatment of sensitive personal data and ex post judicial review and formal redaction proposals for press-card holders.
Obtaining Documents from a Controlling Shareholder
The Court rejected Vivendi’s argument that it could not be expected to produce documents held by its controlling shareholder, the Bolloré Group. Vivendi had presented itself and the Bolloré Group as a single undertaking in its own notification form. Moreover, it had in practice successfully collected and transmitted the relevant Bolloré documents. The obligation was therefore clearly not impossible to perform.
Key Takeaways for Businesses
Document Discipline
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Business communications should be conducted on company-approved systems and devices wherever practicable.
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A single use of a personal device, email account or messaging app for business communications may bring it into scope for a Commission information request.
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“Bring Your Own Device” policies should make clear that business communications on personal devices may need to be preserved, searched and produced in response to regulatory process.
Scope of Production Obligations
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Commission information requests may require the production of complete message threads for context rather than isolated messages which are directly responsive to the request.
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For deal teams, internal guidance should discourage informal or speculative commentary on implementation, influence over the target, synergies or integration steps before clearance.
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The same caution applies to communications with shareholders, board members, advisers and group companies who may form part of the same undertaking.
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A subsidiary may be required to produce documents held by a controlling shareholder.
Privilege, Confidentiality and Fundamental-Rights Safeguards
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Potentially privileged content, information concerning journalistic sources and sensitive personal and private-life material should be identified early in the production process.
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Engage promptly with the Commission on appropriate safeguards, including redactions, privilege logs and staged review protocols.
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