Procedural Themes In EU Merger Enforcement: Key Lessons From The General Court’s Vivendi/Lagardère Judgments

On 3 June 2026, the General Court (the Court) delivered twin judgments in Vivendi SE v Commission (T-1097/23) and Lagardère SA v Commission (T-1119/23), dismissing challenges to binding information request decisions issued under Article 11(3) of the EU Merger Regulation (EUMR). Both cases arose from the Commission's post-clearance investigation into potential gun-jumping in the context of Vivendi's acquisition of exclusive control over Lagardère SA. The deal was conditionally cleared on 9 June 2023 but became subject of a formal gun-jumping investigation on 25 July 2023, with binding information requests addressed to each party on 19 September 2023.

The rulings address four interconnected procedural themes: i) the scope of Article 11(3) EUMR as a post-clearance investigative tool; ii) the Commission's authority to access personal devices and private messaging applications; iii) the primacy of EU law over national legal barriers; and iv) the protection of journalistic sources. Each of those themes carries direct and practical consequences for companies operating within the EU merger control framework.

These developments also echo, and in certain respects extend, the procedural trends examined in our recent article analysing unannounced inspections under Regulation 1/2003: From Indicia to Duration: Emerging Procedural Themes in EU Dawn Raids. That article examined four procedural themes from recent case law, namely the standard of evidence required to justify an inspection, the duration of on-site and off-site review, the treatment of private and mixed-use devices, and the extraterritorial reach of data collection. The Vivendi and Lagardère judgments demonstrate that the same underlying tensions, between enforcement effectiveness and procedural fairness, are now being actively litigated in the distinct context of post-clearance merger investigations.

THE INVESTIGATION AND THE INFORMATION REQUESTS 

Vivendi notified the proposed concentration, its acquisition of exclusive control over Lagardère, on 24 October 2022. The Commission conditionally cleared the transaction on 9 June 2023, subject to divestment commitments including the sale of Editis (Vivendi’s book publishing business) and Gala magazine. Because the divestiture commitment was subject to an upfront buyer requirement, Vivendi remained bound by the standstill obligation until the Commission had approved both the buyer and the sale terms, meaning it could not implement the merger in the interim. Breach of that obligation can result in fines of up to 10% of group-wide worldwide turnover. By letter of 25 July 2023, the Commission informed Vivendi that it was opening a formal investigation into possible early implementation of the concentration.

By decisions of 19 September 2023, adopted under Article 11(3) EUMR, the Commission addressed separate binding information requests to Vivendi and Lagardère, seeking information to assess whether Vivendi had exercised decisive influence over Lagardère in breach of the notification obligation, the standstill obligation, and/or the conditions attached to the clearance decision.

The definition of “documents" in both decisions was deliberately broad, covering electronically stored information including emails and instant messages (WhatsApp, SMS, Telegram, Signal), drafts, metadata, and deleted documents still accessible from back-up systems. Critically, it extended to private or personal email accounts and mobile devices where those had been used at least once for professional communications.

The scale of the Vivendi request was particularly striking. It targeted fifteen named individuals, including senior management and card-holding journalists, and required the application of approximately one hundred search terms across emails, WhatsApp, Telegram, Signal, SMS messages, and deleted files still recoverable from IT systems. It covered a period of nearly four years, running from March 2020, when Vivendi first acquired a stake in Lagardère, to the date of the decision. Vivendi estimated that compliance would require the disclosure of tens of thousands of documents.

Vivendi and Lagardère challenged the Commission’s information requests before the General Court, which dismissed their appeals.

THE GENERAL COURT’S RULINGS

Article 11(3) EUMR does not expire at clearance

A central argument of the challenges was that Article 11(3) of the EUMR can only serve as a legal basis for information requests aimed at assessing the compatibility with the internal market of a notified concentration, and that recourse to the provision was no longer available once clearance had been granted.

The Court firmly rejected this argument in both cases. It held that Article 11(1) EUMR allows the Commission to request all information necessary to exercise its powers under the EUMR. This includes establishing possible infringements of the notification obligation, the standstill obligation, and compliance with conditions and obligations attached to a conditional clearance decision. The Court relied in particular on Articles 7 and 8(2) EUMR — the standstill provision and the power to impose conditions and obligations — as obligations the Commission must be able to enforce and concluded that the Commission could validly base its post-clearance information requests on Article 11(3) EUMR. 

Digital evidence and the personal device threshold

The most closely watched aspect of both judgments was the Court's treatment of personal devices and private messaging applications. Both companies resisted the Commission's demand for communications from personal phones, tablets, and private email accounts, invoking the right to private life under Article 7 of the EU Charter of Fundamental Rights (Charter) and Article 8 of the European Convention on Human Rights (ECHR).

Referring to the principles set out in HeidelbergCement (C-247/14 P) and Qualcomm (C-466/19 P), the Court held that the Commission only has to set out the purpose of the investigation in its information request and does not have to explain why each individual search term, custodian, or time period has been selected.

In both cases, the Court found that the requests were capable of a potentially serious interference with Article 7 of the Charter, given the breadth of the request and the inclusion of personal tools used at least once for work purposes. However, the Court held that the Commission’s approach was justified: in a digitised environment, the Commission's investigative powers would be deprived of effectiveness if companies could refuse production merely because communications are labelled "personal" or because they are conducted via personal tools. The measure was targeted and controlled — it did not grant full and uncontrolled access to all personal-device data, nor did it create a continuous surveillance regime — and the disadvantages were not disproportionate to the objective of protecting competition, particularly given the availability of judicial review. 

On proportionality more broadly, the Court found that the nearly four-year time period covered by the information requests was justified, accepted the production of entire conversation threads as proportionate, and confirmed (based on Cementos Portland Valderrivas (T-296/11)) that a large workload involved in responding is not in itself sufficient to render a request disproportionate. The Court also expressly rejected the argument that a higher usage threshold should be required before personal tools fall within scope, as raising the threshold would risk missing relevant documents and informal personal channels may be deliberately used in the context of competition infringements.

The Court also noted that the Commission’s decisions already required sensitive personal data within the meaning of Article 9 GDPR to be provided separately, encrypted, and clearly identified. 

A virtual data room procedure had also been added for documents with no link to commercial activities, but which contained sensitive personal data. Only Commission staff directly responsible for the investigation may access personal data obtained, subject to strict professional secrecy obligations under Article 339 TFEU.

EU law primacy over national restrictions and impossibility of compliance

Both companies sought to invoke French law as an obstacle to compliance. Lagardère argued that provisions of the French code pénal, criminalising the interception or disclosure of private correspondence without consent, prevented it from sharing employees' private messages with the Commission. Vivendi separately argued that it could not produce documents held by the Bolloré Group, which controls Vivendi, and that compliance was therefore objectively impossible.

The Court recalled the principle of primacy of EU law over Member State legislation and held that national criminal or privacy rules could not prevent compliance with a binding EU information request. It further noted that Article 122-4 of the French Penal Code, which excludes criminal liability for acts authorised by legislative provisions, in any event undermined Lagardère's claim of criminal exposure. French labour-law objections were dismissed in both cases as insufficiently substantiated. On impossibility, the Court confirmed, based on Scuola Elementare Maria Montessori (Joined Cases C-622/16 P to C-624/16 P), that only an obligation that is objectively and absolutely impossible to perform from the moment it is imposed can invalidate a decision. However, Vivendi had in fact produced the documents during the proceedings, thereby demonstrating that compliance was not impossible.

These rulings appear to mirror the approach in Nuctech (T-284/24 R), where interim claims that producing documents would violate Chinese law were rejected as unsubstantiated.

Journalistic source protection and freedom of expression

Both companies invoked freedom of expression under Article 11 of the Charter and Article 10 of the ECHR, arguing that the information requests placed journalistic sources at risk of disclosure.

Drawing on caselaw from the European Court of Human Rights, the Court confirmed that the protection of journalistic sources is a cornerstone of freedom of the press and that any interference must be justified by an overriding public interest and protected by adequate procedural safeguards. The Court held that the EU Treaties' system of legal remedies, in particular the combination of annulment proceedings and interim measures, is capable of providing the required preventive review. It further held that a Commission decision rejecting a journalist source protection claim constitutes an independently challengeable act, and that the Commission must not access the document before the company has had the opportunity to bring proceedings and seek interim relief. Vivendi's plea of illegality under Article 277 TFEU was therefore rejected.

In order to protect journalistic sources, the Commission had adopted a procedure "inspired by" legal professional privilege: press-card holders among the named individuals could review responsive documents, identify protected source information, and provide redacted versions or withdraw documents entirely, with the company providing remaining documents together with a detailed log. These arrangements were proposed from October 2023 and incorporated into the decision of 24 January 2024. The Court rejected the argument that the safeguards were "illusory" by reason of excessive workload.

BROADER IMPLICATIONS: BEYOND MERGER CONTROL

The aftermath of these judgments is likely to extend well beyond merger enforcement. The Court has validated demands for messages going back several years, from the personal phones of senior executives and journalists, ruling that neither French law nor the ECHR could stand in the way. This will give a significant boost to Commission officials investigating potentially unlawful conduct in antitrust and other contexts. As we noted in our earlier article, the Commission has launched a public consultation on potential revisions to Regulation 1/2003, with reform options including a stand-alone evidence preservation power, expansion of inspection powers to cover business records irrespective of storage location, and the ability to summon individuals for questioning. The principles affirmed in these cases will almost certainly inform those reforms.

PRACTICAL TAKEAWAYS

Merger clearance is not a clean break

The Court confirmed that verifying potential infringements of the notification obligation, the standstill obligation, or compliance with conditions attached to a clearance decision all fall within the Commission's EUMR powers and can be pursued by binding information request after closing. Companies must assume that pre-clearance conduct remains subject to post-closing scrutiny.

Personal devices and messaging apps are firmly within scope

Any device, whether personal or professional, that has been used even just once for professional communications falls within scope, including WhatsApp, Signal, Telegram, Gmail, and SMS. The Court expressly confirmed that the "used at least once" threshold is not disproportionate, reasoning that competition infringements may deliberately involve informal personal channels.

Information governance policies are critical

Businesses that allow the use of personal devices for work purposes should adopt clear bring-your-own-device policies, ensure contractual rights to access business communications on personal devices, and enforce a strict separation between professional and personal devices to minimise the volume of private material at risk of capture by future information requests.

National law is an unreliable shield

The Court applied the principle of primacy of EU law and declined to accept French criminal and labour law arguments as obstacles to compliance, noting that the applicants had not provided sufficient proof to substantiate their national law interpretations. Unless a company can demonstrate to the required standard that compliance would lead to specific legal consequences that EU law primacy cannot override, such arguments are unlikely to succeed.

Engage proactively with the Commission's safeguards

The Court validated the Commission's procedural arrangements for sensitive personal data, legal professional privilege, and journalistic sources. It confirmed that a Commission decision rejecting a journalist source protection claim constitutes an independently challengeable act. Companies should engage with safeguards early rather than seeking to resist production wholesale.

Proportionality arguments offer the most realistic route to narrowing information requests

While wholesale challenges are unlikely to succeed, and both requests for annulment were dismissed in their entirety in these cases, proportionality arguments targeted at specific parameters may prove more successful. Challenging the breadth of the custodian list, the formulation of search terms, or the length of the time period would be more realistic, and the Commission is often open to refining these parameters in practice.

Substantive fines exposure remains live

The Commission has formally charged Vivendi with gun-jumping conduct including influencing journalistic appointments and editorial choices and placing individuals linked to the Bolloré Group on Lagardère's board while the standstill obligation remained in force. This type of conduct can result in fines of up to 10% of group-wide worldwide turnover. The evidence gathered through the information requests will inform the Commission's next steps.

Not the final word...

The General Court’s ruling can be appealed before the Court of Justice of the EU and in its press release of 9 June 2026 Vivendi indicated that it will lodge an appeal against the current judgment. The principles and findings of the General Court, which establish novel approaches and may be seen as controversial in several respects, could therefore still be overturned.

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