When the competition authority comes knocking

From a courteous request for information to an unannounced inspection (“dawn raid”): The European Commission has a broad arsenal of tools at its disposal to investigate suspected infringements of competition law. Two recent judgments by the General Court demonstrate just how far these powers extend – and where the (few) limits lie.

Vivendi: WhatsApp messages? Hand them over.

The case Vivendi/Commission (T-1097/23, judgment of June 3rd, 2026) concerned a request for information in connection with alleged gun-jumping in the Vivendi/Lagardère merger. By decision, the Commission demanded the production of emails, WhatsApp messages, and SMS text messages from fifteen individuals covering a period of almost four years. Vivendi sued – and lost across the board.

The General Court’s key findings:

• Free choice of instruments: The Commission does not first have to ask politely before issuing a binding decision. Nor does it have to justify why it did not conduct a dawn raid – which would actually be more invasive, not more lenient.
• Reasoning light: The purpose of the request must be specified, but a full disclosure of all grounds for suspicion is not required.
• Workload? No argument: The fact that responding is burdensome does not make a request disproportionate.
• Fundamental rights vs. competition: In a remarkable 60-paragraph review, the General Court makes it clear: The objective of effective competition can justify even serious interferences with Article 7 of the CFR (Charter of Fundamental Rights). Those who label documents as “private” do not thereby escape the obligation to provide information.

Red Bull: even dawn raids have their proper order

In the case Red Bull and Others v Commission (T-306/23, judgment of October 15th, 2025), an unannounced inspection was put to the test. The suspicion: anticompetitive practices in the distribution of energy drinks – specifically, special payments and incentives intended to push competing products off the shelves.

Here, too, the General Court confirmed the Commission’s broad discretion: The inspection decision must define the subject matter, but it does not have to disclose all evidence. The invasive nature of a “dawn raid” alone does not make it unlawful – the decisive factors are suitability and necessity in the specific case.

What does this mean for Austria?

The Federal Competition Authority (BWB) has a comparable set of instruments under the Austrian Competition Act: Requests for information [section 11a(2)], orders to provide information [section 11a(3)], and dawn raids [section 12(1)]. One key difference is that, while the Commission orders investigations on its own authority, the BWB requires judicial authorization from the Cartel Court to do so.

Conclusion

Vivendi and Red Bull send a clear message: The investigative powers of competition authorities are broad – and the courts support this approach. Companies should therefore reassess their compliance structures and internal communication policies in light of these rulings. After all, when the Commission comes knocking, neither the “private” label on a chat history nor a reference to the workload involved will help.

Disclaimer

This article is for general information only and does not replace legal advice. Haslinger / Nagele Rechtsanwälte GmbH assumes no liability for the content and correctness of this article.

 

22. June 2026

 

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