Overview
As we move into 2026, the European Commission has indicated that it is busy with competition infringement investigations, including cartels, across a range of sectors, including data center construction. In 2025 it adopted four decisions (one ex officio with no leniency applicants; one settlement (with 17 individual companies); and two decisions following the "normal" procedure). The Commission has stated that its current caseload comprises about 50% commenced ex officio (i.e., without a leniency applicant or whistleblower). Like many competition authorities, it has a dedicated in-house team on the lookout for potential suspicious activity which it may decide to follow up. This includes watching for public signaling (e.g., even in investor calls), using AI tools and watching unusual market trends.
With this in mind, our latest blog looks at how Commission investigations start, what to look out for and what the European courts have decided recently, when faced with appeals against the Commission's inspections.
The European Commission has the power under Regulation 1/2003 to conduct investigations into suspected infringements of competition law. This includes the power to conduct unannounced inspections (so-called "dawn raids") at premises (businesses or homes) of targets. Increasingly, as noted above, the Commission's investigations are being launched on the basis of ex officio suspicions rather than leniency applications. This means that the evidence relied on for the adoption of a decision has been gathered by the Commission's in-house team and has not been provided by the leniency or immunity applicant. To conduct an inspection, the Commission must adopt a decision under Article 20 of Regulation 1/2003. The decision must disclose the presumed facts which must be sufficient so that the target undertaking understands the subject and objective of the proposed inspection and consequently its duty to cooperate, whilst at the same time the decision must preserve the party's rights of defense. The Commission is not obliged to provide a definition of the market concerned, nor to specify the time period of the suspected infringement.
Recent European court decisions have reviewed challenges to Commission dawn raid inspections. In Symrise (Case T-263/23, decided April 30, 2025), which is the international fragrances case, the Court, reaffirmed that the Commission "must state, as precisely as possible, the presumed facts that it wishes to investigate, namely, what it is looking for and the matters to which the inspection must relate. To that end, the Commission is also required to state, in a decision ordering an inspection, the essential features of the suspected infringement by indicating the market thought to be affected, the nature of the suspected restrictions of competition and the supposed degree of involvement in the infringement of the undertaking concerned, as well as the powers conferred on the European Union investigators." Symrise challenged the basis upon which the Commission had adopted its investigation decision. The interesting feature of this case was that the Court ordered the Commission to produce to the Court, the evidence which it already had and in reliance on which it had adopted its decision. The Court then carefully reviewed the evidence and held that the decision had been properly adopted, that Symrise was able to fully understand the reasons why its premises were being inspected and the concerns which the Commission had.
The Court's decision of July 9, 2025, in Michelin (Case T-188/24) partially annulled the Commission's decision. The Court judgment is interesting for two features. In the first place, the Court also called for the Commission's underlying evidence, which it examined; and, secondly, the evidence which the Commission relied on included public statements by Michelin about future pricing intentions. The Court found that the evidence did support the Commission's argument that it showed future coordination on replacement new tires. But that the same evidence could not be relied upon to look backwards to hypothesize that earlier time periods must also have been coordinated.
In Red Bull (Case T-306/23, decided October 15, 2025), Red Bull claimed that the Commission had insufficient information on which to found its decision to launch the investigation and conduct the dawn raid. The interesting feature in this case is that the EU General Court, in exercising its judicial review function, called for the Commission's evidence in order for it to be reviewed. However, in this case the Court went further than it had in previous cases (including in Symrise and Michelin referred to above). The Commission argued that much of the evidence was confidential. The Court required, consistent with the EU principle of transparency and the rights of the defense, the Commission to disclose a list of the evidence and a summary of the confidential material to Red Bull's counsel within a confidentiality ring established for the purpose. In the event, Red Bull's procedural victory was in vain as the Court held that the evidence was sufficient on which to base the investigation decision.
As these court decisions show, parties should not assume that the Commission is correct in its assertion of jurisdiction and in the scope permitted under its investigation decision. Even though the Commission will not be expected to be fully appraised of the circumstances of the cartel under investigation (after all that is the purpose of conducting an inspection), there is a high level of transparency and disclosure owed to the target undertaking which is expected of it. The appeal court takes its judicial review duties very seriously to ensure the protection of the rights of defense and that the Commission's investigation decision is fully supported by the pre-existing evidence in its file. Disclosure of Commission evidence to the target undertaking's legal counsel within a confidentiality ring is, in appropriate circumstances, now part of that process. This role may be expected to be more important with the acknowledged increase in ex officio cases, in which the Commission will be relying on its own sourced evidence rather than on evidence provided by leniency or immunity applicants.
Key practical advice to companies is:
- Cooperate with the Commission inspection team and don't refuse access to them.
- Carefully review the authorization decision which will disclose the subject matter of the inspection, its scope and what the Commission is investigating.
- Immediately contact legal counsel for them to attend the inspection as soon as possible and share the inspection decision with them.
