In the past year, the General Court has ruled on several challenges to Commission dawn raids initiated against Symrise,[1] Michelin,[2] and Red Bull,[3] clarifying the limits of the Commission’s investigatory powers. In all three cases, the General Court upheld the legality of the inspections,[4] though refined the evidentiary and procedural standards governing dawn raids.[5] The most recent Michelin and Red Bull judgments, in particular: (i) clarified what constitutes “sufficient indicia” for the Commission to initiate a dawn raid; (ii) validated the Commission’s use of new digital tools to gather indicia for dawn raids and its practice of gathering information onsite and later reviewing that information over extended periods of time at the Commission’s premises (“extended inspection”); and (iii) confirmed the Commission’s margin of discretion in selecting the most appropriate investigative measure—such as dawn raids or requests for information—in antitrust investigations.
I. What constitutes “sufficiently serious indicia” to initiate a dawn raid?
The General Court confirmed that a Commission inspection must be justified by “sufficiently serious indicia” substantiating the possibility of an anticompetitive practice.[6] This standard does not require the Commission to prove that the suspected behavior exists, but only to demonstrate a reasonable “suspicion of an infringement.”[7] Michelin and Red Bull have further confirmed that (i) where a dawn raid covers distinct time periods during which anticompetitive conduct may have occurred, the Commission must adduce sufficiently serious indicia for each relevant period, and (ii) a market participant’s detailed complaint may, on its own, constitute indicia sufficiently serious to justify an inspection.
Sufficiently Serious Indicia for Each Period Under Investigation
In Michelin, the Commission initiated a dawn raid in relation to documents falling within two periods, the “main period” and an “earlier period.”[8] The General Court held that the Commission had not “sufficiently established” that it was plausible that Michelin had coordinated prices during the earlier period.[9]
In that case, to identify supporting “indicia” of anticompetitive conduct, the Commission conducted a detailed review of publicly available earnings call transcripts from both the main and the earlier periods.[10] This review, in the General Court’s view, yielded sufficiently serious indicia of potential collusion only for the main period. The General Court found that it “must take into consideration” the Commission’s inability to provide similar evidence that was contemporaneous to the earlier period, in circumstances where the Commission was able to provide such indicia for the main period,[11] and annulled the portion of the Commission’s decision that related to the earlier period.
Competitor Complaints as a Basis for Conducting Dawn Raids
In Red Bull, the General Court found that the Commission had collected sufficiently serious indicia across all three categories of suspected behavior in that case. The detailed 80-page complaint that a “well-informed” competitor submitted against Red Bull was central to this finding.[12] The General Court held that a “coherently formulated written complaint” from a market participant may, on its own, constitute indicia sufficiently serious to justify an inspection.[13] Moreover, the Commission did not simply rely on the informal complaint but repeatedly tested its plausibility by requesting successive rounds of supplementary information from the complainant: five detailed supplementary submissions covering market definition, market shares, de-listings, alleged anticompetitive strategies, corporate structure, turnover estimates, additional indicia and further clarifications through multiple emails and telephone calls with the complainant.[14] The General Court also confirmed that the Commission is not required to contact any third parties in order to verify the allegations made in the complaint prior to an inspection, as to do so would jeopardize the element of surprise essential to unannounced inspections.[15]
II. Use of Digital Tools in Dawn Raids
Market-Surveillance Techniques to Gather Indicia of Anticompetitive Conduct
Michelin sheds light on the Commission’s digital market-surveillance techniques that served to gather indicia used to justify a dawn raid. To investigate anticompetitive coordination, the Commission established a system of market monitoring to analyze “several hundred thousand earnings calls in various sectors and in a number of geographical areas to identify suspicious behavior.”[16] The Commission first conducted algorithmic screening of these earnings calls, searching for specific two-word combinations (“bigrams”) on strategic decisions, price expectations, and references to competitors’ behavior.[17] The Commission designed these bigrams to identify potential signals of coordinated pricing intentions embedded in public investor communications. The Commission then performed a manual “qualitative” review of the results to identify statements that could be plausibly interpreted as price signaling, such as “we want to send a signal” or “the strategy is to focus on.”[18]
The General Court accepted this screening methodology as lawful and adequate to gather indicia of anticompetitive conduct necessary to justify an inspection. Michelin contended that the “quantitative” algorithmic analysis was incapable of providing any indication of collusion, in essence, because the selected bigrams were frequently used by companies and their use could be justified by legitimate purposes, such as responding to analysts’ questions.[19] The General Court rejected these arguments as (i) the quantitative analysis merely enabled the Commission to identify the tire manufacturing sector as potentially problematic, and (ii) the Commission’s subsequent qualitative analysis was the “decisive factor” in identifying the suspicious statements justifying the dawn raid.[20] This confirms that the Commission can rely on automated scans of publicly available information to search for indicia of potential anticompetitive conduct, although the General Court also appeared to lend weight to the Commission’s subsequent manual review to identify these materials.[21]
Extended Inspections
In Red Bull, the General Court affirmed the Commission’s practice of gathering information onsite and later reviewing that information over extended periods of time at the Commission’s premises (so called “extended inspection”), relying on Nexans.[22] In Red Bull, the Commission seized five terabytes of data onsite, followed by a request for an additional 16.6 terabytes of information.[23] The Commission estimated that it would require at least six months for the analysis of this data.[24] Red Bull argued before the General Court that the decision was disproportionate in terms of the amount of data seized and the duration of the “extended inspection”. However, the General Court held that such offsite reviews, even when they extend over several weeks, are proportionate, particularly given the volume of electronic communications held by modern undertakings.[25] This “extended inspection” model is becoming the operational standard for dawn raids, affording the Commission the possibility to review data in unprecedented quantities.
Red Bull also lodged a separate appeal seeking reimbursement of the additional legal costs incurred as a result of the “extended inspection” and relocating of the investigation from Austria to Brussels. In Nexans, the Court of Justice held that, if the continuation of the inspection through an “extended inspection” is liable to give rise to “additional costs for the undertaking under inspection solely as a result of that continuation,” the undertaking concerned may request the Commission to reimburse those costs.[26] Red Bull has argued, based on Nexans, that the “extended inspection” amounted to “a disproportionately lengthy and far-reaching continued inspection.”[27] The matter is pending before the General Court.
III. The Commission’s Discretion in Selecting Investigative Measures
Both Red Bull and Michelin reaffirm the Commission’s broad discretion to choose between the different instruments provided for in Regulation 1/2003,[28] such as a request for information under Article 18 and an inspection pursuant to Article 20(4).[29]
In Michelin, the General Court clarified that the Commission can legitimately opt for a dawn raid rather than a request for information if it considers that, without an unannounced inspection, relevant information might be compromised or destroyed.[30] The choice of investigative measure depends on “the circumstances specific to the ongoing investigation, rather than on factors such as particular seriousness or extreme urgency.”[31] This choice may also legitimately reflect the Commission’s concern that potentially incriminating material would not be voluntarily provided.[32]
Similarly, in Red Bull, the General Court rejected claims that the Commission should have pursued less intrusive means than a dawn raid.[33] It emphasized that inspections may legitimately be required where the information sought by the Commission reveals anticompetitive behavior and would not realistically be disclosed voluntarily through requests for information.[34] This was the case particularly in light of the high fines imposed for antitrust infringements compared to those imposed for the provision of inexact, incomplete, or misleading information.[35]
IV. Main Takeaways
The Michelin and Red Bull judgments confirm and clarify the relevant standard for the initiation of dawn raids and the Commission’s margin of discretion in selecting the most appropriate investigative measure in antitrust investigations.
- The “sufficiently serious indicia” standard requires the Commission to collect evidence of an infringement for every period under investigation, with a focus on evidence contemporaneous to each period.
- The Commission may obtain sufficiently serious indicia based exclusively on a market participant’s complaint where it is detailed and coherently drafted, even absent third-party corroboration.
- The Commission may use new digital tools to gather indicia for dawn raids, such as the mass and automated review of publicly available information, and conduct “extended inspections” that allow the Commission to review larger volumes of information over a longer period of time at the Commission’s premises.
- The Commission retains a margin of discretion in selecting the appropriate investigative measure—such as dawn raids or requests for information—in antitrust investigations. The Commission can legitimately carry out an inspection if it has sufficient grounds to consider that relevant information could be compromised or concealed.
[1] Symrise AG v. European Commission (Case T-263/23) EU:T:2025:417 (“Symrise”).
[2] Compagnie générale des établissements Michelin v. Commission (T-188/24) EU:T:2025:686 (“Michelin”).
[3] Red Bull GmbH and Others v. European Commission (T-306/23) EU:T:2025:959 (“Red Bull”). Red Bull appealed the judgment, inter alia, on the grounds that evidence may not be sufficiently reliable if it originates from a single competitor and that the Commission’s decision was disproportionate as regards the continued inspection, cfr. Application (OJ) in Red Bull v. Commission (C-865/25 P). The matter is pending before the Court of Justice.
[4] In Michelin, the appeal succeeded in part. The General Court annulled the portion of the Commission’s inspection decision that related to one of the two periods under investigation.
[5] Out of more than 40 dawn raids conducted since 2015, only eight were appealed over the past 10 years. Notably, three of these eight appeals were lodged in the last couple of years, showcasing an upward trend in challenging dawn raid decisions.
[6] Michelin, para. 154.
[7] Michelin, para. 86; Red Bull, para. 61.
[8] Michelin, para. 6.
[9] Michelin, para. 153.
[10] Michelin, para. 95.
[11] Michelin, para. 143.
[12] Red Bull, para. 72.
[13] Red Bull, para. 77.
[14] Red Bull, para. 78.
[15] Red Bull, para. 81.
[16] Michelin, para. 95.
[17] Michelin, para. 92.
[18] Michelin, paras. 92–93 and 113.
[19] Michelin, para. 100.
[20] Michelin, paras. 101–102.
[21] Michelin, para. 102.
[22] Nexans France and Nexans v Commission (T-449/14), EU:T:2018:456.
[23] Order of the President of the General Court of 29 September 2023, Red Bull and Others v Commission (T-306/23 R) EU:T:2023:590.
[24] Red Bull, para. 116.
[25] Red Bull, para. 127.
[26] Nexans France and Nexans v Commission (Case C-606/18 P) EU:C:2020:571, para. 89.
[27] Application (OJ) in Red Bull v European Commission (Case T-682/24).
[28] Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty, OJL1, 4.1.2003 (“Regulation 1/2003”).
[29] Red Bull, para. 129; Michelin, para. 55.
[30] Michelin, paras. 166–167 and 169.
[31] Michelin, para. 157.
[32] Michelin, para. 170.
[33] Red Bull, para. 89.
[34] Red Bull, para. 110.
[35] Regulation 1/2003, Article 23(1). Red Bull, paras. 126–129.