Clifford Chance

The recent European General Court judgment in T-188/24 – Michelin v Commission highlights the growing antitrust risks associated with public communications, including in the context of earnings calls and investor presentations.

Antitrust risk in public communications

Antitrust scrutiny of coordination between competitors has typically focused on secret meetings and covert information exchange. However, the recent European General Court judgment in T-188/24 – Michelin v Commission sends a clear signal that even public communications, when used to reduce market uncertainty, may be subject to antitrust enforcement.

The judgment offers a unique insight into the European Commission's (EC) investigatory techniques and confirms that illegal information exchange is now more central to the EC's antitrust enforcement focus than ever before.

The EC's increased focus on – public and private – information exchange: a clear signal

The concept of 'price signalling' may be understood as the unilateral, public exchange of information regarding future strategy or market conduct, which may, subject to the facts and sector concerned, lead to illegal coordination between competitors.

Maria Jaspers, the Director of the Cartel Directorate of the EC's Directorate General for Competition, had noted in January 2025 that the agency was going to focus on the area of illegal information exchange.

The EC's ongoing investigation into several tyre manufacturers and whether they may have used earnings calls to signal pricing strategies to competitors, in potential breach of EU antitrust law, exemplifies this enforcement focus. The EC had conducted unannounced inspections (so-called 'dawn raids') at the premises of a number of manufacturers, and subsequently at a consultancy firm, in 2024. Michelin challenged the validity of the inspection decision before the European General Court.

How did the EC detect the alleged price signalling?

Prior to conducting the inspections, the EC had carried out a quantitative analysis of hundreds of thousands of earnings call transcripts, using key search terms (bigrams) across industries and jurisdictions, to identify sectors and companies with a high frequency of such terms. The EC used two categories of bigrams: nearly 100 related to strategic business decisions and over 400 related to competitor behaviour. The tyre manufacturing sector was flagged for a closer look because the major manufacturers' calls featured a notably higher frequency of certain bigrams than other sectors.

After completing the quantitative filtering, the EC then performed a manual qualitative review to assess the context and potential relevance of the communications identified as potentially problematic from an antitrust perspective.

The use of phrases such as "we want to send a signal", "the strategy is to focus on", or "we strive to stick to" was interpreted as problematic, especially when it related to future pricing intentions or strategies.

Are sophisticated AI tools driving EC antitrust enforcement?

The judgment sheds light on the EC's investigatory techniques, including the use of sophisticated tools to screen public communications and identify linguistic patterns, prior to the conduct of an inspection. The EC also scrutinised statements by company executives, even when made at a public forum and ostensibly for transparency or investor relations purposes.

The EC paid particular attention to the timing of public statements and whether they were made in a context where competitors are likely to be listening. The EC's analysis focused in particular on certain patterns: price announcements and public comments by major players often occurred at similar times and were aligned in the messaging, especially when input costs changed. The EC considered these as plausible indicators of industry-wide price coordination, justifying further investigation.

Importantly, we may see other instances where the EC initiates inspections based on its use of sophisticated tools to screen for and detect potential antitrust infringements.

A 'public signalling' theory of harm – is this a new category of antitrust breach?

The traditional focus of antitrust enforcement has been on covert communications, but the EC's investigation is neither an isolated development nor does it create a new category of antitrust breach.

The EC has previously taken enforcement action in cases where public announcements were used to facilitate coordination, including, for example, in the Container Shipping (2016) sector. In that case, the EC investigated several container liner shipping companies for routinely issuing press releases about planned price increases, which risked enabling competitors to align future pricing strategies. In particular, the announcements related to intended future price increases, which could subsequently be abandoned or modified, depending on the reactions of competitors.

The EC was willing to scrutinise public price announcements if they were made sufficiently far in advance to allow competitors to react, especially where the prices announced could still be changed or abandoned. The EC's test in that case focused on whether the price signal was intended for customers (generally permissible) or for competitors (problematic), with timing being a crucial factor – announcements made too early, or with flexibility to change, were more likely to be seen as facilitating coordination between competitors.

This approach is echoed in Michelin, where the decisive factor appears to be whether the public communication gives competitors advance notice and an opportunity to coordinate. This principle is particularly relevant when the timing of a price announcement has little practical value for customers but clear strategic value for competitors.

For example, if a company was to announce price increases for airline tickets or other services to take effect in two years’ time, while customers typically book only six months ahead, the EC could potentially view such an announcement as targeting competitors rather than customers, as the early announcement would serve little practical value for customers but provide competitors with an opportunity to adjust their own pricing strategies.

The EC concluded the investigation once the relevant companies offered commitments, i.e., undertakings related to future conduct, to stop such announcements and adjust their practices to limit coordination risks. As the investigation had been resolved by way of commitments rather than a formal infringement decision, the EC did not impose a fine.

With whistleblower and leniency applications progressively becoming less common, the EC is now relying on its own proactive surveillance and data analytics to identify potential infringements. This foreshadows a broader shift in enforcement strategy, with the EC demonstrating its willingness to use sophisticated, technology-driven market monitoring tools to systematically detect patterns in public communications that may potentially indicate anti-competitive behaviour and merit further investigation.

Key Takeaways: What do capital markets professionals need to know?

A material risk of signal failure: Capital markets professionals, and investor relations teams of companies, usually know that public communications, including as part of earnings calls, investor presentations, press releases, and industry conferences, are not immune to antitrust enforcement. For example, in the US, antitrust agencies and claimants have, in the past, pursued a number of cases against companies for public communications to competitors via earnings calls, press releases and discussions with analysts. However, the EC's investigatory techniques signal a broader shift in its enforcement strategy.

The EC will assess the substance of communications for their potential to facilitate coordination, regardless of the context in which they are made. All public communications, whether made to satisfy disclosure obligations or in response to analyst questions, therefore require careful vetting to avoid (inadvertently) facilitating coordination.

Regulatory disclosure obligations do not provide a 'safe harbour': While publicly listed companies are required to release certain information under capital markets laws, this does not override their antitrust obligations. The EC has made clear that even statements made to comply with transparency requirements can be problematic if they go beyond what is strictly necessary and disclose competitively sensitive information, such as future pricing intentions or strategic responses to market developments. Statements pose a particular risk if they disclose a future course of action that is intended but could be abandoned or modified in light of competitors' reactions.

Analyst and Investor Q&A sessions may present high-risk moments: Executives and investor relations teams often face probing questions from analysts, journalists and investors about pricing, market strategy, and competitive outlook. An unplanned response may inadvertently disclose information which has not been vetted for disclosure and competitors could use to align their strategies. With the EC signalling its willingness to analyse Q&A transcripts for signs of coordination, companies must remain focussed on ensuring that all potentially sensitive public market disclosures are properly vetted by antitrust counsel.