The European Commission has secured General Court backing of its right to demand extensive disclosure of communications on personal devices when investigating potentially problematic conduct.

Shortly after conditionally clearing Vivendi's acquisition of Lagardère in mid-2023, the European Commission opened a gun-jumping investigation into whether Vivendi exercised premature decisive influence over Lagardère, including possible interference in editorial decisions, human resources decisions and radio programming. 

As part of the gun-jumping probe, the Commission sent both parties extensive, binding requests for information (RFIs) seeking internal documents and communications covering nearly four years. The RFIs captured, among other documents, emails and instant messages (including WhatsApp, SMS, Telegram and Signal) containing specified keywords sent or received by named executives, employees, and journalists on both professional devices and personal devices which had been used at least once for business purposes. If a messaging conversation contained a keyword, the entire conversation for the period covered by the RFI would need to be disclosed.

Both Vivendi and Lagardère challenged the RFIs. Interim relief proceedings led to the suspension of the requests until the main proceedings concluded. On 3 June 2026, the General Court delivered its judgments, dismissing the companies' applications in their entirety (Vivendi SE v Commission, Case T-1097/23; Lagardère SA v Commission, Case T-1119/23).

The Court acknowledged that the RFIs interfered seriously with privacy and journalistic sources, but held the procedural safeguards to be sufficient

Vivendi and Lagardère challenged the RFIs on a range of grounds, including the broad scope of requests capturing sensitive personal data unrelated to the parties' commercial activities; potential disclosure of journalistic sources; the impossibility of producing documents; and the disproportionate burden imposed. Lagardère additionally argued that the RFI violated the principle of legal certainty by creating an irresolvable tension between the Commission's demands and the obligations Lagardère faced under French employment and criminal law.   

The General Court acknowledged that the RFIs risked serious interference with the right to private life under Article 7 of the EU Charter of Fundamental Rights, especially given the breadth of communications potentially captured from personal devices. However, the Court held that this interference was justified by, and proportionate to, the objective of protecting effective competition in the internal market. The Court took into account that personal devices only fell within scope if they had been used for business purposes at least once, the obligation targeted named senior individuals, and the Commission is bound by strict professional secrecy obligations. The Court noted that allowing undertakings to evade disclosure by labelling documents personal or using personal devices would undermine the Commission's investigative powers.

On journalistic source protection, the Court essentially considered that safeguards adopted by the Commission based on established protections for lawyer-client confidentiality granted sufficient protection.

The Court was also not persuaded by the claim that French criminal and employment law posed a genuine legal obstacle to disclosure. It found that French law could punish actions that are voluntary, in bad faith or fraudulent, but would not be infringed by compliance with a binding RFI validly issued under EU law. The Court also noted that, to the extent Lagardère had tolerated employees using personal devices for work without ensuring it could retrieve professional communications from them, any difficulty in compliance was of Lagardère's own making.

The Court also dismissed pleas against the RFIs being issued as binding decisions, which allow for the imposition of fines or periodic penalty payments for failure to respond and for incomplete or late responses. The Court confirmed that the Commission was entitled to issue the RFIs after granting clearance and to require the disclosure of documents by Vivendi's controlling group.

Practical implications

The twin judgments confirm the Commission's right to demand digital correspondence on personal devices when investigating suspected violations under the EU Merger Regulation. The Court backed the Commission's stance that, once a personal device or account had been used even once for business, it fell within scope. Although these cases concern an investigation under the EU Merger Regulation, the underlying principles on personal device access, privacy, and journalistic source protection are likely to embolden Commission practice in investigations of suspected infringements of the EU prohibitions on anticompetitive agreements and abuse of dominance.

Companies subject to such demands may take some comfort from the Court's focus on procedural safeguards. In this case, the Commission enhanced its protections incrementally, formalising the virtual data room and journalistic source procedures only after the parties had filed their challenges before the Court. The absence of those safeguards in the original RFIs was not sufficient to invalidate them, so companies subject to similar requests should consider focusing on negotiating practical protections rather than relying on procedural deficiency arguments to defeat an RFI outright.      

These cases also serve as a reminder of the scope of the standstill obligations in merger reviews. Purchasers may face scrutiny for exercising premature decisive influence through informal means and what matters for decisive influence is not a set list, but rather depends on industry context (with editorial decisions and programme scheduling, as well as hiring decisions, apparently in the spotlight in this case).

Next steps

Vivendi has announced its intention to appeal the General Court's decision to the Court of Justice of the European Union.

The Commission also needs to decide whether to pursue its gun-jumping proceedings, which can carry a fine of up to 10% of worldwide group turnover. In July 2025, the Commission sent a statement of objections outlining its preliminary view that Vivendi had breached the standstill obligation under the EU Merger Regulation during three periods: prior to notification; between notification and the Commission's conditional clearance; and in the period between that clearance and approval of the purchaser of the divested publishing businesses. If found, an infringement spanning these three periods appears likely to attract particularly tough penalties from the Commission.